BELL PTA (PVT) LTD v CAR PARK INVESTMENTS (PVT) LTD 2016 (2) ZLR 100 (H)

Flynote

Contract: " formation " contract based on a purchase order and memorandum of agreement not signed and having no start date " no clear offer and acceptance needed " valid if it was acted on

Headnote

The plaintiff had an agreement to supply a technician to maintain the machinery it had supplied to the respondent. The respondent had been paying for labour on an ad hoc basis, but had made a purchase order to the plaintiff for the supply of the technician on a full-time basis at 200 hours a month. The plaintiff sent a memorandum of understanding to that effect which had never been signed, but the technician was nevertheless supplied on a full-time basis. However, some errors in the billing were made and an hourly rate continued to be used, resulting in the respondent being under-invoiced. The respondent decided it would be advantageous to cancel the relationship and employ the technician directly, and thus wrote to the plaintiff cancelling the arrangement. The plaintiff then billed the respondent for the previous three months at 200 hours per month. The respondent denied that any such contract existed as the memorandum had not been signed.

Held, that the existence of a contract did not depend on a firm offer and acceptance. The fact that a full-time technician had been supplied and the respondent had proceeded on that basis was sufficient to conclude that a contract was implicitly agreed. That was in fact the contract that the respondent was terminating when it wrote to the plaintiff. The respondent was ordered to pay the amount claimed by the plaintiff, minus the amounts already paid in terms of the hourly invoices.