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TOC o “1-3” h z u Question 1 PAGEREF _Toc378008238 h 0Definition of a contract: PAGEREF _Toc378008239 h 0Offer and acceptance PAGEREF _Toc378008240 h 1Consensus ad idem PAGEREF _Toc378008241 h 1Competency of the parties PAGEREF _Toc378008242 h 1Free consent PAGEREF _Toc378008243 h 1Lawful consideration PAGEREF _Toc378008244 h 2Law object PAGEREF _Toc378008245 h 2Certainly and possibility of performance PAGEREF _Toc378008246 h 2Legal formalities PAGEREF _Toc378008247 h 2Question 2 PAGEREF _Toc378008248 h 3Definition of constitution PAGEREF _Toc378008249 h 3Written constitution PAGEREF _Toc378008250 h 32) Unwritten constitution PAGEREF _Toc378008251 h 4Rigid and flexible constitution PAGEREF _Toc378008252 h 4Unitary and federal constitution PAGEREF _Toc378008253 h 5
Discuss the essential elements in law of contract
Define a constitution, discuss at least three types of a constitution
Question 1The law of contract in Kenya is contained in Kenyan Contract Act, CAP 23 (laws of Kenya). Section 2 (1) stipulates that the common laws of England relating to subject to modification is applicable in Kenya.
Definition of a contract: A contract is an agreement between two or more persons giving rise to regal obligation. It is also regally binding agreement which will be enforced by the court. Salmond defines contract as: “an agreement creating and defining obligation between parties.” While Hasbury defines contract to be: “an agreement between two or more person which is intended t be enforceable at law and is constituted by the acceptance by one party of an offer made to him by the other party to or abstain from doing the act.” Individual enter into several contracts in their daily lives without really being conscious of the fact. For example, purchasing a newspaper, or a packet of milk, or going to a cinema, or travelling on a bus and so on. The concept of a contract contains two elements namely: obligation and agreement.
Obligations are undertaking to do or abstain from doing definite acts. The obligation must be such is enforceable by law. In other words, it must be legal obligation and not merely moral, social or religious. A contract comes into being or existence when definite offer has unconditionally been accepted. The offer will ripen into a contract when a person who has complied with the terms of the offer and who is aware of the existence of the offer accepts it. All contracts are agreements but all agreements are not contracts. All agreements are contracts if they are made by the free consent of the parties complement to contract, for a lawful object and not expressly declared to be void. A valid contact contains the following elements:
Offer and acceptanceIn order to create a valid contact, there must be an agreement between two parties and an agreement involves a valid offer by one party and a valid acceptance of the same by the other party. The party must intend their agreement to result in legal relations. This means that the parties must intend that if one party tends to perform his promise, he/she shall be answerable for that failure in law. Hence, where a father fails to pay his son the promised pocket money, the son cannot sue the father because it was purely a domestic arrangement. This is clear that all agreements which do not result in regal relations are not contracts.
Consensus ad idemThe minds of both parties must be ad idem. In other words, the two parties must have agreed about the subject matter of the contract at the same time and in the same sense. For example, if A who owns two cars a Toyota and a Mazda offers to sell B one car, A intending it to be the Toyota, B accepts the offer thinking that it is the Mazda, there is no consensus and hence no contract.
Competency of the partiesThe parties to the agreement must be competent to contact. If either of the parties to the contract is not competent to contract, the contract is not valid. Competent persons to contract are;
Who are of the age of majority according to the law to which they are subject
Who are of sound mind
Who are not disqualified from contracting by law to which the are subject
Free consentAn agreement must have been made by a free consent of parties. Consent may not be free either on account of mistake in the mind of the parties or on the account of the consent being obtained by some unfair means like coercion or fraud, and misrepresentation or under the influence. In case of mutual mistake, the consent would be notable.
Lawful consideration
All contracts must be supported by consideration. Gratuitous promises are not enforceable a law. An agreement made for unlawful consideration is void. Lawful consideration requires both presence of consideration and of the lawfulness of consideration i.e. a promise to obtain or B an employment in the public service and B promise to pay KShs. 10,000: the agreement is void as the consideration for it is unlawful.
Law object The object of an agreement must b lawful. Object has nothing o do with consideration. It means the purpose or design of the contract. Thus, when one hires a house for use as a brothel, the object of the contract is to run a prostitution house. The object is said to be unlawful if;
It is forbidden by law
It is of such nature that if permitted, it would defect the provision of law.
It is fraudulent
It involves an injury to the person or property of another. The court regards it as immoral or opposed to public policy.
Certainly and possibility of performanceThe terms of a contract may be void on the ground of uncertainty, thus a purported acceptance of another to buy a lorry on hire purchase terms are never agreed. The terms of agreement must also be capable of performance. An agreement to do an impossible act cannot be enforced.
Legal formalitiesAn oral contract is a perfectly valid contract except in those cases where writing registration and so on is required by some statute. In Kenyan writing is required in cases of sales, mortgage, lease, and gift of immovable property, negotiable instruments, memorandum and articles of association of a company and so on. Contracts can be classified in the following ways;
According to validity
According to formation
According to the basis of performance
Question 2Definition of constitutionConstitution is a written document having legal sanctity which set out the framework and the principle functions of the organs of government of a state. It declares the principle of governing the apparatus of the organs. It is also the system of laws and basic principles that a state, a country or an organization is governed by. The constitution of Kenya asserts that “…. this constitution shall be the supreme law of the land any law not consistent with the constitution shall be null and void to the extent of its inconsistent. Where the provisions of an act of parliament are in conflict with the constitution, those provisions are void to the extent to which they are in conflict with the constitution, although the constitution itself is a special act of parliament.
Nations of the world are governed by a set of rules which is described in law as a constitution. Modern constitution is intact contained in a formal document known as “the constitution.” This form of constitution is described as a written law in the form of an act of parliament. Different nations all over the world have different types of constitutions which have come into being through many years and process. Constitution can be classified as;
Written constitutionA written constitution is that found in one document and codified called the constitution (For example, “the constitution of Kenya). The constitution of Kenya (the current one) has got eighteen chapters and 264 articles. Supremacy of this constitution states that it is the supreme law of the republic and binds all persons and state organs at both levels f government. According to this law, sovereign power belongs to people of Kenya and shall be exercised only in accordance with this constitution.
2) Unwritten constitutionUnwritten constitution means that the constitution is not codified (written). British constitution is an example of unwritten constitution. This constitution rules shapes and determines the formal regal nature and functioning of government. The regal document which amount to the constitution in the united kingdom are contained in several sources for example, old collection of historic documents, acts of parliament, common laws, constitutional customs and traditions (as old as 800 year) and long political usages or practices. Hence, some parts of the British constitution are written but many more are not.
Additionally, the learning of the government will be based upon the precedent that is the important decisions of the court of law which is also applicable in some cases in Kenya. When India became independent in 1930, it developed one of the longest written constitutions in the world which has got 448 articles written in 22 parts. When written in English words, it has got about 117,369 words and it has undergone 94 amendments
Rigid and flexible constitutionFlexible constitution
A flexible constitution s one whose principle are alterable and its constitutional rules can be changed by ordinary process of an act of parliament or general acceptance of a new convention. It has no special procedures laid down in the constitution for amendment. For example,. British constitution is a practical example of a flexible constitution because it is unwritten.
A rigid constitution
A rigid constitution has to be amended following a special procedure in the constitution for example a referendum may be required (see chapter 16 article 255, 256 and 257) of the constitution of (Kenya National council for law reporting, 2010).
Unitary and federal constitutionUnitary constitution
A unitary government means that there is a government at the centre with all the legislature executive and judicial powers.
From the centre, the power permeate to the lowest level
There is one sovereign legislature and executive. This kind of constitution emphasizes the oneness of nation and their views of nation and the state correspond.
It has been argued that thus, that type of structure creates unity among the people while the federation creates disunity. Some example of unitary government are great Britain and France
Federal constitution
The criteria here are territorial division of power between the central government and its region, provinces, states and so on. If a state is marked by a regional division of power between the central and its component units, it is then a federal system. Sometimes, to determine whether a state is federal or not is to see whether there is division in the legislature and the executive as provided for in the constitution. (In Kenya, we are yet to see what it will be when the counties, governors, senators system comes in place in 2012). India and the US are perfect examples of federal governments guided by their constitutions.
References
Hodgin R. W., (2007), law of contract in east Africa, Nairobi, KBL
Jackson T. (2009), Laws of Kenya, 3rd edition Nairobi, KBL
National council for law reporting, (2010), Constitution of Kenya 2010, accessed 20 August
2011, http://www.kenyalaw.org/klr/fileadmin/pdfdownloads/Constitution_of_Kenya__2010.pdf
