INTRODUCTION

Private law, also known as civil law, deals with the relationships between
individuals or entities such as corporations and focuses on resolving disputes
between them. It’s primary aim is to regulate interactions between private parties
and ensure fairness and justice in their dealings. Private law is also said to be a
set of norms regulating relationships between individuals. It has no regard to
particular purposes or intentions of an individual and therefore has no basis of
preference or picking sides between individuals. The relationship is between
individuals who are equal and who are self determined.

Private law is aimed at protecting parties involved in the relationship as well as

maintaining equality between them. Private law also regulates economic and
social activities based on legal quality. It consists of two principles; which are
firstly, an autonomy of the will, which establishes that interactions between
individuals must be carried out on their own free will and without deception,
obligations, or violence. Secondly, equality before the law, which is based on the
idea that individuals when performing private acts are subject to the legal
framework and should maintain equality. Further, no individual must escape the
designs of the law.1

It is worth noting that this principle is enshrined in the concept of freedom of

contract, which allows individuals to freely negotiate and enter into binding
agreements without interference from the government or other third parties.2
Another distinction of the nature of private law is that Private law is a significant
area of legal study, that places a strong emphasis on safeguarding individual rights
and interests. For instance, within private law, contract law plays a pivotal role in
ensuring that parties can enforce their agreements and hold each other
accountable for any breaches.

1
Justifying Private Law Remedies Pg. 10
2
https://www.lawteacher.net › lectures Tort Law Remedies Lecture
Private law further encompasses a wide range of legal principles and rules that
govern the relationships between individuals and entities. It encompasses areas
such as contracts, property, torts, family law, and business law.3 Contracts, as an
aspect that is catered for in private branches, governs agreements between parties,
ensuring that promises made by one party are legally enforceable against the other
party if not fulfilled. Penalties, however, are awarded to the parties that breach
agreements as per contracts.

Property Law is another area of law that deals with the ownership use and transfer
of property, including real estate, personal property, and intellectual property, and
is catered for as well under private law. Tort law us another branch that deals with
the involvement of individuals and addresses civil wrongs that cause harm to
individuals or their property, providing remedies for victims of negligence,
intentional harm, or strict liability.

More to this, family law, yet another branch in private law regulates legal
relationships within families, such as marriage, divorce, adoption, child custody,
and support. Business law covers legal issues related to the formation, operation,
and dissolution of businesses, including contracts, partnerships, corporations, and
commercial transactions. Lastly, but not the least succession law, which is also
known as estate law, succession law deals with the transfer of property and assets
upon death, including wills, trusts, and probate.4

Another important aspect of private law is the role of the courts in resolving
disputes between individuals. 5When parties are unable to resolve their disputes
through negotiation or alternative dispute resolution methods, they can turn to the
courts for a resolution. The courts play a vital role in interpreting and applying

3
https://www.britannica.com.
4
Law teacher
5
https://study.com › academy › pub…Public vs. Private Law | Definition, Differences & Examples
the law to individual cases, ensuring that justice is served and order is maintained
in society. The case of Hadley v Baxendale6

Conclusively, private law is significant in that it also encompasses private

relationships between private individuals or other entities. That is, relationships
between entities and individuals based on the law of contract or torts are governed
by private law, and are not considered to be within the scope of public law.
Resolution of disputes is done by the courts of law by providing an independent,
fair and impartial tribunal for parties to present their cases and equally seek
justice. On this basis, we can say that the nature of private law is to facilitate
private ordering, allow individuals to structure their lives where a right or legal
interest is violated. Hence, private law is primarily concerned with resolving
disputes between private parties through legal mechanisms such as litigation,
mediation, and arbitration, with the goal of upholding rights, obligations, and
fairness in private relationships.

DEFINITION OF PRIVATE LAW

Private law is a branch of law which involves the relationship between individual,
private entities or busnesses such as corperatives , organisation etcetra. private
law governs the rights, duties and obligation that individuals owe to each other in
their private interactions and this branch of law covers various areas such as
contract law, tor law, family law and commercial law t mention a few. Private law
has charactoristic namely are voluntary relationship, civil remedies, protecting
individual rights and also adverserial process.
NATURE OF PRIVATE LAW

Private law is the law that is concerned with the relationship between private
individuals who are natural persons or legal entities encompassing the contracts,

6
[1854] EWHC 170
tort, property, trusts and family law. Private law mainly deals with the disputes
pertaining private individuals and provide a framework for dispute resolution and
protection for rights and regulations of social interactions within the society
through civil litigation.

The private law under civil litigation deals with legal process of dispute resolution
between private individuals who are the claimant and the defendant and it is the
defendant who is able to bring an action against the defendant. Private law also
relates to natural persons, as human beings are born and exists as living organisms
thus possesses legal rights and obligations. The legal entities recognized by law
as having separate legal rights and obligations from the individuals who formed
them such as non-profit organizations, cooperation’s and sole proprietorships.

CHARACTERISTICS OF PRIVATE LAW

The following are the characteristics of private law

In private law there is freedom of contract, meaning that it allows individual to

enter into legal agreements and set their own terms of the agreement. This can be
seen in the case of Carill v Carbolic Smoke Ball Co (1893) 1 QB 256 7where
the court upheld a unilateral contract when the company promised a reward to
anyone who used their product and contracted influenza.

In private law disputes follow the adversarial system where the aggrieved party
alleges there has been an injury and seeks redress from the defendant as seen in
the case of Donoghue v Stevenson (1932) AC 5628, where the court established
the modern law of negligence and the plaintiff successfully sued for damages due
to the contaminated drink.

7
(1893) 1 QB 256
8
(1932) AC 562
Private law governs the relationship between private individuals and entities as
seen in the case of Solomon v Solomon and Co Ltd (1896) AC 229 where the
House of Lords upheld the principle of separate legal personality of a company
will be upheld even if a company is a one-man company.

Private law sectors rely on legal doctrine and precedents, statutes as a guide in
decision making as seen in the case for Central London Property Trust Ltd v
High Trees House Ltd (1947) KB 13010 where the doctrine of promissory
estoppel in English law was established. The doctrine prevents a party from
backing out of a promise that the other party had relied on even if it wasn’t
supported by consideration.

IMPORTANCE OF PRIVATE LAW

The following are the importance of private law:

Private law protects rights of individuals as it governs relationships between

private individuals and entities to ensure that their rights are respected.

Private law provides a legal framework, the legal framework to enforce contracts
to individuals and businesses to enter to enter into agreements with confidence
knowingly that breaches can be remedied through legal operations of the law.

Private law promotes fairness as it ensures that fairness and equity in the
relationship of the parties is present and this is done through equitable remedies
which may be offered to a wronged party.

Private law protects property, it safeguards individuals right to use and own
property and prevents fraudulent means of acquiring property.

9
(1896) AC 22
10
(1947) KB 130
Private law facilitates transactions, this is done by setting up rules and regulations
to conduct activities thereby promoting economic activities and smooth running
of businesses.

Private law also resolves disputes between parties such as litigation to private
individuals and entities.

CONCLUSION

The principles of private law are common to all societies, since they largely
depend on the basic relationship of humans, as regards property and the family,
private law is not universal.

THEORIES OF REMEDIES
Theories of remedies refer to the framework, principles, concept or rationale that
underlies the transits of legal and equitable remedies in resolving dispute. The
theory of remedies involves the examination, purpose nature and justification of
remedies within a legal system.
COMPENSATORY THEORY : this theory holds that the primary purpose of
legal remedies is to compensate the injured party for the harm or loss they have
suffered as a result of the defendants wrongful act or conduct. as remedies aims
to restore the aggreved party to the position they would have been in had the
wrongdoing not occurred. This is archeived through awarding of damages in the
case of Photo Production ltd v Securicor Transport ltd, explained the basis of
remedy of damages, Lord Diplock stated that: every contracting party in the
event has a secondary obligation to pay monetary compensation to the other party
in the event they breached the contract.
EQUITABLE THEORY: Equitable remedy are judicial relief developed by the
courts of chancery from about time of HENRY VIII to provide a more flexible
response to the changing social conditions then was possible in a precedent based
on common law.
According to LORD THOMAS EGERTON ALSO KNOWN AS LORD
ELLESMERE described equity as to soften and modify the extremity of the law.
This means that equity wasn’t to vary with the common law but rather tender its
harshness. The work of lord Ellesmere left on short manuscript, this paper which
part of a larger project on intersection between national law and transnational
legal in the late sixteenth and early seventeenth century, is an attempt to
understand lord ellesmere understanding and use of law of nation. Lord
Ellesmere decision was appreciated by many and was resented by common law
judges because he reversed their decision [11].

In Lord huddle v lady huddle [1705] LORD COWPER gave a brief

explanation about equity “Equity is not a part of law, but a moral virtue which
qualifies, moderates and reform the rigor, hardness and the edge of the law”. The
statement clearly emphasizes the fact that equity is a separate system of law and
it also moderates the common law. Furthermore as equity is a separate system of
law it has separate remedies as well as in equity there injunction, specific
performance, compensation, rescission and more. Mainly equity had to
supplement the common law as common la didn’t have appropriate remedies and
no adequate writ system [12].

DETERRENCE THEORY, remedies serves as a deterrent to solve wrongful

acts or conduct by imposing penalties on the wrong doers. it holds individuals
and entities accountable for their actions and imposes sanctions. The legal system
seeks to deliver justice as seen in the case of SOMMY LASCO KAVINGA V
THE PEOPLE,13in this case the appellant serves as a pastor or apostle at the spirt
of Christ fellowship church in Lusaka. The subordinate court on the accounts of
rape, attempted rape and two incidental assault involving two family members

11
http/www.wikipedia.com
12
www.lawteacher.com

13
Appeal No. 51 of 2018 ( 21 August 2019)
convicted him. The court of appeal upheld the convictions against kavinga and
referred the case to the high court for sentencing. Though the case does not
explicitlydiscussdeterrence, the connections interlinking the theory and the case
are that the appeal upholding the sentence is an example specificdeterrence. By
punishingkavinga the court aims to teach him a lesson and prevent him from
reoffending which is the core of deterrence as it helps to maintain and fulfill the
purpose of law bypreventing the would be wrongful acts from taking place.

CORRECTIVE JUSTICE THEORY , this theory emphasizes the importance

of rectifying or correcting injustices succeeded by one party at the hands of
another .Remedies under this theory aim to restore the balance of justice between
the parties and to uphold the rights and obligations inherent in their relationship.
Which is seen in the case of CITIBANK ZAMBIA LIMITED V DUDHRA14,
in this case the appellant is an industrial bank while the respondent is a lawyer. In
December 2010 the respondent was engaged as a relationship manager in the
appellants bank, for a couple of years the employee/employer relationship
flourished without any incidents or fatal disagreements in there structured
association. However due to unforeseencircumstances the flourishing
relationship turned sour and lead to the separation of the two parties.

The respondent felling grossly distressed about the event leading to the parting
with his employer and that he was convinced that he was, at any rate he was
shabbily treated, the respondent lodged a complaint in the industrial relations
court on 23rdJuly 2013. He sought out numerous reliefs, chief among which was
for unfair, wrongful and unlawful termination of contract of employment. The
appellant shortly resisted the claim, condemning all the while that the termination
was legal.The appeal successful, hence clearly depicting the core or main purpose
of this theory.

14
(Appeal No. 6 of 2022) 2023 ZMSC 1(10 March 2023)
In conclusion, private law is a branch of law concerned with private persons,
property and relationships, which neither regards the particular purpose of a
parties nor has any particular purpose of its own and therefore has no
bias.15Remedies are the legal means to recover a right, prevent or obtain redress
for a wrong16. A theory being a general or abstract principle of a body of facts,
science or an art, there are many theories of remedies in which some are the
equitable, the compensatory, the theory of deterrence and the corrective justice
theory.

INTRODUCTION

This presentation is aimed at discussing the remedy of specific performance.

Before the 70’s, specific performance was not recognized or provided for under
common law. Litigants’ rights were confined to being awarded damages for the
loss caused to them. However, courts of equity recognized that cases involving
immovable property distinguished themselves since damages were not always an
adequate remedy. As a result, the doctrine of specific performance was
established to entitle, protect or restore a party’s right to possession of the land in
which they hold a title. The development of this doctrine in India was shaped by
British common law, and it was formally established through the enactment of
specific Relief Act in 196317

Specific performance may be defined as an order of the courts for the party in
default to carry their obligations under a contract. A decree of specific
performance is a decree issued by the court which constrains the contracting party
to do that which they have promised to do.18 The supreme court in Trans-

15
P10, Justifying private law Remedies , Charles EF Rickett 2006
16
https://www.merriam-webster.com
17
https://www.linkedin.com/pulse/doctrine-specific-performance-vllp2017
18
Contract law in Zambia- Sangwani Patrick Ng’ambi and Chanda 2nd edition pg. 453
continental Limited and Andrew Robb v Donald Mclntosh and Eric
Routledge19 endorsed the following definition of specific performance when it
held that:

Specific performance is an equitable relief given by the court to enforce against

a defendant the duty of doing what he agreed by contract to do. The availability
of the remedy of specific performance does not of its self-import the existence of
some equitable interest, all it imports is the inadequacy of the common law
remedy of damages in the particular circumstances.

In cases when the court grants specific performance, the addressee is required to
carry out the provisions of the agreement. These phrases have to have an
optimistic tone. In other words, they force the side who is in violation to take
action. In contrast injunctions are of negative nature and might be compared to
this. They obstruct the violating party from taking any action.

GENERAL RULE

Specific performance is usually granted if in the circumstances it is just and

equitable to do so. Further, specific performance is more likely to be awarded
where damages cannot adequately compensate a party for breach of the contract.
In Mwenya & Randee v Kapinga.20 In this case, the 1st appellant agreed to sell
her house to the respondent for the sum of k12,000,000, meanwhile she asked the
respondent to pay up k8,000,00 to enable her redeem the mortgage under which
the house was. The respondent paid the said amount and the first appellant
redeemed the mortgage accordingly. But when the respondent wanted to pay the
rest of the purchase price, the first appellant refused to accept the money saying
the respondent took long to find it. She then signed a second contract of sale with
the second appellant and the respondent sued. The high court found in favor of

19
Trans-continental Limited and Andrew Robb v Donald Mclntosh and Eric Routledge
20
Mwenya & Randee v Kapinga (1998) SJ 12 (SC)
the respondent and ordered specific performance of the contract. The appellant
appealed to the supreme court and the supreme court dismissed.

However, it is rarely granted because of the difficulty of overseeing it, in Ryan v

Mutual Tontine west minister chambers association21, under a tenancy
agreement the landlord was obliged to provide a hall porter to take care of the
common areas. The person employed failed to do the work properly. An order for
specific performance was refused because the court could not supervise the work.
This contrasts with Posner v Scott-Lewis22. Which again involves an obligation
to provide a hall porter. The court could award the remedy here where the landlord
had merely failed to employ one.

EXCEPTIONS

There are limits to when the court may grant an order for specific performance.
Certainly, if damages are an adequate remedy, then, as a general rule, an order for
specific performance will not be granted. The judiciary may also use their
discretion. Further, the type of contract is considered.

DAMAGES AS AN ADEQUATE REMEDY

Specific performance will not be granted where damages are an adequate remedy.
This was certainly the position taken in the case Mobile Oil (Zambia) Ltd v
Loto Petroleum Distributers Ltd23. In this case, the plaintiff’s company rented
a house from the defendant. Sometime later, the parties agreed that the plaintiff’s
company should buy the said house from the defendant. However, when the
managing director of the plaintiff’s company signed the contract of sale in his
personal capacity, the defendant increased the purchase price. The plaintiff’s
company sued the defendant.

21
Ryan v Mutual West Minister Chambers Association (1893) 1 Ch 116
22
Posner v Scott-Lewis (1987) Ch 25
23
Mobil Oil (Zambia) Ltd v Loto Petroleum Distributers Ltd (1977) ZR 336
The court held that, the court will not grant a decree of specific performance of a
contract if the party seeking the decree can obtain a sufficient remedy by
judgement for damages and such a decree will not be made where it would be
impracticable to secure compliance with it. The equitable principle of refusing
specific performance extends to contracts involving personal service even though
they are not contracts of service. The above case confirms that where damages
will be an adequate remedy. Specific performance will not be granted.

TYPES OF CONTRACTS

The courts will also look at the type of contract. The general rule is that the courts
will not order specific performance on contracts involving personal service and
building contracts. This is because damages will be adequate to enable the injured
party to acquire the services of another builder. For example, in employment
contracts, which are those personal service. The courts rarely award specific
performance in form of reinstatement. In the case of Bank of Zambia v Joseph
Kasonde24, the supreme court, per Chaila JS, held that it is trite law that the
remedy of reinstatement is granted sparingly with great care and with extreme
caution.

Specific performance is usually granted where the contract itself is certain, fair
and just and the conduct of the party seeking performance is irreproachable.

COURTS DISCRETION

This order emphasizes the performance of contractual obligations. Although the

plaintiff can elect to claim specific performance from the defendant, the court has
a discretion to grant or decline the order of specific performance. The discretion
must be exercised judicially and does not confine on rigid rules. Courts decide
each case according to its own facts and circumstances. Plaintiff has a right of

24
Bank of Zambia v Joseph Kasonde (SC) (1996) ZMSC 25
election whether to claim specific performance from the defendant or damages
for breach of contract. The defendant does not enjoy any choice in this matter.25

CONCLUSION

Having said all this, it can be concluded specific performance is an equitable

remedy from as early as the 70s. It is an order from the court constraining the
party in default to perform their contractual obligations. The basic principle for
specific performance is that, it is usually granted if in the circumstances it is just
and equitable to do so. Further, specific performance is more likely to be awarded
where damages cannot adequately compensate a party for breach of the contract.
The courts have certain exceptions that are considered before granting the remedy
of specific performance which are, damages being adequate, courts discretions
and the types of contract.

INTRODUCTION.

In Islington LBC v UCKAC26 Dyson LJ stated that a voidable contract

continues to exist 'until and unless it is set aside by an order of rescission made
by the court at the instance of a party seeking to terminate it or bring it to an end'

Rescission is one of the contract remedies available at law. According to the

oxford dictionary of laws it is, “the setting aside of a voidable contract, which is
thereby treated as if it had never existed. It is an irrevocable step and can be
effected by any clear indication of intention to be no longer bound by the contract;
this intention must be either communicated to the other party or publicly
evidenced in some way. it can also be effected by a formal action (a remedy
developed by the courts of equity) ...” 27 Rescission is not just strictly a judicial
remedy but is the act of the entitled party entitled to rescind or a right which a
party to a transaction has to set aside the transaction. However, it is best

25
https://doi.org/10.22495/cbv11i2art5
26
[2006]
27
Oxford Dictionary of Laws 5th edition, 2003 page 429.
considered as a remedy because the courts assistance is frequently required to
determine whether a person is entitled to rescind.28

WHAT CAN LEAD TO RESCISSION

A misrepresentation is a false statement of fact made by one party to another,

which, whilst not a term of the contract, induces the other party to enter into the
contract. An actionable misrepresentation must be a false statement of fact, not of
opinion or future intention or law. 29

The case of Spice Girls Ltd V Aprilia Word Services30 spice girls ltd a company
formed to promote spice girls pop group was contracted in May of 1998. The
contract was to promote motorcycles and scooters manufactured by AWS in a TV
commercial to be shown until March 1999.

At the signing of the contract spice girls had five members but a month earlier
Geri Halliwell announced to other group members that she was leaving the group
at the end of September 1998. They decide to keep this information secret and
AWS was not informed when the contract was signed. AWS refused to pay and
SGL sued.

It was held that by participating in the shoot of the TV commercial SGL

represented by conduct that it did know or had no reasonable grounds believe that
any members of the group intended to leave. This amounted to a
misrepresentation.

Silence does not normally amount to misrepresentation. However, the representor

must not misleadingly tell only part of the truth. Thus, a statement that does not
present the whole truth may be a misrepresentation. Where a statement was true

28
Megarry and Baker, Snell’s principles of contract 27th edition., 669.
29
Advocates for International Development, Basic Principles of English Contract Law., page 11.
30
[2000]
when it was made but due to a change of circumstances becomes false, there is a
duty to disclose the change

There are four types of misrepresentation:

o fraudulent misrepresentation;
o negligent misrepresentation at common law;
o negligent misrepresentation under statute; and
o innocent misrepresentation.

Which category a misrepresentation falls into depends on the state of mind of the
person making the statement. The reason why the category matters is that the
remedies for each type differ.31

Rescinding a contract may be an option if there is proof that there was a material
error in the contract. Evidence of fraud, mutual errors, lack of legal or mental
capacity, duress and undue influence, or one party not fulfilling its obligation
can also lead contracts to be voided.32

It will only be granted where restitutio in integrum is possible

Restitutio in integrum must apply in order for a claim for rescission of a contract
to be successful. This means that it must actually be possible to return the parties
to the positions That they were in before the contract was formed. One obvious
example of this is that the Subject-matter of the contract must not have been
substantially altered in any way.

31
Elliott and Quinn, Contract Law, 7th ed., page 192-193.
32
https://www.investopedia.com/terms/r/rescission.asp#:~:text=Rescission%20is%20when%20a%20contract,b
efore%20the%20contract%20was%20signed
IMPORTANCE OF RESCISSION.33

o Rescission is a self-help remedy both at common law and equity, exercised

by the right-holder giving notice of her/his election to rescind the other
party:
o Rescission allows the reversal or unwinding of a transaction ab into so as
to restore the parties to their original positions.
o Rescission enables or effects restitution benefits transferred pursuant to the
impugned transaction
o The practical effect of rescission is to undo, and in this sense reverse, the
conferral of benefits (valuable contractual rights) on the other party.
o Rescission often effects personal restitution – e.g. money has been paid
pursuant to a contract
o Rescission can also have proprietary effect as where rescission is sought to
obtain the return of title to an asset that has been transferred pursuant to a
contract or gift.

Loss of right to rescind.

a. By acquiescence: Where a right of rescission exists, it will be lost if the

person entitled to rescind has elected to waive rescission and affirms the
contract after the facts conferring the right have come to his notice e.g.
where with full knowledge of a fraud upon him, he nevertheless takes a
benefit under the contract.
b. By impossibility of restitutio in integrum: In general, a contract that is liable
to be rescinded remains valid until it is set aside. A contract may cease to
be capable of being rescinded as where the parties cannot be restored to
their original position.

33
https://jamesonlaw.com.au/commercial-law/contract-rescission/
 c. After completion: An innocent misrepresentation may not give a right to
rescind after completion. However, the rule is not absolute as it is now not
a bar to rescission that the contract has been performed.
d. By intervention of third parties: Rescission of a contract is impossible
where third parties such as a purchaser has intervened and rights acquired
thereunder for value

In the case of Leaf V International Galleries34 Affirmation to a contract after

the discovery of the truth and another innocent third party acts in good faith.

The case of Long Vs Lloyd35 is case where the plaintiff lost their right to rescind
a contract by taking a second journey with a lorry they earlier experience fault
with.

Conclusion.

Rescission is a way of discharging a contract. It may be effected by a unilateral

agreement between the contracting or transacting parties to do away with the
contract or by the party with the right to rescind notifying the other to set aside
the contract. It can ideally be applied outside the courts but mostly the courts
determination of who is entitled to rescind is preferred. Its availability as a remedy
provides for a favourable remedy in situations where a contract can be done away
with leaving the contracting parties with benefits. However, to every general rule
there is an exception in this case a party with a right to rescind may lose their
right at a particular stage for justifiable reasons at law.

CERTAINTY OF DAMAGES

A party can only recover an amount of damages in law which can be proved with
reasonable certainty as defined at https://www.lawteacher.net36 . Especially

34
[1950] 2KB 86.
35
[1958] 1 WLR 753
36
https://www.lawteacher.net
troublesome in this case is lost profits and loss of goodwill, for example Martha
is convinced that next summer the Zambian public will be receptive to polka-
dotted belts with his name monogrammed in front. He arranges for a garment
factory to produce 300,000 such belts but the factory, which takes a large deposit
from him in advance, misplaces the order and does not produce the in time for
the selling season. When Martha discovers the failure, he cannot raise more
money to go elsewhere and her project fails. She cannot recover damages for the
lost profits because the number is entirely speculative, no one can prove how
much he would have made, if anything, he can instead seek restitution of the
monies advanced. If he had rented a ware stole to stole the belts, she would also
be able to recover her reliance interest. When proof of profit is difficult or
impossible, the court may grant a non-monetary award, such as Specific
performance.

Specific performance, as defined in unlocking contract37, is the order given by

the court to the breaching party to perform or rather do their obligation in the
contract. This means that if the court can not calculate the exact damage or loss
incurred by the victim the they give specific performance as a remedy to the
breaching party that they perform their obligation in the contract.

In the case of Phinate Chona v ZESCO Limited [2019]38, an employee claimed

that her retirement benefits were underpaid because her last received service
allowance was a different amount to what was used to calculate her final package.
The employment received a higher service allowance and did not pay tax on it,
as her employer paid the tax on his amount during employment but when she
retired, they calculated the benefit on the net amount. The court of appeal
endorsed the view that in construing a contract, a court may resolve any ambiguity

37
4th Edition Chris Tuner unit 6 page 426
38
Phinate Chona v ZESCO Limited [2019] CAZ Appeal No. 66/2019
by looking at it’s commercial purpose and the factual background against which
it was made.

The court of appeal found that the clause on retirement benefit provided a
different formula for calculating of retirement benefits and was not dependent on
the service allowance she received whilst in employment. In this case, the court
of appeal stated that a court is permitted to look at the factual back ground to
determine the calculation of her final retirement benefit. As such, the court held
that the employee was only entitled to what her contract provided for and not the
additional benefits she was claiming.

And so, in this case it was established that the court may use the factual
background to determine the certainty of damages in particular situation when it
becomes difficulty to come up with the certainty of damages.

Certainty of damages in the 1Black’s Law Dictionary it emphasizesthat damages

sought must be sufficiently clear and specific in terms of both their occurrence
and their amount. This requirement helps maintain fairness and predictability in
contractual relationships, ensuring that parties are accountable for reasonably
foreseeable losses resulting from a breach of contract. The doctrine or principle
of certainty of damages is well articulated in the decided case of 2Robinson v
Harman (1848), the court held that damages must be proven with reasonable
certainty and cannot be based on mere speculation or guesswork. The case
involved a breach of contract where the plaintiff sought damages for the
defendant's failure to complete a land purchase. The court emphasized that
damages should reflect the actual loss suffered by the plaintiff as a direct
consequence of the breach. The key points from this case include the following
Certainty of Damages: The court stressed that damages claimed must be definite
and ascertainable. Speculative or hypothetical damages are not recoverable.
Actual Loss Suffered: Damages should reflect the actual loss suffered by the
injured party as a result of the breach of contract. Reasonable Quantification:
While exact precision is not required, damages must be capable of being
estimated with reasonable certainty based on the available evidence. No
Speculation: Damages cannot be awarded based on conjecture or hypothetical
scenarios. There must be a factual basis for assessing the loss. 1 Black’s Law
Dictionary 2 Robinson v Harman (1848) Compiled by Bernardo Generally the
doctrine of certainty of damages mean that the assumption of intent even if the
breaching party did not intend the result, but knew with substantial certainty the
effect would occur as a result of his action. This doctrine is used by courts as a
test to determine whether or not a defendant committed a breach or not. The
concept of certainty of damages under contract law is essential in determining the
remedy available to a party who has suffered a breach of contract. The following
are some of the detailed notes concerning the certainty of damages. Nature of
Damages: Damages in contract law are intended to compensate the non-breaching
party for the loss suffered as a result of the breach. The aim is to put the innocent
party in the position they would have been in had the contract been performed.
Types of Damages: General Damages: These are damages that naturally flow
from the breach and are quantifiable, such as loss of profits or expenses incurred
due to the breach. Special Damages: These are specific losses that arise from the
particular circumstances of the case, which were reasonably foreseeable by the
parties at the time of contracting. Requirement of Certainty: To claim damages
for breach of contract, the loss suffered must be certain both in its occurrence and
its extent. This requirement ensures fairness and predictability in contract
enforcement. Certainty of Occurrence: The loss must have occurred or be
reasonably certain to occur as a result of the breach. Speculative or contingent
losses are generally not recoverable Certainty of Extent: The amount of damages
must be quantifiable with reasonable certainty. While exact precision is not
required, there must be a basis for assessing the loss. The following are some of
the cases on certainty of damages Compiled by Bernardo 3Hadley v Baxendale
(1854): The test is whether the loss was in the contemplation of both parties at
the time of contracting as a probable result of the breach. 4Victoria Laundry
(Windsor) Ltd v Newman Industries Ltd (1949): Damages must be calculated on
a common-sense basis, with reasonable certainty. Principles of Calculation of
certainty of damages include the following below Mitigation: The innocent party
has a duty to mitigate their losses. They should take reasonable steps to minimize
the impact of the breach. Causation: The loss claimed must have been caused by
the breach and not by other factors. Quantification: Methods used to quantify
damages may include the market value assessments, Cost of cure, Loss of profits,
Reasonable costs incurred due to the breach. Foreseeability:Damages are only
recoverable if they were reasonably foreseeable by the breaching party at the time
of contracting. This principle limits liability to losses that the party could have
anticipated. Consequences of Uncertainty: If damages cannot be proven with
reasonable certainty, the court may deny or limit the award of damages. Other
Remedies: In cases of uncertainty regarding damages, other remedies such as
specific performance or injunctions may be considered to enforce contractual
obligations In summary, the certainty of damages is a fundamental principle in
contract law, ensuring that damages are fair, predictable, and based on actual
losses suffered by the innocent party due to the breach of contract. The
requirement of certainty applies both to the occurrence and extent of the loss, and
courts employ various methods to assess and quantify damages based on the
specific circumstances of each case. 3 Hadley v Baxendale (1854) 4 Victoria
Laundry (Windsor) Ltd v Newman Industries Ltd (1949)