Freedom of contract in Zambia
Date
2013-11-15
Authors
Siamutwa, Charles
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Abstract
Any attempt to assess the relevance or otherwise of the concept of "Freedom of Contract" would be failure without stating the fact that the Law relating to Commercial Contracts lies at the very core of development in any society? The law of Contract is that branch of the laws which regulates Commercial transactions called Contracts that are entered into between individuals. It is suggested that a Country would be said to be or not be rich or developed to the extent that is citizens are poor or rich. If
the citizens are poor a Country is said to be poor. Be it noted that the development of the Law of Contract is closely tied with that of Commerce. With the economic and social development of modern societies the need for the Law of Contracts becomes far more pressing.
The author is like the great Sociologist Ihering of the view that thr law is an instrument for serving the raeds for Society.The purpose of the law must be to further and protect the inter¬ests of society.
The main preoccupation of Zambia, like any third world Country, is that of working out ways of realising economic development. It ought inevitably to follow that the law should be there to foster and not to inhibit development. This it seems could be best done by widening the scope of freedom relative to Commercial initiatives of individuals. Individuals should not be unduly hampered in their efforts to execute commercial transactions. There should be "Freedom of contract"
It is pertinent at this point to say a word about 'Freedom of contract1. It must be recollected that during the 18th and 19th
Centuries the Theories of Natural Law and the philosophies such as that of Laissez-faire reigned supreme. The Judges of the day were themselves influenced by current thought.
However, with time and especially by the end of the 19th Century the importance attached to the said concept was constantly dwindling understandably because mainly of three factors Vi z: the emergence and widespread use of the standard form contracts, curtailment of free choice and intention as grounds of legal.The question that will exercise our minds is whether there is freedom of contract in Zambia and whether the said concept still derives any importance. We shall respond to this question by firstly in the first Chapter, underscoring the fact that the bulk of the law in force in Zambia is the same law that is in force in England. This appears to be important because economic develop-
takes place in stages.Zambia might not be at the same stage of economic development as England. Therefore, there would be no justification for the existence of the law for the regulation of Commercial transac¬tions at the same level as that of England. A consideration of this will help us in the final analysis to say whether or not there is need to widen or restrict the scope of freedom of Con¬tract.In the second chapter we shall devote ourselves to an understand¬ing of the Classical concept of freedom of contracting. In addition we shall examine the reasons for the demise of the concept of freedom of Contract and to say whether or not in Zambia the concept is otiose.In the third chapter we shall examine some of the legislation that tends to work against freedom of contract and state whether there is any justification in retaining such laws. Lastly in the fourth Chapter it is suggested to make recommendations in relation to the Concept of Freedom of contract.
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Keywords
Liberty of contract- Zambia , Domestic relations- Zambia , Contracts- Zambia , Contracts- Economic aspects