When a supplier does not deliver, a customer does not pay or a partner walks away from a deal, the question is usually whether there has been a breach of contract and what can be done about it. Zambian contract law is largely built on the common law and the doctrines of equity, which apply in Zambia through the English Law (Extent of Application) Act, together with Zambian statutes and court decisions. This guide explains the basics: what a breach is, the remedies a court can give and what to gather before you start a claim.
What counts as a breach
A breach of contract happens when a party fails to do what the contract requires, does it late or does it badly, without a lawful excuse. It can also happen when a party makes clear in advance that it will not perform. Whether a particular failure is a breach depends on what the contract actually says, so the first step is always to read the terms carefully, including any clauses on delivery, payment, notice, termination, limits on liability and dispute resolution.
Serious and minor breaches
Not every breach allows the other party to end the contract. A minor breach usually entitles the innocent party only to compensation. A serious breach, one that goes to the root of the contract or breaches a term the contract treats as essential, may also allow the innocent party to treat the contract as ended. Ending a contract wrongly can itself be a breach, so take advice before you terminate.
Remedies a court can give
- Damages. The usual remedy is money compensation intended to put the innocent party in the position it would have been in if the contract had been performed, for losses caused by the breach that are not too remote.
- The price or sum due. Where the claim is simply for an unpaid sum, such as an invoice, the claim is for that debt.
- Specific performance or an injunction. In some cases a court may order a party to perform the contract or to stop doing something. These equitable remedies are discretionary and usually available only where damages would not be adequate.
The innocent party is generally expected to take reasonable steps to limit its losses.
Is a verbal agreement enforceable?
Many contracts can be made orally or by conduct, but proving the terms is much harder without writing. Some contracts, such as those for the sale of land, must be evidenced in writing to be enforceable. Emails, messages, invoices, delivery notes and payment records can all help establish what was agreed.
If the contract has an arbitration clause
Law cited
English Law (Extent of Application) Act: application of the common law, equity and certain English statutes (section 2). Arbitration Act No. 19 of 2000: stay of court proceedings where there is an arbitration agreement (section 10).
Many commercial contracts say disputes must go to arbitration. Under section 10 of the Arbitration Act, No. 19 of 2000, a court before which proceedings are brought on a matter covered by an arbitration agreement must, if a party asks, stay the proceedings and refer the parties to arbitration, unless the agreement is null and void, inoperative or incapable of being performed. Check the dispute clause before choosing where to start.
What to gather before you claim
- the contract and any amendments, quotes, orders and terms and conditions
- correspondence showing what was agreed and what went wrong
- evidence of your own performance, such as delivery notes or payment records
- a record of your losses and how you calculated them
- any notices you have sent or received
A clear letter of demand often resolves the dispute without proceedings. Our guide to how a civil case works in Zambia explains what happens if it does not, and smaller fixed-sum claims may belong in the small claims court. Time limits apply to contract claims, so do not wait too long.
Our civil litigation team assesses claims and represents clients in contract disputes.
Frequently asked questions
What counts as a breach of contract in Zambia?
A failure to perform what the contract requires, on time and properly, without a lawful excuse, or a clear refusal to perform in advance. It depends on the contract’s terms.
Can I claim damages and also end the contract?
Where the breach is serious enough, the innocent party may be able to end the contract and claim damages. For a minor breach, compensation is usually the only remedy. Take advice before terminating.
What if the contract says disputes go to arbitration?
If a party asks, the court must stay court proceedings and refer the parties to arbitration, unless the arbitration agreement is null and void, inoperative or incapable of being performed.
Is a verbal agreement enforceable?
Often yes, but the terms are harder to prove, and some contracts, such as those for the sale of land, must be evidenced in writing.
