Hilary Muza 
THE business of drafting agreements is better left to lawyers who are experts in this. I state this with boldness because of some atrocious agreements of sale that I have seen being prepared by some not so confident self-actors.
Some people think that because they signed a contract before and familiarised with its contents, then they are always at liberty to prepare their contracts even with their little or absolutely no knowledge of law.
This is a dangerous game that people are advised to desist from. Lawyers know the law, as well as the content and language used in a contractual document.
They are aware of which words and phrases to make use of or to avoid ambiguity. They know the significance of a misplaced punctuation mark and how that simple error may lead to devastating consequences on a contract and the rights of parties. It may well be possible for a non-lawyer to experiment with other simple agreements, but this should never be the case with agreements involving sale of immovable properties and a host of other contracts deemed complex and important.
The Contractual Penalties Act [Chapter 8:04] (the Act) serves as a good illustration on why it is not advisable for non-lawyers to attempt to prepare their own agreements of sale. It cannot be gainsaid that many non-lawyers have absolutely no clue about the existence of this statute.
While some may be aware of its existence, they may not be familiar with its provisions. Those who may be familiar with its provisions, may still not be able to understand and/or interpret the provisions correctly.
This is because interpretation of statutes is a specialised area that lawyers would have gone through a rigorous training for. The long and short of it is that, people are just better advised to stay away from this business that is a preserve for lawyers.
The statute under reference is more relevant for the manner in which it addresses certain aspects of instalment sales of land. An “instalment sale of land” means a contract for the sale of land whereby payment is required to be made in three or more instalments or by way of a deposit and two or more instalments.
“Land” includes any improvements on land like dwelling houses, commercial premises and/or any other permanent land fixtures.
In terms of Section 7 of this Act, every instalment of sale of land shall be in writing. Failure to have a written agreement shall not render the transaction invalid, since the Act gives any affected party a right to prove through oral evidence the existence of the agreement.
The law dictates that such agreements be reduced to writing because by their very nature disputes arising from such agreements are difficult to resolve if parties were to rely on word of mouth. People tend to lie, fabricate facts and exaggerations to strengthen their sides if only oral evidence is to be relied on.
A written agreement makes life easier for lawyers and judicial officers because interpreting the parties’ true intentions in a document is not that difficult, save for a few occasions where problems may arise due to poor draftsmanship.
Section 8 deals with what are called penalty provisions. A penalty provision may include a requirement for forfeiture of instalments received or damages for breach. This provision is more important as it seeks to protect buyers against greedy sellers who may cleverly attempt to enter into double sales after they resile from the initial agreement by taking advantage of any slightest case of default.
Where a seller intends to invoke a cancellation clause in the agreement, the period of notice should either be the period fixed for the instalment or 30 days, whichever is the longer period. In other words, where the instalment is expected to be paid every three months, the notice to remedy the breach should be for three months and not 30 days.
Now in my experience in handling contractual disputes, I have encountered agreements of sale of instalment sales where the period of notice given may vary from seven days to 10 days and at times, to 14 days. Any cancellation that a seller may attempt to carry out relying on a period of notice less than that stipulated in the Act would be hard to enforce. To say it in a simpler way, such a cancellation would be null and void and of no force of effect.
People are usually in the habit of plucking agreement templates from the Internet or from previously used documents without double checking for legal compliance. This has made many sellers face difficulties because provisions of this very important Act may have been overlooked. A notice of cancellation must be served on the purchaser personally or to an agent chosen by the purchaser for the purpose of receiving such notices.
Alternatively, for service of notice to stand as valid, it must be served on an address through registered post which address must have been chosen by the purchaser.
This is what is commonly referred to in legal documents as, domicilium citandi. The Act has not been discussed exhaustively and in future time shall be taken to explore this crucial area of law further.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
