Imagine a scenario in which Joshua and Vimbai are good friends and they enter into a contract of sale.  Joshua agrees to sell his motor vehicle to Vimbai for a fee of US$4 000.00. Since Vimbai has always been a lady that does things by the book, she requests Joshua to put it in writing. This they do and then sign the agreement of sale with Vimbai having immediate occupation of the vehicle.

After Joshua’s favourite soccer team wins the UEFA champions League, in a moment of bliss he calls Vimbai to inform her she can have the car for US$3 000.00. Vimbai is overjoyed and gladly accepts. The following week when Vimbai goes to give Joshua the money for the motor vehicle he expresses shock at the US$3 000.00 being handed to him. He boldly insists on the written and agreed US$4 000.00. Vimbai on the other hand is unmoved and also insists on US$3 000.00.

Here is how contracting parties can avoid such situations.

A clause known as a Non-variation clause can be inserted in a written agreement. This is not only applicable to a contract of sale but to all contracts. This clause simply has the effect that:

“No variation of an agreement shall be of any force or effect unless reduced to writing & signed by the parties”

The purpose of the non-variation clause is to prevent disputes & problems of proof that might arise if oral variation were permitted. Any attempt to agree informally on a topic covered by a non-variation clause (e.g. extension of time for payment or of the purchase price) will be ineffective. The reason for honouring such a clause is to cement the principle that agreements must be kept and upheld as well as the freedom of contracting parties who would have included a clause of non-variation in their agreement.

So next time you are about to enter into a contract consider the effect of this provision.

By Kumbirai Nyika