Q&A – 2 February 2015

Atkins diet not working

I have been very fat since I was born and doctors have always told me to lose weight. Recently I went to this special session where I was introduced to a world renowned program called Atkins diet. I was told to only have proteins and fats and no carbohydrates which I have religiously followed but have not lost even a few kilos. I feel frustrated and let down by this failure and wish to sue Dr Atkins, the founder of this diet. Can you take my case and will I succeed?
HP, Dar

We are sorry to hear about your frustrations. Losing weight has been a discussion point ever since humans came on this planet. Our research reveals that the diet is highly controversial and has many critics. However it has also assisted a number of people around the world. Further research reveals that the diet is not as popular as it used to be and the company that Dr Atkins was using to promote this diet filed for bankruptcy some years back. You might have tried the diet a little too late.

The bad news. Unfortunately Dr Atkins died about 12 years ago and hence suing him, at best and if at all possible, will give you a decree that you will not be able to execute. His company also filed for bankruptcy after his death and it looks unlikely you will be able to sue the company either.

Lastly, it was not Dr Atkins who recommended the diet to you but your doctor or dietician. Perhaps you can consider suing your local doctor or dietician but this will not be an easy case to win. You have admitted that you have been fat since birth which likely means that you have some fat genes or have bad eating habits and lack of exercise, or both. Even if the best dietician in the world recommends a diet plan, if you do not control portions, or follow the diet and exercise, losing weight will be a nightmare.

Before we end, we must stress that we are not dieticians but our research reveals that most people who go on aggressive diets do indeed lose weight, but they gain it all back (and more) after a few months. The key, we learnt, is for you to do a gradual diet reduction plan and have realistic targets as opposed to these crush programs that you seem to like. Again, and so that you don’t hold us responsible in having misguided you, we strongly recommend you verify all the facts and advice above with your doctor, dietician and lawyer. We don’t want to be the target of your next law suit.

This advice is only meant to guide you. We must end by saying something you don’t want to hear- you have a weak case.

Wedding car not delivered

I specialize in arranging weddings and promised one of my clients, the groom, that I would order a special car for his wedding. I placed the order of the car only to be told a few weeks later that the car had been phased out. All other alternatives that I recommend to my client are refused by the bride. The groom unfortunately sides with the bride and is now threatening to sue me since I have an explicit contract with him to supply the car. My lawyer says that we should pay him the amount of the car. I find it hard to think that the law is so strict even though I admit that I am in breach.
YU, Dar

First and foremost remove the notion of breach from your mind as you are not in breach. And unless you really want to pay the purchase price of the car to your client, perhaps for future business (although the groom will likely get married only once), you have a sold defence in law under the doctrine of frustration.

A book called Chitty on Contracts states that “a contract may be discharged on the ground of frustration when something occurs after the formation of the contract which renders it physically or commercially impossible to fulfil the contract or transforms the obligation to perform into a radically different obligation from that undertaken at the moment of the entry into the contract.”

English Courts, which are persuasive in Tanzania, have used a test of radical change in the obligation to decide whether the defence of frustration can be used or not.

That test was first formulated by the House of Lords in Davis Contractors Ltd v Fareham U.D.C.[4] As one of the Justices put it: “Frustration occurs whenever the law recognises that without default of either party a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do…. that special importance is necessarily attached to the occurrence of any unexpected event that, as it were, changes the face of things. But, even so, it is not hardship or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligation that the thing undertaken would, if performed, be a different thing from that contracted for.”

Since the car is out of production, and there is no other way for you to get the car, we opine that this contract has been frustrated. Since you cannot perform the contract, any advance sums that you have taken from your client should be refunded back with no further liability on your part.