Q&A – 21 January 2019
Holiday cut short
We were to cross across the Rufiji to the other side for a party with a dhow. The dhow that we were to use got towed away by strong abnormal currents the previous night. We missed the party, and missed the tour. Do we have a case to sue the dhow owner?
JH, Mtwara
It is very unlikely that you can sue and recover anything. In law, your contract was frustrated. A frustrated contract is a contract that, after its formation, and without fault of either of the parties, is incapable of being performed due to an unforeseen event (or events), resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract.
The legal consequence of such a contract which is found to have been frustrated is that the contract is automatically terminated at the point of frustration. The contract was valid during its formation (not void ab intio) but only that future obligations are discharged.
Delay can lead to the discharge of a contract where the commercial purpose of the contract has been frustrated. Further, commercial parties will not be expected to wait until the end of a long delay to find out whether in fact they are bound by a contract or not. A party to a commercial contract is entitled to act on reasonable commercial probabilities and may treat a contract as discharged where an event has caused a delay, even before the delay actually frustrates the contract.
Having said the above, the doctrine of frustration is applied within narrow limits. For a party to succeed in claiming frustration, it must show that, in the relevant contract, the parties never agreed to be bound in the fundamentally different situation that had unexpectedly emerged. It is not because the Court thinks in its discretion that it is just and reasonable to qualify the terms of the contract. Rather, it is because on its true construction it does not apply in such a situation.
From what you have stated, we believe your contract was frustrated hence both you and the other party discharged from performing under its terms.
Custody battle with millionaire husband
I come from an extremely poor family and unfortunately married a millionaire against the wishes of my parents. Due to the difference in our family wealth, I have always been abused by my husband as have my parents. We are always undermined, and reminded how poor I was when I came into the family. Just because I went twice with my husband on a foreign trip, I have to hear about this from my in-laws all the time. When my father was seriously ill, I took some of my husband’s money to fund his hospital bill. I am now always under attack for having used funds without authority but have since paid back the funds. I want to end this marriage but my daughter must stay with me. Lawyers say that the father is wealthy and there is a high chance that I will lose custody. What does the law say? I am ready to fight this out with my husband no matter what.
PY, Dar
We are sorry to hear about this. Income disparity should never come in between a relationship and it is sad that this has happened. Before taking any steps, you and your husband might want to consider meeting a marriage counselor to have an open discussion.
Fortunately for you, the law doesn’t distinguish between rich and poor. Everyone is equal before the law, so your husbands stronger balance sheet will not be a determinant factor for child custody.
The Law of Marriage Act empowers the Court to make order for custody. The Court may, at any time, by order, place an infant in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the infant be entrusted to either parent, of any other relative of the infant or of any association the objects of which include child welfare.
According to this law, in deciding in whose custody an infant should be placed the paramount consideration shall be the welfare of the infant and, subject to this, the Court shall have regard to (a) the wishes of the parents of the infant; (b) the wishes of the infant, where he or she is of an age to express an independent opinion; and (c) the customs of the community to which the parties belong.
We must however state that under the law there is a rebuttable presumption that it is for the good of an infant below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of the infant by changes of custody.
Custody orders may be made subject to such conditions as the Court may think fit to impose, and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the infant. For example, an order for custody may contain conditions as to the place where the infant is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up. Such an order can also provide for the infant to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court may consider reasonable.
In your case, provided you will be able to maintain the child, considering that the child is below 7 years, there is a higher chance than not that you will be granted custody up until your daughter turns 7 years. Of course, you cannot totally deny access to your husband, who will also be entitled to visitation rights or partial weekend custody, depending on the exact facts of the case. We suggest you meet a lawyer who can guide you further.