Q&A – 28 March 2016
Economic sabotage for contract breach
I am a supplier of some key drugs and machines to some government hospitals and for the past one year have not been paid. The amount that is owed to me is now running in the millions of dollars and I am getting empty promises. I gave the relevant authority an ultimatum only to be asked to go see some senior person who first told me that I would be paid, and after I responded that I do not believe this and that I would cut supplies and sue, he threatened me that if I did so, I would be charged under the Economic and Organised Crime Control Act. In short he said that under the laws of Tanzania, particularly this act, since these products are vital for hospitals I have no choice but to continue supplying. I was also told that this offence is not bailable? What do I do?
This is the first time we are hearing of such an approach to a contractual obligation to pay. If what the official was telling you is true, then any supplier of vital equipment for the economy, be it power, water, security can never sue and can never demand. Nobody would then be willing to supply to the government of Tanzania and it would defy basic principles of contract law.
To answer your question, assuming of course you have given the right facts, there is nothing that stops you from cutting supplies, demanding payment, suing and/or proceeding as per the contract of supply. Economic sabotage is defined in the act and includes acts done or committed without lawful excuses and for a purpose prejudicial to the economic safety or interests of Tanzania or is likely to damage, hinder or interfere with a necessary service or its operation.
From the above definition, you cannot be charged under this act as you are lawfully demanding your money under a contract you entered into to supply. If you were unlawfully doing so and for a purpose prejudicial to the economic safety or interests of Tanzania, then this act might have applied.
As for bail, please be advised that this is a bailable offence. However bail shall not be granted in any of the following circumstances:(a)it appears to it that the accused person has previously been sentenced to imprisonment for a term exceeding three years; (b) it appears to it that the accused person has previously been granted bail by a court and failed to comply with the conditions of the bail or absconded; (c) the accused person is charged with an economic offence alleged to have been committed while he was released on bail by a court of law; (d) it appears to the court that it is necessary that the accused person be kept in custody for his own protection or safety; (e) the offence for which the person is charged involves property whose value exceeds ten million shillings, unless that person pays cash deposit equivalent to half the value of the property, and the rest is secured by execution of a bond; (f)if he is charged with an offence under the Dangerous Drugs Act.
Awake during operation
I was operated in a Dar hospital only to find myself awake during the entire surgery. I could feel some of the pain although my eyes were shut. My brain was fully functional yet I could not communicate to the surgeon as I could not move. I survived the ordeal but am suffering from post surgery trauma. Is this a case of medical negligence?
Anesthesia awareness occurs when patients have anesthesia that is inadequate to keep them unconscious during an operation. According to an online source, the incidence of this anesthesia complication is variable and seems to affect 0.2% to 0.4% of patients according to the surgical setting carried out. This variation reflects the surgical setting as well as the physiological state of the patient.
Unfortunately we do not have all the facts surrounding this incident but there seems to be a good case of medical negligence here. Luckily you survived but a number of patients who go through this do not.
To prove the negligence you will have to adduce enough evidence to substantiate your claim.
Goods not available for sale after advert
I read an advert in the paper on certain phones that were on sale but the company could not sell the phones stating that they were sold out. After reading the advert and when I accepted to purchase the phones, did I not enter into a contract with the sellers? Should they not be compelled to sell to me?
Generally, advertisements are not offers but invitations to treat, so the person advertising is not compelled to sell. In a famous case Partridge v Crittenden, a defendant who was charged with “offering for sale protected birds”- cocks and hens that he had advertised for sale in a newspaper- was not offering to sell them. The Justice said it did not make business sense for advertisements to be offers, as the person making the advertisement may find himself in a situation where he would be contractually obliged to sell more goods than he actually owned.
However in certain circumstances called unilateral contracts, an advertisement can be an offer; as in a famous 1893 case- Carlill v Carbolic Smoke Ball Company, where it was held that the defendants, who advertised that they would pay £100 to anyone who sniffed a smoke ball in the prescribed manner and yet caught influenza, were contractually obliged to pay £100 to whomever accepted it by performing the required acts.
You did walk into the store and tried to enter into a contract but the phones were sold out and unless the facts are different no contract is in place for you to sue for breach.