Imagine you agree to buy a property for US$250,000. You pay US$110,000, but fail to pay the balance on time.
Instead of ending the deal completely, you and the seller sit down and agree on new payment terms to give you another opportunity to complete the purchase. Later, another dispute arises.
Here is the important question:
When you change some terms of a contract, does the original agreement automatically disappear?
The Supreme Court of Zambia considered this question in Nkonde v Konidaris [2017] ZMSC 266.
The answer was:
Not necessarily.
The Court found that the later agreements changed certain terms of the original contract but did not completely replace it. That distinction mattered because the original agreement contained important provisions dealing with default, occupation of the property and money that had already been paid.
There is a simple lesson here for anyone doing business:
Changing part of an agreement does not necessarily cancel the rest of it.
Suppose you agree to sell a car for ZMW300,000, payable within 30 days. The buyer later asks for more time. You both agree that payment can instead be made within 60 days. You have clearly changed the payment deadline.
But does that mean everything else in the original contract disappears?
No.
The remaining terms may continue to apply. This is why changes to contracts should always be clearly recorded. When changing an agreement, ask:
- What exactly are we changing?
- Which original terms still apply?
- What happens to any previous breach?
- What happens if somebody fails to perform again?
- Are we changing the existing agreement or replacing it completely?
These questions may sound simple. But failing to answer them clearly can lead to years of litigation. There was also an important lesson for lawyers in Nkonde v Konidaris. The Supreme Court emphasised that when you appeal a case, you must generally argue the issues contained in your grounds of appeal. You cannot prepare one appeal on paper and arrive at Court wanting to argue a different one. This case also has a special place in the history of Dzekedzeke and Company.
The reported Supreme Court judgment records S. M. Dzekedzeke of Dzekedzeke & Company, together with M. Zulu of Makebi Zulu Advocates, as counsel for the successful Respondent, Spiridon Konidaris. The appeals were dismissed.
Our practical lesson from the case is simple:
When changing a contract, put the changes in writing and make it clear which parts of the original agreement still apply.
A small change to a contract today can become a very big dispute tomorrow.
For legal advice on contracts, property transactions and commercial disputes, contact Dzekedzeke and Company.
Based on Nkonde v Konidaris (Appeal No. 59 of 2011) [2017] ZMSC 266 (26 April 2017).
