For a long time, it has been a well-established legal principle in Tanzania that contracts can be concluded either explicitly, through written or verbal agreements, or by implication. Implied contracts emerge when the actions of the parties indicate a mutual understanding, even in the absence of a formal written agreement. Such contracts are duly recognised under the Tanzanian Law of Contract Act, Cap. 345 R.E. 2019.

That contracts can be established and proven by the conduct of the parties has been underscored by the Court of Appeal of Tanzania in its recent judgment delivered on 27 February 2025 in Civil Appeal No. 54 of 2022, Tanzania International Container Terminal Services Limited v. Petrolube (T) Limited [2025] TZCA 110. Briefly, the facts in the case are that the Respondent in August 2015 procured a consignment of 350,636 litres of Base Oil KixxLUBO 150N (lubricating materials) weighing 299.05 metric tons from GS Caltex Corporation, a South Korean company. The consignment was packaged in a secure flexi tank placed in a metal container which was loaded onto a carrier ship styled as Hanjin Jebel Ali, loaded at Busan port in South Korea to be discharged at Dar es Salaam port. The consignment was safely conveyed to its port of destination but, during or around the time of offloading from the ship, the container housing the consignment was badly damaged to the extent that the imported lubricants leaked to complete emptiness of the flexi tank. The Respondent, having engaged the Appellant to discharge her consignment, argued that the damage of the consignment was caused by the latter and destruction took place at its premises. The parties engaged in various communications, but disagreements persisted.

The Respondent successfully sued the Appellant in the Commercial Division of the High Court of Tanzania at Dar es Salaam for breach of contract. The trial court ruled in his favour, thereby granting special and general damages for breach of contract.

The Appellant was not amused with the trial court's findings and appealed to the Court of Appeal of Tanzania armed with several grounds of appeal – one of them being that the parties had no contractual arrangement for the consignment. During the course of the hearing, the court went through the record of appeal to ascertain whether the parties had contractual arrangements by looking at the conduct of the parties. It was the finding of the court that, although the container was loaded with the consignment of the Respondent, it was insured by the Appellant and, when it got damaged on 14 September 2015, the Appellant notified the insurer of the destruction of the consignment. The latter instructed the insurance surveyors and loss adjusters to inspect the destroyed consignment and assess the loss occasioned. In its reasoning, the court considered that the party who appeared to be more concerned about insuring the consignment and notifying the insurer upon destruction was the Appellant, not the Respondent. Also, the Appellant requested an extension of 30 days for her to contact the insurance company for any update on the destroyed consignment before the lawyers could take legal action. The court raised the question that, if the Appellant had no legal relationship with the Respondent, nor any duty to fulfil in favour of the Respondent with regards to the consignment, why would she be concerned with its loss to that extent?

The court further reasoned that, after confirmation from the Appellant's counsel that for offloading, management and safe delivery of the consignment to the Respondent, the latter paid fees to the Appellant through the government and concluded that due to this conduct, without doubt, there existed an implied contract between the parties in which the Respondent would offload the consignment, store and deliver the same to the Appellant. Such an agreement, though unwritten, is as good as an agreement and the same is enforceable under the laws of Tanzania. The court ruled that, under the laws of Tanzania, for a contract to be valid and enforceable it does not have to be written and or physically executed by the parties, but may be implied from the conduct of the parties. It was the finding of the court that it would be heartless, quite unjust and illegal to hold that, because there was no written agreement between the parties, the victim(s) had no legal redress under the law. If the court was to find as such, it would not be effective, nor even seen to be responsible administrators of justice. Finally, the court found that, on all occasions, justice must rule supreme and must be given way even in the face of the law itself.

The general public is reminded that it is not a defence that parties did not execute a written contract or verbal arrangements to justify the existence of a contractual relationship. The contractual jurisprudence in Tanzania extends to cover even series of actions, conducts and circumstances surrounding the parties in implementing any undertaking of a contractual nature. Therefore, parties should not default in performing their contractual responsibilities on the viewpoint that there is no express written contract, as this will not bar the courts in Tanzania from upholding the existence of a contract through the conduct of the parties and remedying the injured party.