4047476
Beschreibung
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Erstellt von JoFan Pang
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Malaysian
Contract Law
- Introduction
- Contracts Act 1950
- Illustrations
- Should be accepted as
being of relevance and
value (Mohamed Syedol
Ariffin)
- Should be accepted as
being of relevance and
value (Mohamed Syedol
Ariffin)
- Contracting out of
the Act
- Can. Unless provisions
expressly/impliedly
prevents so. (Ooi Boon Leong)
- Can. Unless provisions
expressly/impliedly
prevents so. (Ooi Boon Leong)
- Illustrations
- Case Law
- English Law
- Applies if not covered by
CA or case law. (s3 & s5 Civil
Law Act)
- Cautious about invoking
English Law. (Tan Mooi
Liang)
- Applies if not covered by
CA or case law. (s3 & s5 Civil
Law Act)
- Contracts Act 1950
- Proposal
- Definite promise by promisor to be bound as
soon as expressly or impliedly accepted. (s2(a)
CA)
- Intimation of willingness by the offeror
to enter into a legally binding contract
as soon as expressly or impliedly
accepted. (Preston Corp Sdn Bhd v
Edward Leong)
- Intimation of willingness by the offeror
to enter into a legally binding contract
as soon as expressly or impliedly
accepted. (Preston Corp Sdn Bhd v
Edward Leong)
- Can be made to individuals, class of
persons, firms, companies, world at
large
- Complete when comes to
knowledge of person to whom it's
made
- Auction. Bids = offer. Striking of
hammer = acceptance. (M&J Frozen
Food Sdn Bhd v Siland Sdn Bhd)
- Definite promise by promisor to be bound as
soon as expressly or impliedly accepted. (s2(a)
CA)
- Acceptance
- Promisee signifies assent to
proposal. Proposal becomes
promise. (s2(b) CA)
- Must be absolute
and unqualified
- Must be conveyed in usual or
reasonable manner, unless
prescribed in proposal. (s7(b) CA)
- If not conveyed as prescribed, promisor
may object within reasonable time
- If not objected, shall be
deemed as accepted
- If not conveyed as prescribed, promisor
may object within reasonable time
- Must be absolute
and unqualified
- 'Subject To Contract'
(Charles Grenier Sdn Bhd v
Lau Wing Hong (FC))
- Not binding. Court has to construe
correspondence between parties to see
intention
- Law leans in favour of
upholding bargains.
- Phrase 'subject to S&P Agreement'
does NOT automatically mean no
contract exist until contract signed.
Context of correspondence, object or
aim of transaction and intention of
parties must be read.
- Not binding. Court has to construe
correspondence between parties to see
intention
- Communication of Acceptance
- DEFINITION: Any act or omission of the party
accepting by which he intends to
communicate the acceptance and has the
effect of communicating it
- Can be made in writing, orally or by
conduct or by a combination of the
above.
- Felthouse v Bindley:
Silence does not
constitute
acceptance
- Offeror can
waive
communication
- Waiver implied in
unilateral contract. ie
Carlil v Carbolic
Smokeballs
- s8 CA:
performance of
contract conditions
is acceptance
- Felthouse v Bindley:
Silence does not
constitute
acceptance
- Acceptance in binding on proposer when
acceptor puts acceptance so as to be out of
the power of the acceptor; On the acceptor
when acceptance come to the knowledge
of the proposer. (s4(2) CA)
- GR: only takes effect upon
communication to the proposer.
(Entores Ltd v Miles Far East Corp)
- Postal Rule: s4(2) (a) and (b) of
CA - Ignatius v Bell
- GR: only takes effect upon
communication to the proposer.
(Entores Ltd v Miles Far East Corp)
- DEFINITION: Any act or omission of the party
accepting by which he intends to
communicate the acceptance and has the
effect of communicating it
- Promisee signifies assent to
proposal. Proposal becomes
promise. (s2(b) CA)
- Revocation and
Termination
- Revocation of
Acceptance
- Must be communicated at any time before the
communication of acceptance is complete
against acceptor, not afterwards.
- Must be communicated at any time before the
communication of acceptance is complete
against acceptor, not afterwards.
- Revocation of
Proposal
- Rejection
- Counter offer with terms
not in original offer ends
offer. (Hyde v Wrench)
- Asking for further
information not rejection.
(Stevenson v McLean)
- Counter offer with terms
not in original offer ends
offer. (Hyde v Wrench)
- Lapse of time
- s6(b) CA : Revoked by the lapse of
time prescribed in proposal. If not
prescribed, lapse of reasonable
time.
- s6(b) CA : Revoked by the lapse of
time prescribed in proposal. If not
prescribed, lapse of reasonable
time.
- Failure to fulfill a
condition precedent to
acceptance
- s6(c) CA: rejected by failure of acceptor
to fulfill condition precedent to
acceptance. (Aberfoyle Plantations Ltd v
Khaw Bian Cheng (PC) )
- s6(c) CA: rejected by failure of acceptor
to fulfill condition precedent to
acceptance. (Aberfoyle Plantations Ltd v
Khaw Bian Cheng (PC) )
- Death of a party
- May be revoked by death or mental
disorder of the proposer, if come to
knowledge of acceptor before acceptance.
- May be revoked by death or mental
disorder of the proposer, if come to
knowledge of acceptor before acceptance.
- Revocation
- s5 CA: proposal may be revoked at any time before
communication of acceptance is complete against
proposer, not afterwards.
- s5 CA: proposal may be revoked at any time before
communication of acceptance is complete against
proposer, not afterwards.
- Rejection
- Effective Communication
- s4(3): Revocation effective as against the person
who makes it, when it is given out of the power
of the person making it. AND as against the
person to whom it is made, when it comes to his
knowledge.
- s4(3): Revocation effective as against the person
who makes it, when it is given out of the power
of the person making it. AND as against the
person to whom it is made, when it comes to his
knowledge.
- Revocation of
Acceptance
- Consideration
- Definition
- s2(d): promisee has (or promised to) done or abstained
from doing something at the promisor's desire.
- s26 CA: agreement without
consideration is void
- s4(c) C(A)A 1976: notwithstanding
anything in CA, scholarship agreement not
void by absence of consideration
- s2(d): promisee has (or promised to) done or abstained
from doing something at the promisor's desire.
- Consideration need not
be adequate
- s26 CA: Agreement not void merely because consideration
inadequate. Inadequacy may be taken into account by court in
determining whether consent of promisor freely given.
- s27(a) SRA : if consideration so grossly inadequate and there is
evidence of fraud or undue advantage by plaintiff, then plaintiff
cannot enforce contract.
- Phang Swee Kim v Beh I Hock: as long as there were some
consideration, inadequacy immaterial. Unless inadequacy too
great it amounted to duress or fraud.
- s26 CA: Agreement not void merely because consideration
inadequate. Inadequacy may be taken into account by court in
determining whether consent of promisor freely given.
- Unilateral declaration
insufficient to make contract
- Guthrie Waugh Bhd v Malaippan Muthucumaru : Where no
consideration given by promisee, promisor merely owes moral
obligation to perform contract
- Guthrie Waugh Bhd v Malaippan Muthucumaru : Where no
consideration given by promisee, promisor merely owes moral
obligation to perform contract
- May move from third party
- s2(d) CA : consideration may be provided by the promisee
to any other person.
- s2(d) CA : consideration may be provided by the promisee
to any other person.
- Past Consideration
- s26(d) : a promise by the promisor to compensate the promisee for
something which the promisee has already voluntearily done for the
promisor ... would not be void for want of consideration.
- s26(d) : a promise by the promisor to compensate the promisee for
something which the promisee has already voluntearily done for the
promisor ... would not be void for want of consideration.
- Love and affection
- Payment of lessor sum
- Composition Agreement
- Definition
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