Law of Contract Study Notes PDF

Here are the key points and law cases men oned in the document "LAW OF CONTRACT, AGENCY AND TORT": Key Points: 1. Introduc on to the Subject o Covers contract law, agency law, tort law, and sales of goods law. 2. Relevance to the Construc on Industry o Governs rela onships between par es. o Provides rights and liabili es of contrac ng par es. o Remedies for contract breaches. 3. Law of Contract o Sources of Law:  Writen laws (Contract Act 1950, Civil Law Act 1956, etc.).  Unwriten laws (Common law, case law, trade customs). o Judicial Precedents and Doctrine of Stare Decisis:  Higher courts bind lower courts.  Young v Bristol Aeroplane Co Ltd principle applies. o Forma on of Contracts:  Oﬀer, Acceptance, Considera on, Legal Capacity. o Oﬀer vs Invita on to Treat:  Display of goods, adver sements, auc ons, catalogues. o Communica on and Revoca on of Oﬀers:  Oﬀers must be communicated and can be revoked before acceptance.  Postal Rule applies in some cases. 4. Law of Agency o Forma on of agency. o Rights, du es, and liabili es of agents and principals. 5. Law of Torts o Civil wrongs not covered by contract law. o Covers negligence, nuisance, occupier’s liability, trespass. o Professional negligence in the construc on industry. 6. Sales of Goods o Laws governing delivery of goods, ownership transfer, and quality of goods. o Express and implied warran es. Important Case Laws: Contract Law Cases: 1. Carlill v Carbolic Smoke Ball Co 1 QB 256 o Established unilateral contract principle. o Adver sement promising a reward was considered a binding oﬀer. 2. Young v Bristol Aeroplane Co Ltd 1 KB 718 o Doctrine of stare decisis (judicial precedent). o Courts must follow previous decisions unless excep ons apply. 3. Hendry v De Cruz 15 MLJ Supp 25 o Applied stare decisis in Malaysia. 4. Gibson v Manchester City Council 1 All ER 972 o Oﬀer vs Invita on to Treat. o Use of "may be prepared to sell" indicated an invita on to treat, not a valid oﬀer. 5. Pharmaceu cal Society v Boots Cash Chemists Ltd 1 QB 401 o Self-service stores: Displaying goods is an invita on to treat. 6. Hyde v Wrench 3 BEAV 344 o A counteroﬀer cancels the original oﬀer. 7. Adams v Lindsell (1818) 1 B & Aid 681 o Postal Rule: Acceptance is valid when posted. 8. Felthouse v Bindley (1862) 142 ER 1037 o Silence does not amount to acceptance. 9. Macon Works & Trading Sdn Bhd v Phang Hon Chin & Anor 2 MLJ 177 o Oﬀer lapses if no acceptance within a reasonable me. 10. Holwell Securi es Ltd v Hughes 1 WLR 155 Oﬀer speciﬁcally required no ce in wri ng; Postal Rule did not apply. Agency Law Cases: 11. Preston Corp. Sdn. Bhd. v. Edward Leong 2 MLJ 22 Deﬁned oﬀer and acceptance in contract forma on. Tort Law Cases: 12. Donoghue v Stevenson AC 562 Established the negligence principle. 13. United Malayan Banking Corpora on Bhd v Pemungut Hasil Tanah, Kota Tinggi 2 MLJ 87 Forfeiture of land case: English equity rules did not apply as they were inconsistent with Malaysian law. Sales of Goods Cases: 14. Chan Cheng Kum & Anor v Wah Tat Bank Ltd & Anor 1 MLRA 501 Bills of lading vs Mate’s receipt in proving ownership. 15. Syarikat Batu Sinar Sdn Bhd v UMBC Finance Bhd 3 MLJ 468 Impor ng English law into Malaysian commercial transac ons. Key Highlights and Important Case Laws from the PDFs Important Details and Discussions: 1. Law of Contract Inten on to Create Legal Rela ons o Presump ons:  Domes c/social agreements: No inten on to create legal rela ons.  Business/commercial agreements: Inten on to create legal rela ons is presumed. o Rebutal of Presump on:  If strong evidence suggests otherwise. o Case Examples:  Phiong Khon v Chonh Chai Fah 2 MLJ 114 – Agreement too vague to be legally binding.  Balfour v Balfour 2 KB 571 – Husband's promise to wife was not legally binding.  Merrit v Merrit 2 All ER 760 – Agreement between estranged spouses was legally binding.  Jones v Padavaton 2 All ER 616 – Parent-child arrangements presumed not legally binding.  Simpkins v Pays 3 All ER 10 – Informal agreements among family members not legally binding.  Parker v Clark 1 All ER 93 – Circumstances indicated an inten on to create legal rela ons.  Rose & Frank Co. v JR Crompton & Bros. AC 445 – "Honour clause" rebuts contractual intent.  Carlill v Carbolic Smoke Ball Co 1 QB 256 – Adver sement was legally binding.  Edwards v Skyways Ltd 1 WLR 349 – Business agreements presumed to be legally binding. 2. Void and Voidable Contracts Void Contracts: o Agreements that are unenforceable by law (Sec on 2(g) of the Contracts Act 1950). o Examples:  Manang Lim Na ve Sdn Bhd v Manang Selaman 1 MLJ 379 – Land deal void under Sarawak Land Code.  Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong 1 MLJ 151 – Be ng rights assignment was illegal. Voidable Contracts: o Sec on 10 & 14 of the Contracts Act 1950: Contract is voidable if entered under coercion, undue inﬂuence, fraud, or misrepresenta on. o Key Cases:  Kesarmal v Valiappa Che ar MLJ 119 – Land transfer under coercion.  Chin Nam Bee Development Sdn Bhd v Tai Kim Choo 2 MLJ 117 – Addi onal payment due to coercion. 3. Coercion (Sec on 15 Contracts Act 1950) Deﬁned as an act forbidden by the Penal Code, or the unlawful detaining of property to force agreement. Key Cases: o Allied Granite Marble Industries Sdn Bhd v Chin Foong Holdings Sdn Bhd & Ors. 5 CLJ 71 – Legal duress must be proven. o Perlis Planta ons Bhd v Mohammad Abdullah Ang 2 MLRH 1 – Economic duress not recognized under Malaysian law. o Mohd Fariq Subramaniam v Naza Motor Trading Sdn Bhd 3 BLJ 249 – Examined economic duress. 4. Undue Inﬂuence (Sec on 16 Contracts Act 1950) Occurs when one party dominates the will of another and gains an unfair advantage. Key Cases: o Public Finance Bhd v Lee Bee Rubber Factory Sdn Bhd & Ors. 1 MLJ 495 – Rela onship-based undue inﬂuence. o Polygram Records Sdn Bhd v The Search & Anor. 3 MLJ 127 – Undue inﬂuence in music contract. o Letchemy Arumugam v Annamalay 2 MLJ 198 – Developer misled an illiterate purchaser. o Che Som bte Yip & Ors. v Maha Pte Ltd & Ors 3 MLJ 468 – Mortgage deed set aside due to undue inﬂuence. o Inche Noriah v Shaik Allie bin Omar AC 127 – Deed of gi set aside due to undue inﬂuence. 5. Fraud (Sec on 17 Contracts Act 1950) Deﬁni on: o Inten onal deceit to induce contract forma on. o Includes false sugges ons, ac ve concealment, false promises, and acts designed to deceive. Key Cases: o Derry v Peek (1889) 14 App Cas 337 – Deﬁned fraudulent misrepresenta on. o Kheng Chwee Lian v Wong Tak Thong 2 MLJ 320 – Fraudulent misrepresenta on in land agreement. o Wei Tah Construc on (B) Co Sdn Bhd v Atlas Corp Sdn Bhd 2 MLJ 157 – Fraud excep on: Buyer failed to inspect land. o Atwood v Small (1838) 6 Cl & Fin 232 – No rescission where buyer relied on their own veriﬁca on. 6. Misrepresenta on (Sec on 18 Contracts Act 1950) Types: o Fraudulent misrepresenta on – Inten onal false statements. o Negligent misrepresenta on – False statements made carelessly. o Innocent misrepresenta on – False statements made without intent to deceive. Key Cases: o Kheng Chwee Lian v Wong Tak Thong 2 MLJ 320 – Fraud and misrepresenta on overlap. o Wei Tah Construc on (B) Co Sdn Bhd v Atlas Corp Sdn Bhd 2 MLJ 157 – Duty to verify. o Atwood v Small (1838) 6 Cl & Fin 232 – No rescission if buyer independently veriﬁed informa on. 7. Mistake Common Mistake (Both par es mistaken about fundamental fact): o Couturier v Has e (1852) 8 Ex. 40 – Goods ceased to exist at contract forma on. o Cooper v Phibbs AC 161 – Mistaken ownership. o Smith v Hughes LR 6 QB 597 – "Buyer beware" principle applied. Mutual Mistake (Both par es misunderstood terms): o Raﬄes v Wichelhaus (1864) 2 H & C 906 – Confusion over iden cal ship names made contract unenforceable. Unilateral Mistake (Only one party mistaken): o Cundy v Lindsay (1878) 3 App Cas 459 – Mistaken iden ty voided the contract. Malaysian Cases: o Chan Yoke Lain v Paciﬁc & Orient Insurance Co Sdn Bhd 4 CLJ Supp 8 – Signature mismatch in insurance contract. Final List of All Cases Men oned 1. Phiong Khon v Chonh Chai Fah 2 MLJ 114 2. Balfour v Balfour 2 KB 571 3. Merrit v Merrit 2 All ER 760 4. Jones v Padavaton 2 All ER 616 5. Simpkins v Pays 3 All ER 10 6. Parker v Clark 1 All ER 93 7. Rose & Frank Co. v JR Crompton & Bros. AC 445 8. Carlill v Carbolic Smoke Ball Co 1 QB 256 9. Edwards v Skyways Ltd 1 WLR 349 10. Manang Lim Na ve Sdn Bhd v Manang Selaman 1 MLJ 379 11. Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong 1 MLJ 151 12. Kesarmal v Valiappa Che ar MLJ 119 13. Chin Nam Bee Development Sdn Bhd v Tai Kim Choo 2 MLJ 117... (Full list con nues with all cases referenced above) Highlighted Important Facts and Discussions from the PDF Key Topics: 1. Essen als of a Contract o Oﬀer & Acceptance o Inten on to Create Legal Rela ons o Capacity to Contract o Considera on o Certainty o Free Consent o Validity of Contract 2. Considera on (S.2(d) Contracts Act 1950) o Considera on is required for a contract to be enforceable. o Case References:  Dunlop Pneuma c Co Ltd v Selfridge & Co. Ltd AC 847 – Considera on is "the price for which the promise of another is bought."  Currie v Misa (1875) LR 10 EX 153 – Deﬁned valuable considera on.  South East Asia Insurance Bhd v Nasir Ibrahim 2 MLJ 355 – Considera on must have a burden or detriment. 3. Types of Considera on o Executory Considera on – Future performance.  K Murugesu v Nadarajah 2 MLJ 82 – Contract upheld when future obliga ons existed. o Executed Considera on – Promise in return for an act.  Carlill v Carbolic Smoke Ball Co. 1 QB 256 – Executed considera on enforced in unilateral contracts. 4. Rules on Considera on o Legality of Considera on (S.24 Contracts Act 1950)  Must not be illegal, fraudulent, or against public policy. o Considera on Must Be Suﬃcient but Not Adequate  Phang Swee Kim v Beh I Hock MLJ 383 – Inadequate considera on does not void a contract.  Chappell & Co. Ltd v Nestlé Co. Ltd AC 87 – Even trivial considera on suﬃces. o Suﬃciency of Considera on  Tan Chiw Thoo v Tee Kim Kuay 2 MLJ 221 – Courts look at suﬃciency, not adequacy. 5. Exis ng Duty and Considera on o Collins v Godefroy (1831) 1 B & Ad 950 – Public duty is insuﬃcient considera on. o Glasbrook Brothers v Glamorgan County Council AC 270 – Extra services can cons tute valid considera on. o S lk v Myrick (1809) 2 Camp 317 – Contractual duty alone is not valid considera on. o Hartley v Ponsonby (1857) 7 E & B 872 – Going beyond contractual duty creates a new obliga on. o Williams v Roﬀey Bros & Nicholls (Contractors) Ltd 1 QB 1 – Prac cal beneﬁts can be valid considera on. 6. Considera on Moving from Promisee or Another Person o Venkata Chinnaya v Verikatara Ma’ya 1 LR 4 – Considera on can come from a third party. 7. Excep ons to Considera on (S.26 Contracts Act 1950) o Natural Love and Aﬀec on  Re Tan Soh Sim 1 MLJ 21 – No natural love between adopted children and deceased. o Promise to Compensate Past Ac ons  JM Wotherspoon Co Ltd v Henry Agency House MLJ 86 – No considera on for past obliga ons done voluntarily. o Promise to Pay a Debt Barred by Limita on  Kerpa Singh v Bariam Singh 1 MLJ 38 – Lesser payment of debt was valid under Malaysian law. 8. Capacity to Contract (S.11 Contracts Act 1950) o Age of Majority Act 1971 – Age of majority in Malaysia is 18. o Case References:  Mohori Bibee v Dhurmodas Ghouse (1903) 30 Cal 539 – Contract by minors is void.  Tan Hee Juan v The Boon Keat MLJ 96 – Minor’s land transfer was void.  Leha bin Jusoh v Awang Johari bin Hashim 1 MLJ 202 – Adult required to refund payment to a minor. 9. Contracts with Persons of Unsound Mind o Sim Kon Peter v Da n Shim Tok Keng 2 MLJ 517 – Contract was void when the deceased was of unsound mind. 10. Privity of Contract o Kepong Prospec ng Ltd v Schmidt 1 MLJ 170 – Third party could not enforce contract. o Beswick v Beswick AC 847 – Third par es cannot enforce contracts in personal capacity. o Emar Sdn Bhd v Aidigi Sdn Bhd 2 MLJ 734 – Privity of contract enforced in Malaysia. 11. Certainty in Contract Terms o Karuppan Chety v Suah Thian FM SLR 300 – Vague contract terms make an agreement void. List of All Cases Men oned in the PDF 1. Dunlop Pneuma c Co Ltd v Selfridge & Co. Ltd AC 847 2. Currie v Misa (1875) LR 10 EX 153 3. South East Asia Insurance Bhd v Nasir Ibrahim 2 MLJ 355 4. K Murugesu v Nadarajah 2 MLJ 82 5. Carlill v Carbolic Smoke Ball Co. 1 QB 256 6. Phang Swee Kim v Beh I Hock MLJ 383 7. Chappell & Co. Ltd v Nestlé Co. Ltd AC 87 8. Tan Chiw Thoo v Tee Kim Kuay 2 MLJ 221 9. Collins v Godefroy (1831) 1 B & Ad 950 10. Glasbrook Brothers v Glamorgan County Council AC 270 11. S lk v Myrick (1809) 2 Camp 317 12. Hartley v Ponsonby (1857) 7 E & B 872 13. Williams v Roﬀey Bros & Nicholls (Contractors) Ltd 1 QB 1 14. Venkata Chinnaya v Verikatara Ma’ya 1 LR 4 15. Re Tan Soh Sim 1 MLJ 21 16. JM Wotherspoon Co Ltd v Henry Agency House MLJ 86 17. Kerpa Singh v Bariam Singh 1 MLJ 38 18. Mohori Bibee v Dhurmodas Ghouse (1903) 30 Cal 539 19. Tan Hee Juan v The Boon Keat MLJ 96 20. Leha bin Jusoh v Awang Johari bin Hashim 1 MLJ 202 21. Sim Kon Peter v Da n Shim Tok Keng 2 MLJ 517 22. Kepong Prospec ng Ltd v Schmidt 1 MLJ 170 23. Beswick v Beswick AC 847 24. Emar Sdn Bhd v Aidigi Sdn Bhd 2 MLJ 734 25. Karuppan Chety v Suah Thian FM SLR 300 Highlighted Important Facts and Discussions from the PDF – Discharge of Contract Key Topics: 1. Discharge by Agreement 2. Discharge by Performance 3. Discharge by Frustra on 4. Discharge by Breach of Contract 1. Discharge by Agreement A contract may be mutually terminated by both par es. Express or implied agreement may end the contract. If a contract is silent on termina on, courts have discre on to decide. Sec on 64 of the Contracts Act 1950: o The promisee may dispense with, remit, extend, or accept alternate performance. o Illustra ons:  If A forbids B from pain ng a picture, B is no longer bound.  If A owes B RM5000 but B accepts RM2000, the whole debt is discharged. Key Case Laws: 1. New Zealand Shipping Co Ltd v Sociate des Ateliers et Chan ers de France AC 1 o A contract can be void if an uncontrollable event occurs. o However, a party cannot insist on voiding a contract if they caused the event. 2. Minister of Health v Bello 1 KB 298 o Reasonable no ce must be given before unilaterally discharging a contract. 3. Yong Mok Hin v United Malay States Sugar Industries Ltd 2 MLJ 9 o An innocent party may claim damages upon righ ul contract termina on. 2. Discharge by Performance A contract is discharged when both par es fulﬁll their contractual obliga ons. Sec on 38(1) CA 1950 – Par es must perform their promises unless excused by law. Sec on 42 CA 1950 – Performance can come from a third party. Re Krishnan Rengasamay, Ex P. Arab Malaysian Credit Bhd 4 CLJ 797 o Court rejected third-party performance as it was not done within the s pulated me. Time of Performance Sec on 56(1) CA 1950 – If me is of the essence, failure to perform makes the contract voidable. Sec on 56(2) CA 1950 – If me is not essen al, the promisee can claim compensa on for losses. Sec on 56(3) CA 1950 – If late performance is accepted without no ce, the promisee cannot claim damages. Key Case Laws: 4. Gan Hwa Kian v Shencourt Sdn Bhd 3 CLJ 538 o The plain ﬀ rescinded a Sale and Purchase Agreement due to a delay in vacant possession. o Court upheld the right to rescind and awarded compensa on. 5. MN Construc on Sdn Bhd v Evelyn @ Evelyn Sudan ak Augus ne 7 MLJ 24 o A developer’s contract was terminated for a 5-year delay. o Court held the termina on valid and rejected the developer’s speciﬁc performance claim. 3. Discharge by Frustra on Frustra on occurs when a supervening event makes the contract impossible to perform. No breach occurs; both par es are discharged from further obliga ons. Sec on 57(1) CA 1950 – An agreement to do an impossible act is void. Sec on 57(2) CA 1950 – A contract that becomes impossible a er forma on is void. Sec on 57(3) CA 1950 – If the promisor knew the act was impossible, they must compensate the promisee. Key Case Laws: 6. Cuter v Powell 101 ER 573 o A sailor’s widow was denied wages as the contract required full performance. 7. Krishnasamy a/l Supramany v Arab Malaysian Finance Bhd 7 MLJ 455 o The failure to register a car invalidated a hire-purchase agreement. o The plain ﬀ was en tled to a refund and damages. 8. Arab Malaysian Finance Bhd v Samian Sabin & Anor 5 MLJ 403 o Failure to deliver a car registra on card rendered the contract unenforceable. 9. Ramli bin Zakaria & Ors v Government of Malaysia 2 MLJ 257 o A change in government salary schemes did not frustrate a contract. o The contractual obliga ons remained substan ally the same. 4. Discharge by Breach of Contract Breach of contract occurs when a party fails or refuses to fulﬁll contractual obliga ons. Types of Breach: o Actual Breach – One party fails to perform their obliga ons. o An cipatory Breach – One party repudiates the contract before the performance is due. Sec on 40 CA 1950 – If one party refuses to perform, the other may terminate the contract. Key Case Laws: 10. Chua Ngah Chin v Ng Kie En 1 MLJ 267 The plain ﬀ righ ully terminated a construc on contract due to delays. The defendant could not enforce speciﬁc performance. 11. Heyman v Darwins Ltd AC 356 A party may either terminate the contract or con nue with it and claim damages. List of All Cases Men oned in the PDF 1. New Zealand Shipping Co Ltd v Sociate des Ateliers et Chan ers de France AC 1 2. Minister of Health v Bello 1 KB 298 3. Yong Mok Hin v United Malay States Sugar Industries Ltd 2 MLJ 9 4. Re Krishnan Rengasamay, Ex P. Arab Malaysian Credit Bhd 4 CLJ 797 5. Gan Hwa Kian v Shencourt Sdn Bhd 3 CLJ 538 6. MN Construc on Sdn Bhd v Evelyn @ Evelyn Sudan ak Augus ne 7 MLJ 24 7. Cuter v Powell 101 ER 573 8. Krishnasamy a/l Supramany v Arab Malaysian Finance Bhd 7 MLJ 455 9. Arab Malaysian Finance Bhd v Samian Sabin & Anor 5 MLJ 403 10. Ramli bin Zakaria & Ors v Government of Malaysia 2 MLJ 257 11. Chua Ngah Chin v Ng Kie En 1 MLJ 267 12. Heyman v Darwins Ltd AC 356 Highlighted Important Facts and Discussions from the PDF – Remedies for Breach of Contract Key Topics: 1. Rescission 2. Damages 3. Speciﬁc Performance 4. Injunc on 5. Quantum Meruit 1. Rescission Rescission allows an innocent party to cancel a contract due to coercion, fraud, misrepresenta on, undue inﬂuence, or breach of contract (Sec ons 19(1), 20, 40, and 56(1) of the Contracts Act 1950). The right to rescind must be communicated clearly within a reasonable me. Key Case Laws: 1. P. Palakrishnan a/l Perianan v Krishnamoorty a/l Sinniah & Anor. 5 MLJ 389 o An innocent party must communicate the decision to rescind or aﬃrm the contract within a reasonable me. 2. Speciﬁc Relief Act 1950 – Sec ons 34 to 37 o S.34: Rescission for mistake, fraud, or fundamental breach. o S.35: Rescission as an alterna ve to speciﬁc performance. o S.37: Courts may require equitable compensa on when gran ng rescission. 2. Damages Monetary compensa on awarded for contract breaches. Types of Damages: o Unliquidated Damages: Determined by the court. o Liquidated Damages: Pre-agreed compensa on amount. o Nominal Damages: No signiﬁcant loss but contract was breached. o Exemplary Damages: Rarely awarded in contract cases. Statutory Provisions (CA 1950) Sec on 74: Compensa on for loss or damage caused by a breach. Sec on 75: Compensa on for breach when a penalty is s pulated. Sec on 76: Compensa on when a party righ ully rescinds a contract. Key Case Laws: 3. Hadley v Baxendale (1854) 9 Exch. 341 o Established the "Remoteness of Damages" rule. o Damages recoverable only if: 1. Loss arises naturally from the breach. 2. Special damages are recoverable only if foreseen by both par es. 4. Tan Ah Theam & Ors v Ong Han Meng 4 MLJ 193 o Reinforced Hadley v Baxendale on the remoteness of damages. 5. Arkitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd & Anor 2 MLJ 625 o Applied remoteness of damages principle in Malaysian contract law. 6. Hainal-Konyi (M) Sdn Bhd v Luxor Holdings Sdn Bhd 6 MLJ 480 o Another applica on of Hadley v Baxendale. 7. Bee Chuan Rubber Factory Sdn Bhd v Loo Sam Moi 2 MLJ 14 o Plain ﬀ awarded compensa on for rental costs incurred due to delayed property comple on. 8. Tham Cheow Toh v Associated Metal Smelters Ltd 1 MLJ 171 o Second limb of Hadley v Baxendale applied. 9. Selva Kumar a/l Murugiah v Thiagrarajah a/l Retnasamy 1 MLJ 817 o Courts required actual loss proof, even in liquidated damages cases. 10. Johor Coastal Development Sdn Bhd v Constrajaya Sdn Bhd 4 CLJ 569 Reaﬃrmed Selva Kumar on proof of actual loss. 11. Cubic Electronics Sdn. Bhd. (in liquida on) v Mars Telecommunica ons Sdn. Bhd. MLJU 1935 Federal Court departed from Selva Kumar – no need to prove actual loss for liquidated damages in every case. 3. Speciﬁc Performance Discre onary court order compelling contract performance. Awarded only when monetary compensa on is inadequate. Sec ons 11-20 of the Speciﬁc Relief Act 1950 govern speciﬁc performance. Key situa ons where speciﬁc performance may be granted: 1. Unique items with no monetary equivalent. 2. No clear standard for damage assessment. 3. Monetary compensa on is not adequate. Key Case Laws: 12. Gan Realty Sdn Bhd & Ors. v Nicholas & Ors. 2 MLJ 110 Court granted speciﬁc performance when shares were unavailable in the market. 13. Yeo Long Seng v Lucky Park (Pte) Ltd 1 MLJ 20 Court refused speciﬁc performance since damages were suﬃcient. 14. Lim Nyuk Chan v Wong Sz Tsin MLJ 200 Speciﬁc performance denied due to uncertain contract terms. 4. Injunc on Court order to prevent or compel speciﬁc ac ons. Types of Injunc ons: o Prohibitory Injunc on: Prevents contract breach. o Mandatory Injunc on: Requires contractual obliga ons to be fulﬁlled. o Interlocutory Injunc on: Maintains status quo pending trial. o Mareva Injunc on: Prevents asset disposal before judgment. o Anton Piller Order: Prevents destruc on of evidence. Key Case Laws: 15. Broome (Selangor) Rubber Planta ons v R H Whitley 1 FMSLR 365 Prohibitory injunc on granted to restrain an employee from compe ng. 16. Neoh Siew Eng & Anor. v Too Chee Kwang MLJ 272 Mandatory injunc on to ensure water supply for tenants. 17. Mareva Compania Naviera SA v Interna onal Bulk Carriers SA 1 All ER 213 Mareva Injunc on prevents removal of assets before trial. 18. Anton Piller v Manufacturing Process Ltd Ch 55 Anton Piller Order issued to prevent destruc on of evidence. 5. Quantum Meruit "As much as he has earned" – payment for work done under an incomplete contract. Available when: o The contract is par ally performed. o A party accepted beneﬁts from the work done. Key Case Laws: 19. Sumpter v Hedges 1 QB 673 Contractor could not claim payment as the contract was not divisible. 20. Haji Hasnan v Tan Ah Kian MLJ 175 Court awarded quantum meruit to a subcontractor for work done. 21. Yee Hoong Loong Corp Sdn Bhd v Kwong Fook Seng Co 1 MLJ 163 Sec ons 65, 66, and 71 CA 1950 support quantum meruit claims. 22. Poh Geok Sing v HB Ent. Sdn Bhd 1 MLJ 617 Reinforced quantum meruit principles. List of All Cases Men oned in the PDF 1. P. Palakrishnan a/l Perianan v Krishnamoorty a/l Sinniah & Anor. 5 MLJ 389 2. Hadley v Baxendale (1854) 9 Exch. 341 3. Tan Ah Theam & Ors v Ong Han Meng 4 MLJ 193 4. Arkitek Tenggara Sdn Bhd v Mid Valley City Sdn Bhd & Anor 2 MLJ 625 5. Hainal-Konyi (M) Sdn Bhd v Luxor Holdings Sdn Bhd 6 MLJ 480 6. Bee Chuan Rubber Factory Sdn Bhd v Loo Sam Moi 2 MLJ 14 7. Tham Cheow Toh v Associated Metal Smelters Ltd 1 MLJ 171 8. Selva Kumar a/l Murugiah v Thiagrarajah a/l Retnasamy 1 MLJ 817 9. Cubic Electronics Sdn. Bhd. (in liquida on) v Mars Telecommunica ons Sdn. Bhd. MLJU 1935 10. Gan Realty Sdn Bhd v Nicholas & Ors. 2 MLJ 110... (Full list continues above) Highlighted Important Facts and Discussions – Law of Tort (Part 3) Key Topics: 1. Occupier’s Liability 2. Types of Entrants and Duty of Care 3. Defenses in Occupier’s Liability 4. Vicarious Liability 5. Nuisance – Public and Private 6. Defenses to Nuisance 1. Occupier’s Liability Deﬁni on: Liability of an occupier for injuries/damages suﬀered by lawful visitors due to unsafe premises. Occupier: A person who has immediate supervision, control, and power to permit or prohibit entry. Premises: Includes buildings, vehicles used to carry persons (e.g., tractors, scaﬀolding, ladders, walls, pylons). Key Case Laws: 1. Wheat v Lacon & Co Ltd 1 All ER 582 HL o Facts: A guest fell and died in a public house where the owner had some control over the premises. o Held: An occupier is anyone with suﬃcient control over premises, even if control is shared. 2. Wheeler v Copas 3 All ER 405 o Held: A ladder is considered a "premises" under occupier’s liability. 3. China Insurance Co Ltd v Who Hup (Pte) Ltd 2 MLJ 57 o Held: A contractor is an occupier of a construc on site. 4. AMF Interna onal Ltd v Magnet Bowling Ltd 2 All ER 789 o Held: Both owner and contractor can be occupiers and jointly liable. 5. Mohamad Yusuf v KT & R Engineering Construc on Sdn Bhd & Anor MLRHU 573 o Held: A site owner and contractor may both be liable under occupier’s liability. 6. Ravindrand Kunji Kutan v Tenaga Nasional Berhad 2 MLRH 219 o Held: Once control shi s to the contractor, the contractor becomes the occupier. 2. Types of Entrants and Duty of Care There are four types of entrants, each owed diﬀerent du es: 1. Contractual Entrants – Example: Hotel Guests, Tenants o Duty: Ensure the premises are safe and ﬁt for their purpose. o Case Law: MacLenan v Segar 2 KB 325  Hotel was liable for a ﬁre breakout due to a lack of emergency exits. 2. Invitees – Example: Customers, Business Visitors o Duty: Ensure no unusual danger exists. o Case Law: Pearson v Lambeth 2 KB 353  An invitee is someone who enters with permission for mutual beneﬁt. 3. Licensees – Example: Social Guests, Visitors o Duty: Protect against hidden dangers but not obvious ones. o Case Law: London Graving Dock v Horton AC 737 HL  No liability if licensee is aware of the risk. 4. Trespassers – Example: Unauthorized persons o Duty: Avoid crea ng concealed traps. o Case Law: Robert Addie & Sons v Dumbreck AC 358  No duty to ensure safety, but must not set up hidden dangers. o Case Law: Bri sh Railways Board v Herrington 1 All ER 749 HL  The standard of care depends on knowledge of trespassers. 3. Defenses in Occupier’s Liability Volen Non Fit Injuria (Consent to Risk) o If an entrant knew and accepted the risk, the occupier is not liable. o Case Law: Lee Geok Theng v Ngee Tai Hoo & Anor 4 MLJ 42  Consent must be real, not forced or assumed. Warning Signs & No ces o Proper warnings absolve occupier’s liability. o Case Law: Ashdown v William Samuels & Sons Ltd 1 QB 409  Held: Clear warning signs on the premises protected the defendant. 4. Vicarious Liability Deﬁni on: Employers are liable for their employees' wrongful acts if commited within the course of employment. Three Tests to Determine Employment Rela onship: 1. Control Test (Employer’s authority over employee’s work)  Case Law: Collins v Her ordshire County Council KB 598  Held: Employer had control and was vicariously liable. 2. Organiza on Test (Is the worker part of the business?)  Case Law: Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd 2 MLJ 71 3. Mul ple Test (Combina on of control and integra on)  Case Law: Ready Mixed Concrete Ltd v Minister of Pensions 2 QB 497  Held: A worker must be fully integrated into the business to be considered an employee. Employer’s Liability for Crimes by Employees o If an employer failed to supervise, they may be liable. o Case Law: Lloyd v Grace, Smith & Co. AC 716  A law clerk defrauded clients, and the employer was held vicariously liable. Liability for Independent Contractors o Employers are not usually liable, but excep ons exist:  Case Law: Ellis v Sheﬃeld Gas Consumer Co (1853) 2 E&B 767  Employer was liable because they allowed contractors to act negligently. 5. Nuisance – Public and Private Public Nuisance: o Aﬀects a large group of people. o Case Law: Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors 2 MLJ 156  A public nuisance aﬀects the comfort and convenience of a class of people. Private Nuisance: o Interference with the enjoyment of land. o Case Law: Woon Tan Kan v Asian Rare Earth Sdn Bhd 4 CLJ 2299  Obnoxious fumes from a factory were ac onable as private nuisance. Factors in Private Nuisance Claims 1. Substan al Interference  Case Law: Goh Chat Ngee v Toh Yan 2 CLJ 1163  Water escaping from a mine causing ﬂooding was ac onable. 2. Unreasonableness  Case Law: St Helen’s Smel ng Co v Tipping 11 HL Cas 642  Smoke damage in an industrial area was not considered unreasonable. 3. Public Beneﬁt  Case Law: Perbadanan Pengurusan Taman Bukit Jambul v Kerajaan Malaysia 1 AMR 228  Court dismissed nuisance claims since the renova ons beneﬁted the public. 6. Defenses to Nuisance Prescrip on (Long-Term Use) o Case Law: Sturges v Bridgman 11 Ch D 852  Noisy factory opera ng for 20 years was not protected, as the nuisance only started aﬀec ng the plain ﬀ later. Statutory Authority o If an act is legally authorized, the defendant may escape liability. List of All Cases Men oned 1. Wheat v Lacon & Co Ltd 1 All ER 582 HL 2. Wheeler v Copas 3 All ER 405 3. Bri sh Railways Board v Herrington 1 All ER 749 HL 4. Lloyd v Grace, Smith & Co. AC 716 5. Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors 2 MLJ 156 6. Sturges v Bridgman 11 Ch D 852 Highlighted Important Facts and Discussions – Law of Tort (Part 2) Key Topics: 1. Negligence – Deﬁni on and Evolu on 2. The Neighbourhood Principle 3. Elements of Negligence 4. Duty of Care 5. Breach of Duty 6. Causa on and Remoteness of Damage 7. Defences to Negligence 8. Occupier’s Liability 9. Res Ipsa Loquitur 10. Types of Injury and Damage 1. Negligence – Deﬁni on and Evolu on Deﬁni on: Negligence is the failure to exercise reasonable care resul ng in harm to another party. Key Development: o Before Donoghue v Stevenson , negligence claims were primarily based on contractual rela onships. o The case expanded negligence law beyond contracts, making duty of care applicable to third par es. 2. The Neighbourhood Principle Lord Atkin’s Rule (Donoghue v Stevenson ): o You must take reasonable care to avoid acts or omissions likely to injure your neighbour. o Neighbour = Anyone closely and directly aﬀected by one’s ac ons. Key Case Law: 1. Donoghue v Stevenson A.C 562 o Facts: Plain ﬀ consumed a ginger beer with a decomposed snail inside. o Held: Manufacturer owed a duty of care despite no direct contract. o Impact: Established duty of care for manufacturers towards consumers. 3. Elements of Negligence To succeed in a negligence claim, a plain ﬀ must prove: 1. Duty of Care 2. Breach of Duty 3. Damage Caused (Causa on) 4. Duty of Care Blyth v Birmingham Waterworks Co o Deﬁned negligence as failure to do something a reasonable person would do. Objec ve Test for Duty of Care: o Would a reasonable person foresee that their conduct would cause harm? o If YES → Duty of Care exists. o If NO → No duty of care. Key Case Laws: 2. Hay (or Bourhill) v Young AC 92 o Held: The plain ﬀ, who suﬀered nervous shock a er witnessing an accident, was outside the zone of foreseeable danger. o Principle: The duty of care does not extend to unforeseeable vic ms. 3. Home Oﬃce v Dorset Yacht Co Ltd AC 1004 o Facts: Juvenile oﬀenders escaped due to negligence of oﬃcers and damaged a yacht. o Held: Government oﬃcers owed a duty of care to prevent escape. o Principle: Duty of care extends to prevent foreseeable harm from third par es. 4. Anns v Merton London Borough Council AC 728 o Introduced a two-stage test: 1. Was there a close rela onship of proximity? 2. Are there policy reasons to limit the duty? o Later overruled in Caparo Industries Plc v Dickman. 5. Caparo Industries Plc v Dickman 1 All ER 568 HOL o Introduced a three-stage test: 1. Foreseeability – Was the damage reasonably foreseeable? 2. Proximity – Was there a suﬃciently close rela onship? 3. Fairness, jus ce, and reasonableness – Should the duty be imposed? 6. Sathu v Hawthornden Rubber Estate Co Ltd MLJ 318 o Held: The estate owner had no duty because it was not foreseeable that the plain ﬀ’s catle would stray onto the defendant’s property. 5. Breach of Duty Deﬁni on: Failure to meet the reasonable standard of care expected in the circumstances. Key Case Laws: 7. Blyth v Birmingham Waterworks Co 11 Ex 781 o Deﬁned the standard of care as what a reasonable person would do in similar circumstances. 8. Smith v Litlewoods Organisa ons Ltd UKHL 18 o Facts: Vandals started a ﬁre in an abandoned building. oHeld: The property owner was not liable as the risk was not foreseeable. 9. Carmarthenshire County Council v Lewis AC 549 o Held: A school authority was liable for allowing a child to escape and cause an accident. 6. Causa on and Remoteness of Damage Causa on in Fact – Plain ﬀ must prove that the defendant’s act directly caused the damage. Causa on in Law – Damage must be reasonably foreseeable. Key Case Laws: 10. Barnet v Chelsea & Kensington Hospital Management Commitee 1 QB 428 Held: The hospital was not liable because the pa ent would have died regardless. 11. Wagon Mound AC 388 Introduced the reasonable foresight test. Held: A ship owner was not liable for oil spill damage because the ﬁre was unforeseeable. 7. Defences to Negligence 1. Contributory Negligence – Plain ﬀ par ally responsible for harm. 2. Volen Non Fit Injuria – Plain ﬀ voluntarily accepted the risk. 3. Illegality (Ex Turpi Causa Non Oritur Ac o) – No claim if engaged in illegal ac vity. 8. Occupier’s Liability Deﬁni on: Duty of care owed by occupiers towards visitors and trespassers. Key Case Laws: 12. Goldman v Hargrave Ch 645 Held: Landowners must take reasonable steps to prevent foreseeable harm. 13. Pelantar Agresif (M) Sdn Bhd v Projek Lebuhraya Usahasama Berhad 4 MLRH 270 Held: Consent from authori es does not protect from liability in a trespass claim. 9. Res Ipsa Loquitur Meaning: “The thing speaks for itself.” Applica on: If an accident would not happen without negligence, then the defendant is presumed negligent. Key Case Laws: 14. Ward v Tesco Stores Ltd 1 WLR 810 Held: A supermarket was liable for injuries caused by spilled yogurt, as it had a duty to ensure safety. 15. Scot v London & St Katherine’s Docks (1865) 3 H&C 596 Held: Bags of sugar falling on a plain ﬀ implied negligence. 10. Types of Injury and Damage 1. Physical Injury (Recoverable) 2. Psychiatric Harm (Recoverable in limited cases) o Alcock v Chief Constable of South Yorkshire Police – No duty owed for psychiatric harm unless close proximity to the event. 3. Economic Loss o Consequen al Economic Loss (Recoverable) o Pure Economic Loss (Not Recoverable)  Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd & Anor 4 MLRA 1 – Conﬁrmed non-recoverability of pure economic loss. List of All Cases Men oned 1. Donoghue v Stevenson A.C 562 2. Blyth v Birmingham Waterworks Co 11 Ex 781 3. Caparo Industries Plc v Dickman 1 All ER 568 4. Wagon Mound AC 388 5. Barnet v Chelsea & Kensington Hospital Management Commitee 1 QB 428 6. Alcock v Chief Constable of South Yorkshire Police... (Full list included above) Highlighted Important Facts and Discussions – Law of Tort (Part 1) Key Topics: 1. Introduc on to Tort Law 2. Diﬀerences Between Tort and Other Branches of Law 3. Sources of Tort Law in Malaysia 4. Types of Torts 5. Inten onal Torts 6. Trespass to Person 7. Trespass to Land 8. Interference with Goods 9. Defenses to Inten onal Torts 1. Introduc on to Tort Law Deﬁni on of Tort: o A civil wrong leading to liability. o Winﬁeld: Tor ous liability arises from breach of a duty ﬁxed by law. o Sir John Salmond: A civil wrong for which the remedy is unliquidated damages. Key Case Laws: 1. Gautret v Egerton LR 2 CP 371 o No ac on lies against a person who merely omits to warn someone of danger. 2. Diﬀerences Between Tort and Other Branches of Law Aspect Contract Law Criminal Law Tort Law Basis of Based on agreed terms Based on statutory Based on common law Liability law du es Par es Only contrac ng par es Applies to all Applies to everyone Bound ci zens Remedies Damages or speciﬁc Punishment by the Compensa on performance state (damages) 3. Sources of Tort Law in Malaysia English Common Law (via Civil Law Act 1956) Judicial Precedents (decisions from Malaysian courts) Local Statutes (e.g., Defama on Act 1957) 4. Types of Torts Inten onal Torts Negligence Defama on Nuisance Strict Liability Emerging Torts (e.g., malicious prosecu on, false statements) 5. Inten onal Torts Requires inten on on the part of the wrongdoer. Types: 1. Trespass to Person 2. Trespass to Land 3. Interference with Goods Key Case Laws: 2. Fowler v Lanning 1 All ER 290 o Trespass requires either intent or carelessness. 3. Letang v Cooper 1 QB 232 o Trespass requires inten on at the me of the act. 6. Trespass to Person Deﬁni on: o Unlawful interference with a person’s right to safety or movement. Types: 1. Assault 2. Batery 3. False Imprisonment Assault Key Elements: o Inten on o Reasonable apprehension of harm o Ability to carry out the threat Key Case Laws: 4. Tuberville v Savage 1 Mod Rep 3 o Words nega ng intent prevent assault. 5. R v St George 9 C&P 483 o Unloaded gun pointed at a person was s ll assault. 6. Collins v Wilcock 3 All ER 374 o Deﬁning Assault: Threat of immediate force. Batery Key Elements: o Inten onal applica on of force o Physical contact o No consent Key Case Laws: 7. Scot v Shepherd 2 Wm BL 892 o Transferred intent applies (e.g., throwing an object that injures another). 8. Pursell v Horn 8 Ad & El 602 o Throwing water at a person is batery. 9. Nash v Sheen CLY 3726 o Unauthorized hair treatment led to a successful batery claim. False Imprisonment Key Elements: o Total restric on of movement o No lawful jus ﬁca on o Direct result of the defendant’s ac ons Key Case Laws: 10. Datuk Seri Khalid Abu Bakar & Ors v N Indra P Nallathamby & Anor 6 MLRA 489 COA o False imprisonment occurs only if unlawful. 11. Bird v Jones 7 QB 742 o Par al obstruc on does not count as false imprisonment. 7. Trespass to Land Deﬁni on: o Unlawful entry onto another’s land. Key Elements: o Inten on o Interference with land Key Case Laws: 12. Basely v Clarkson 3 Lev 37 o Mistaken entry s ll counts as trespass. 13. Gregory v Piper 9 B&C 591 o Garbage rolling onto another’s land is trespass. 14. Tan Wee Choon v Ong Peck Seng 1 MLJ 322 o Con nuing trespass (when fencing is unlawfully removed). 8. Interference with Goods Types: 1. Trespass to Goods 2. Conversion 3. De nue Trespass to Goods Key Elements: o Inten onal interference o Physical contact with goods Key Case Laws: 15. Wilson v Lombank 1 WLR 1294 o Mistaken belief does not excuse taking another’s car. Conversion Deﬁni on: o Wrongful dealing with goods. Key Elements: o Inten onal dealing o Depriving the owner of possession Key Case Laws: 16. Hollins v Fowlier LR 7 HL 757 o Selling stolen goods = conversion. 17. Che Din Mohamed Hashim v Teoh Ong Thor 16 MLJ 238 o Seller without ownership cannot pass good tle. De nue Deﬁni on: o Unlawful refusal to return goods a er a demand is made. Key Case Laws: 18. Sajan Singh v Sardara Ali 26 MLJ 52 PC o Immediate possession must be proven. 9. Defenses to Inten onal Torts 1. Self-defense 2. Contributory negligence 3. Necessity 4. Mistake 5. Inevitable accident 6. Consent 7. Discipline 8. Lawful arrest 9. Statutory authority 10. Ex turpi causa non oritur ac o (Illegality defense) Key Case Laws: 19. Lane v Holloway 1 QB 379 o Excessive force negates self-defense. 20. Creswell v Siri 2 All ER 730 o Shoo ng a dangerous dog was jus ﬁed under necessity. Highlighted Important Facts and Discussions – Termina on of Agency Key Topics: 1. Introduc on to Termina on of Agency 2. Termina on by Act of the Par es 3. Termina on by Opera on of Law 4. Power to Revoke Agency 5. Eﬀects of Termina on on the Agent 6. Wrongful Termina on of Agency 1. Introduc on to Termina on of Agency Deﬁni on: Termina on of agency refers to ending the legal rela onship between a principal and an agent. Modes of Termina on: 1. By an act of either party (principal or agent) 2. By opera on of law Relevant Law: Sec ons 154 - 163 of the Contracts Act 1950 govern the termina on of agency. 2. Termina on by Act of the Par es Sec on 158 CA 1950: o If an agency contract is for a ﬁxed period, neither party can terminate it without suﬃcient cause. o Compensa on may be payable to the aggrieved party if the contract is terminated prematurely. Modes of Termina on: o Revoca on by the Principal (S.154) o Renuncia on by the Agent (S.154) o Mutual Agreement (S.158) o Expiry of Fixed Term Contract Key Case Laws: 1. American Interna onal Assurance Co. Ltd v Koh Yen Bee 4 MLJ 301 COA o Facts: The agency contract allowed termina on with 15 days' writen no ce. o Held: The contract was not a ﬁxed-term contract, so Sec ons 158 and 159 were inapplicable. o Legal Principle: The termina on clause was valid and binding. 2. Biing Han Enterprise Sdn Bhd v Mohd Nor Bin Abd Rahman 4 CLJ 465 CA o Facts: A contract for a ﬁxed period was terminated without reasonable no ce. o Held: The Court ruled that Sec ons 158 and 159 must be read together. oLegal Principle: Even if a contract is for a ﬁxed period, reasonable no ce is required to avoid damages. 3. Merbok Hilir Berhad v Sheikh Khaled Jassem Mohammad 1 MLRA 62 o Facts: Agency was for a ﬁxed term; the principal terminated it without suﬃcient cause. o Held: Court upheld that a reasonable no ce period is required for termina on. 3. Termina on by Opera on of Law Sec on 154 CA 1950 provides that an agency can terminate automa cally in cases of: 1. Comple on of Agency Business 2. Expiry of Contract Period 3. Death or Insanity of Principal or Agent 4. Bankruptcy of the Principal 5. Subsequent Illegality of the Agency Key Case Laws: 4. Sohrabji Dhunji Medora v Oriental Govt. Security Life Assurance Co. Ltd (1946) AIR 1946 o Facts: A ﬁrm held an agency for decades, which was terminated with 3.5 months’ no ce. o Held: Court ruled 3.5 months was unreasonable; a 2-year no ce was reasonable given the long rela onship. 5. Syarikat Jaya v Star Publica on (M) Bhd 2 MLRH 824; (1990) 1 MLJ 31 o Facts: Sole agency agreement was terminated with 3 months' no ce, but the contract had no termina on clause. o Held: Court decided 6 months would have been a reasonable termina on no ce. 4. Power to Revoke Agency Limita ons on Revoca on (S.155 & S.157 CA 1950) o Principal cannot revoke agency if: 1. The agent has an interest in the subject mater (S.155). 2. Authority has been partly exercised (S.157). Illustra ons under S.155: o If A gives B authority to sell land and repay debts from proceeds, A cannot revoke the authority. o If B makes ﬁnancial advances on goods before sale, B has an irrevocable interest. Key Case Laws: 6. Smart v Sanders (1848) 5 CB 895 o Facts: An agent advanced money on goods consigned for sale. The principal later revoked the agency. o Held: Court ruled the agency could not be revoked, as the agent had an interest in the goods. 7. Sidambaram a/l Torosamy v Lok Bee Yeong 4 MLJ 570 o Facts: Agent was given irrevocable power of atorney to sell property. o Held: The Court of Appeal ruled the power of atorney was irrevocable. 8. Read v Anderson QBD 779 o Facts: A be ng agent placed bets for a principal, who later tried to revoke his authority. o Held: Court ruled that once bets were placed, the principal could not revoke the agent’s authority. 5. Eﬀects of Termina on on the Agent Sec on 161 CA 1950: Termina on does not take eﬀect: o Un l it is known to the agent (for internal purposes). o Un l it is known to third par es (for external dealings). Key Case Laws: 9. Ng Chin Tai v Ananda Kumar Krishnan 6 MLRA 47 FC o Facts: An agent who secured a contract for seafood supply sought commission a er termina on. o Held: Court ruled that the agent was s ll en tled to commission as long as the agreement remained in eﬀect. 6. Wrongful Termina on of Agency If an agency is wrongfully terminated without reasonable no ce, the aﬀected party can claim damages. Compensa on may include: o Loss of commission o Business disrup on o Post-termina on losses Key Case Laws: 10. Merbok Hilir Bhd v Sheikh Khaled Jassem Mohammad & Other Appeals 1 MLRA 62 COA Facts: A sole agent of mber products was terminated with only 15 days' no ce a er 12 years of service. Held: Court ruled that 3 months' no ce was reasonable, and awarded damages based on commission losses. List of All Cases Men oned in the PDF 1. American Interna onal Assurance Co. Ltd v Koh Yen Bee 4 MLJ 301 COA 2. Biing Han Enterprise Sdn Bhd v Mohd Nor Bin Abd Rahman 4 CLJ 465 CA 3. Merbok Hilir Berhad v Sheikh Khaled Jassem Mohammad 1 MLRA 62 4. Sohrabji Dhunji Medora v Oriental Govt. Security Life Assurance Co. Ltd (1946) AIR 1946 5. Syarikat Jaya v Star Publica on (M) Bhd 2 MLRH 824; (1990) 1 MLJ 31 6. Smart v Sanders (1848) 5 CB 895 7. Sidambaram a/l Torosamy v Lok Bee Yeong 4 MLJ 570 8. Read v Anderson QBD 779 9. Ng Chin Tai v Ananda Kumar Krishnan 6 MLRA 47 FC Highlighted Important Facts and Discussions – Law of Agency Key Topics: 1. Introduc on to Agency 2. Forma on of Agency 3. Authority of Agents 4. Du es of an Agent 5. Du es of a Principal 6. Types of Agency 7. Liabili es in Agency 8. Termina on of Agency 1. Introduc on to Agency Deﬁni on (S.135 Contracts Act 1950) o An agent is a person employed to act for a principal in dealings with third par es. o The rela onship between an agent and a principal is ﬁduciary in nature. Key Case Laws: 1. Loon Karan Sohan Lal v Firm John & Co. AIR All 308 o Court held that the existence of agency depends on the nature of the rela onship, not just the label in the agreement. 2. Forma on of Agency Modes of Forma on (S.137 CA 1950): o Express Appointment – By agreement, either oral or writen. o Implied Appointment – By conduct or surrounding circumstances. o By Estoppel – When a principal's ac ons lead others to believe a person is their agent. o By Ra ﬁca on – When a principal accepts an unauthorized act performed by another on their behalf. o By Necessity – When an agent acts in an emergency situa on. Key Case Laws: 2. Lakshiminarayan Ram Gopal & Sons v Hyderabad Government (1954) AIR SC 364 o Dis nguished between an agent and an employee; agents are not subject to direct control like employees. 3. Chan Yin Tee v William Jacks & Co. (Malaya) Ltd. MLJ 290 o Partnership and agency overlap; every partner is considered an agent of the ﬁrm. 4. KG Jaya Sdn Bhd v Pan Reliance Sdn Bhd 1 MLJ 233 o Implied agency inferred from surrounding circumstances. 3. Authority of Agents Types of Authority: o Actual Authority:  Express – Clearly given in wri ng or verbally.  Implied – Derived from conduct or circumstances. o Apparent/Ostensible Authority:  When a principal allows a third party to assume that an agent has authority. Key Case Laws: 5. Freeman & Lockyer v Buckhurst Park Proper es Ltd 2 QB 480 o Company was held bound by the agent’s unauthorized act due to apparent authority. 6. Hatman v Hornsby (1897) 44 SW 242 o Unauthorized ac ons later approved by the principal amount to valid ra ﬁca on. 7. Keighley Maxsted & Co. v Durrant AC 240 o Ra ﬁca on must be complete, and agent must have acted as an agent, not as a principal. 4. Du es of an Agent S.164-178 Contracts Act 1950 o Obey principal’s instruc ons – If an agent acts outside authority, they are liable. o Exercise skill and diligence – Agents must act with reasonable care. o Avoid conﬂict of interest – Agents must not make secret proﬁts. o Render proper accounts – Agents must maintain accurate ﬁnancial records. Key Case Laws: 8. Turpin v Bilton 5 Man. & G. 455 o Agent failed to follow the principal’s instruc ons for insurance; held liable for the loss. 9. Boston Deep Sea Fishing and Ice Co. v Ansell (1888) 39 Ch D 339 o Agent was dismissed for secretly beneﬁ ng from his posi on. 10. Tan Kiong Hwa v Andrew S.H Chong 2 MLJ 188 An agent who sells at a higher price than instructed must return the diﬀerence. 5. Du es of a Principal S.175-178 Contracts Act 1950 o Pay agreed commission/remunera on o Reimburse for expenses incurred o Indemnify the agent for lawful acts Key Case Laws: 11. Luxor v Cooper AC 108 Principal cannot willfully hinder an agent from earning commission. 12. Solloway & Anor v McLaughlin AC 247 Fraudulent agents lose their right to indemnity. 6. Types of Agency Agency by Estoppel (S.190 CA 1950) o If a principal allows a third party to believe someone is their agent, they cannot later deny it. Key Case Laws: 13. Freeman & Lockyer v Buckhurst Park Proper es Ltd 2 QB 480 Principal was estopped from denying agent’s authority. Agency by Necessity (S.142 CA 1950) o An agent has authority in an emergency to act to protect the principal’s interests. Key Case Laws: 14. Springer v. Great Western Railway Company 1 KB 257 No necessity existed because the principal could have been contacted. 15. Great Northern Railway Co. v. Swaﬃeld (1874) LR 9 Exch 132 Agency by necessity recognized; railway company acted to protect the goods. Agency by Cohabita on o A wife has implied authority to pledge her husband's credit for household necessi es. Key Case Laws: 16. Debenham v Mellon Husband was not liable because there was no domes c establishment. 7. Liabili es in Agency Agent’s Liability for Unauthorized Acts o If an agent exceeds their authority, they may be personally liable. o Warranty of Authority: If an agent falsely represents their authority, they can be sued. Key Case Laws: 17. Yonge v Toynbee 1 KB 215 Solicitors acted for a client later declared insane. They were held liable. 8. Termina on of Agency By agreement – If both agent and principal agree. By revoca on – Principal can revoke the agent’s authority before performance. By opera on of law: o Death or insanity of either party terminates agency. o Performance of the agreed act. o Expira on of the me period. Key Case Laws: 18. Kelner v Baxter LR 2 CP 174 A company not yet formed cannot ra fy contracts. 19. Metropolitan Asylum Board v Kingham & Sons 6 TLR 217 Ra ﬁca on must happen within a reasonable me. List of All Cases Men oned in the PDF 1. Loon Karan Sohan Lal v Firm John & Co. AIR All 308 2. Lakshiminarayan Ram Gopal & Sons v Hyderabad Government (1954) AIR SC 364 3. Chan Yin Tee v William Jacks & Co. (Malaya) Ltd. MLJ 290 4. KG Jaya Sdn Bhd v Pan Reliance Sdn Bhd 1 MLJ 233... (Full list continues above) Highlighted Important Facts and Discussions – Issues Rela ng to Sales of Goods in Construc on Contracts Key Topics: 1. Contractor's Duty Rela ng to Goods in Construc on 2. Quality of Goods in Construc on Contracts 3. Merchantable Quality and Acceptable Quality 4. Ownership of Goods and Materials 5. Remedies for End Users 1. Contractor's Duty Rela ng to Goods in Construc on Key obliga ons under common law: 1. The contractor must perform work in a good and workmanlike manner. 2. The contractor must supply good and proper materials. 3. The construc on must be reasonably ﬁt for human habita on. Express Exclusions: These implied du es can be excluded if explicitly stated in the contract. Key Case Laws: 1. Teh Khem On & Ors v Wu Development Sdn Bhd & Ors. (1995) 2 MLJ 663 FC o Facts: The developer delivered houses with severe defects (cracks and l ng). o Court Decision: Found that the contractor failed to ensure proper materials and construc on. o Legal Principle: Conﬁrmed the contractor’s duty to provide good and proper materials. 2. Hancock v B.W Brazier (Anerly) Ltd (1966) 2 All ER 901 o Facts: A builder used defec ve hardcore for founda ons, leading to structural failure. o Court Decision: The builder was liable for failing to supply materials ﬁt for construc on. o Legal Principle: Builders must ensure that materials used are suitable. 3. Al-Ambia Sdn Bhd v Foremost Prospect Sdn Bhd; ASG Marke ng Sdn Bhd (Third Party) 1 MLRH 1 HC o Facts: A subcontractor installed defec ve façade glass panels. o Court Decision: The subcontractor was liable, and liability extended to the third-party supplier. o Legal Principle: Suppliers can be held accountable for defec ve materials supplied to contractors. 2. Quality of Goods in Construc on Contracts Contractor’s Duty: Must ensure materials supplied are of good quality. Liability for Defects: If the materials cause failure, the contractor remains responsible. Issues with Subcontractors: Liability may extend to manufacturers or suppliers if defects are traceable. Key Case Laws: 4. Ong Siew Hwa v UMW Toyota Motor Sdn Bhd 5 MLRA 1 FC o Facts: A buyer ﬁled a claim against a car dealership for selling a defec ve vehicle under a hire purchase agreement. o Court Decision: The dealership was not liable as the contractual rela onship was with the ﬁnance company. o Legal Principle: Liability may be excluded if a new contract (e.g., hire purchase) supersedes the original sale. 5. Matang Plas k & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors. 1 MLRA 404 COA o Facts: A car dealership misrepresented the quality of a luxury car. o Court Decision: The buyer won the case, and the implied guarantee of merchantability applied. o Legal Principle: Representa ons about quality create binding obliga ons. 3. Merchantable Quality and Acceptable Quality Merchantable Quality (Sales of Goods Act 1957, S.16) o Goods must be ﬁt for the ordinary purpose. o Buyers must be able to use the goods without defects. Acceptable Quality (Consumer Protec on Act 1999, S.32) o Goods must be safe, durable, and ﬁt for their intended use. o Minor defects may not make the goods unmerchantable. Key Case Laws: 6. Rogers & Anor v Parish (Scarborough) Ltd & Another 1 QB 933 COA o Facts: A new car had mechanical defects, but was s ll drivable. o Court Decision: Merchantability is judged based on expecta ons of quality. 7. Lau Hee Teah v Hargill Engineering Sdn Bhd & Anor. 1 MLRA 233 FC o Facts: A machine was defec ve and unusable. o Court Decision: The machine was not merchantable because it was useless for its intended purpose. 8. Henry Kendall & Sons v William Lilico & Sons Ltd (1968) 2 All ER 444 o Court Decision: Goods must be saleable in a commercial sense, even if of lowest acceptable quality. 9. Australian Kni ng Mills Ltd v Grant (1933) 50 CLR 387 o Facts: A buyer suﬀered an allergic reac on from a defec ve woolen garment. o Legal Principle: Merchantability means the product must be ﬁt for general use. 4. Ownership of Goods and Materials Fixed Goods: Once materials are incorporated into a structure, they become the employer's property. Unﬁxed Goods: Un l installed, materials belong to the supplier or contractor. Key Case Laws: 10. Appleby v Myers (1867) LR 2 CP 651 o Facts: A supplier could not claim payment when machinery was destroyed before comple on. o Legal Principle: Ownership passes only a er comple on, unless agreed otherwise. 11. Reynolds v Ashby AC 406 o Facts: A tenant mortgaged ﬁxed machinery with a factory. o Legal Principle: Once materials are permanently ﬁxed, they become part of the property. 12. Dawber Williamson Rooﬁng Ltd v Humberside County Council (1979) 14 BLR 70 o Facts: A subcontractor tried to reclaim materials a er the main contractor became insolvent. o Legal Principle: Ownership remains with the supplier unless the goods were already incorporated. 5. Remedies for End Users End users (home buyers, tenants) may not have direct contractual rights against suppliers or contractors. Consumer Protec on Act 1999 provides some protec on to end users. Negligence claims under tort law may be available. Key Case Laws: 13. Wee Lian Construc on Sdn Bhd v Ingersoll-Ja Malaysia Sdn Bhd 1 MLRA 117 COA o Facts: A supplier delivered defec ve construc on materials. o Legal Principle: If the buyer fails to inspect at delivery, they may lose the right to reject the goods. 14. Perfect Kam Hung Sdn Bhd v Cheah Tai Hoe & Anor. 10 MLRH 676 HC o Facts: A buyer purchased a pper lorry based on a sample, but the delivered lorry did not match. o Court Decision: The lorry was not roadworthy, and the buyer successfully rejected it. 15. Puncak Niaga (M) Sdn Bhd v NZ Wheels Sdn Bhd 1 MLRA 179 o Facts: A Mercedes-Benz buyer faced mul ple breakdowns. o Court Decision: The buyer successfully claimed damages for breach of merchantable quality. List of All Cases Men oned in the PDF 1. Teh Khem On & Ors v Wu Development Sdn Bhd & Ors. (1995) 2 MLJ 663 FC 2. Hancock v B.W Brazier (Anerly) Ltd (1966) 2 All ER 901 3. Al-Ambia Sdn Bhd v Foremost Prospect Sdn Bhd; ASG Marke ng Sdn Bhd (Third Party) 1 MLRH 1 HC 4. Ong Siew Hwa v UMW Toyota Motor Sdn Bhd 5 MLRA 1 FC 5. Matang Plas k & Metal Work Industries Sdn Bhd & Ors v Daimler Chrysler Malaysia Sdn Bhd & Ors. 1 MLRA 404 COA... (Full list continues above) Highlighted Important Facts and Discussions from the PDF – Sales of Goods Law in Malaysia Key Topics: 1. Legal Framework 2. Types of Goods 3. Forma on of Contract of Sale 4. Terms of the Contract 5. Implied Terms 6. Transfer of Title and Risk 7. Excep ons to the Nemo Dat Rule 1. Legal Framework Main Legisla on Governing Sales of Goods in Malaysia: o Contracts Act 1950 o Sales of Goods Act 1957 (SOGA) o Consumer Protec on Act 1999 Historical Background: o Inﬂuenced by English Sale of Goods Act 1930 and Indian Sale of Goods Act 1930. o The SOGA applies to both Business-to-Business (B2B) and Business-to- Consumer (B2C) transac ons. 2. Types of Goods S.6 SOGA: o Exis ng Goods: Already in the seller's possession at contract forma on. o Future Goods: Goods that will come into existence later. S.2 SOGA: o Speciﬁc Goods: Goods speciﬁcally iden ﬁed at contract forma on. o Unascertained Goods: Iden ﬁed only a er the agreement. o Ascertained Goods: Unascertained goods become ascertained once iden ﬁed by the par es. 3. Forma on of Contract of Sale S.5(1) SOGA: o A contract of sale is formed by an oﬀer and acceptance at an agreed price. S.5(2) SOGA: o A contract of sale can be writen, verbal, or implied from the conduct of the par es. Key Case Laws: 1. Himatsing & Co. v PR Joitaram 2 MLJ 246 o Court ruled that in an ordinary commercial contract, whether me of delivery is essen al depends on evidence. 2. Harrington v Brown HCA 36 o Time of delivery was crucial in a sale of livestock. 4. Terms of the Contract Express Terms Condi ons vs. Warran es (S.12 SOGA) o Condi on (S.12(2)): A fundamental term; breach allows contract repudia on. o Warranty (S.12(3)): A minor term; breach only allows damages but not contract termina on. Key Case Laws: 3. Associated Metal Smelter v Tham Theow Toh 1 MLJ 171 o Seller failed to supply furnace according to the required speciﬁca on, amoun ng to a breach of warranty. 4. Tan Chong & Sons Motor Co Sdn Bhd v Alan McKnight 1 MLJ 220 o Failure to supply a car compliant with Australian Design Regula ons was a breach of warranty. 5. Implied Terms (S.14 – S.17 SOGA) Implied terms protect buyers by ensuring goods meet basic expecta ons. A. Implied Terms as to Time 5. Mohd Said Hasan Kamouna v Ferrari (M) Sdn Bhd 3 MLJ 640 o The court ruled that me was of the essence in the contract for Ferrari delivery. B. Implied Terms as to Title 6. Rowland v Dival 2 KB 500 o Buyer of a stolen car was en tled to a full refund as the seller had no tle to transfer. 7. Niblet Ltd v Confec oners’ Materials Co 3 KB 387 o A seller had no right to sell goods that infringed trademark rights. C. Implied Terms – Sale by Descrip on (S.15 SOGA) 8. Varley v Whipp 1 QB 513 o Seller described a second-hand reaping machine as new, which was false; buyer won. 9. Arcos Ltd v E A Ronaasen & Son AC 470 o If a contract speciﬁes certain dimensions, strict compliance is required. 10. Re Moore & Co. and Landauer & Co. 2 KB 519 Buyer rejected delivery as packaging did not match contract terms. D. Implied Terms – Fitness for Purpose (S.16(1)(a) SOGA) 11. Grant v Australian Kni ng Mills AC 85 Buyer suﬀered skin reac on from woolen underwear; seller liable. 12. Sunrise Bhd & Anor v M Agencies Sdn Bhd 3 MLJ 544 Seller failed to provide a func onal crane, breaching the implied ﬁtness for purpose. E. Implied Terms – Merchantable Quality (S.16(1)(b) SOGA) 13. David Jones v Willis 52 CLR 110 Buyer injured by defec ve shoes; court ruled they were unmerchantable. 14. Wilson v Ricket, Cockerall & Co. Ltd 1 All ER 868 Fuel contained an explosive device, making it unmerchantable. F. Implied Terms – Sale by Sample (S.17 SOGA) 15. Drummond v Van Ingen (1887) 12 App Cas 284 Cloth matched sample but was unsuitable for making garments, making it defec ve. 16. Lau Yaw Seng v Coopera ve Ceramica D’Imola 1 MLJ 393 Local case on sale by sample. 6. Transfer of Title and Risk Possession ≠ Ownership S.18 SOGA: Title does not transfer for unascertained goods un l they become ascertained. S.20 SOGA: Ownership transfers upon contract forma on for speciﬁc goods. Risk of loss follows ownership. Key Case Laws: 17. Tarling v Baxter (1827) 6 Barn. & Or. 360 Buyer bore the risk when a haystack was destroyed by ﬁre a er purchase. 18. Underwood v Burgh Castle Brick & Cement Syndicate 1 KB 343 Goods were not in a deliverable state, so tle did not pass. 7. Excep ons to the Nemo Dat Rule Nemo dat quod non habet – No one can transfer a beter tle than they possess. S.27 SOGA: Buyer cannot acquire a beter tle unless an excep on applies. Key Case Laws: 19. Bishopgate Motor Finance Corpora on Ltd v Transport Brakes Ltd 1 KB 322 Conﬂicted between protec on of property vs. protec on of commercial transac ons. 20. Lim Chui Lai v Zeno Ltd 30 MLJ 314 A contractor sold construc on materials without ownership; buyer had no valid tle. Excep ons to Nemo Dat: Estoppel (S.27) Sale by Mercan le Agent (S.2) Sale by Joint Owner (S.28) Sale Under a Voidable Title (S.29) Sale by a Seller in Possession A er Sale (S.30) Sale by a Buyer in Possession (S.30(2)) 21. Newtons Wembley Ltd v Williams 1 QB 560 Buyer in possession a er sale gave valid tle to a third party. List of All Cases Men oned in the PDF 1. Himatsing & Co. v PR Joitaram 2 MLJ 246 2. Harrington v Brown HCA 36 3. Associated Metal Smelter v Tham Theow Toh 1 MLJ 171 4. Tan Chong & Sons Motor Co Sdn Bhd v Alan McKnight 1 MLJ 220... (Full list continues above) Highlighted Important Facts and Discussions – Rylands v Fletcher Doctrine Key Topics: 1. Introduc on to Rylands v Fletcher 2. Facts and Court Rulings 3. Essen al Elements of Liability 4. Applica on and Expansion of Rylands v Fletcher 5. Defenses to Rylands v Fletcher 6. Important Case Laws 1. Introduc on to Rylands v Fletcher Originated from Nuisance Law o Ini ally developed as an extension of nuisance law, but later recognized as an independent strict liability tort. Strict Liability Concept o Liability without proving negligence or fault. o Even if precau ons are taken, liability s ll applies if the tort falls under this category. Mental State is Irrelevant o Unlike inten onal torts, the defendant’s mental state does not mater. Key Case Law: 1. Rylands v Fletcher LR 3 HL 330 o Facts:  Fletcher (Defendant) built a reservoir on his land to power his mill.  Water escaped through old mine sha s, ﬂooding Rylands’ coal mine.  The contractors were negligent, but Fletcher did not personally act negligently. o Held:  House of Lords held Fletcher liable despite no negligence.  Principle: A person who brings something likely to cause mischief onto his land must keep it at his own risk. 2. Facts and Court Rulings in Rylands v Fletcher Court Decision Court of Exchequer No cause of ac on (Fletcher not personally negligent). Exchequer Chamber Allowed Rylands' appeal – strict liability applies. House of Lords Aﬃrmed Exchequer Chamber’s decision – Fletcher liable. 3. Essen al Elements of Liability For Rylands v Fletcher strict liability to apply, the following must be proven: 1. Dangerous Thing Stored on Land The thing must be likely to cause damage if it escapes. Case Law: 2. Ang Hock Tai v Tan Sum Lee & Anor MLJ 135 o Facts: Fire spread from petrol storage on defendant’s land. o Held: Petrol was a dangerous thing, and liability applied. 2. Accumula on of the Thing on the Land The defendant must have brought and stored the thing. Excep ons: o If the thing was naturally occurring, liability does not apply. Case Laws: 3. Giles v Walker 24 QBD 656 o Facts: Thistle seeds spread to a neighbor’s land. o Held: No liability, as thistles were naturally occurring. 4. Miles v Forest Rock Granite Co 34 TLR 500  Facts: Rocks were blasted using explosives, and they injured the plain ﬀ.  Held: Although rocks were not accumulated, the explosives were, so liability applied. 3. Escape of the Thing The dangerous thing must escape from the defendant’s land. Case Laws: 5. Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd 1 MLJ 156 o Held: There must be proof of escape for Rylands v Fletcher to apply. 6. Pon ng v Noakes 2 QB 281  Facts: A horse ate poisonous leaves from a tree within the defendant’s land.  Held: No escape, so no liability. 4. Non-Natural Use of Land The use must be extraordinary and not ordinary land use. Case Laws: 7. Rickards v Lothian AC 263 o Held: A burst water pipe in a commercial building was ordinary use, so no liability. 8. Crowhurst v Amersham Burial Board 4 Ex D 5  Facts: Defendant planted poisonous trees, which extended to the plain ﬀ’s land.  Held: This was non-natural use, so liability applied. 9. Cambridge Water Co Ltd v Eastern Coun es Leather Plc 1 All ER 53  Facts: Chemical leakage from a leather factory polluted water supplies 1.3 miles away.  Held: Non-natural use applied, but foreseeability of damage was required. 5. Foreseeability of Damage New requirement a er Cambridge Water case. Case Laws: 10. Lembaga Kemajuan Tanah Persekutuan v TNB 2 MLJ 783 - Applied Cambridge Water’s foreseeability rule in Malaysia. 4. Applica on and Expansion of Rylands v Fletcher Applied in Malaysia for environmental and property damage. Courts balance social beneﬁts and poten al harm. 5. Defenses to Rylands v Fletcher Defense Descrip on Case Law Consent of If the plain ﬀ agreed to the Sheikh Amin bin Salleh v Chop Plain ﬀ presence of the dangerous thing. Hup Seng 2 MLJ 125 Common If the thing was stored for both Carstairs v Taylor LR 6 Ex Beneﬁt par es’ beneﬁt. 217 Third-Party If the escape was caused by a third Box v Jubb 4 Ex D 76 Act party outside the defendant’s control. Act of God If the escape was due to a natural Nichols v Marsland 2 Ex D disaster. 1 Plain ﬀ’s If the plain ﬀ caused or contributed Lee Kee v Gui See & Anor Own Fault to the damage. 1 MLJ 33 Statutory If a statute allows the ac vity, Hoon Wee Thim v Paciﬁc Tin Authority liability may not apply. Consolidated Corp 2 MLJ 240 List of All Cases Men oned 1. Rylands v Fletcher LR 3 HL 330 2. Ang Hock Tai v Tan Sum Lee & Anor MLJ 135 3. Giles v Walker 24 QBD 656 4. Miles v Forest Rock Granite Co 34 TLR 500 5. Weng Lok Mining Co Ltd v Hiap Lee Brickmakers Ltd 1 MLJ 156 6. Pon ng v Noakes 2 QB 281 7. Rickards v Lothian AC 263 8. Crowhurst v Amersham Burial Board 4 Ex D 5 9. Cambridge Water Co Ltd v Eastern Coun es Leather Plc 1 All ER 53 10. Lembaga Kemajuan Tanah Persekutuan v TNB 2 MLJ 783 11. Sheikh Amin bin Salleh v Chop Hup Seng 2 MLJ 125 12. Carstairs v Taylor LR 6 Ex 217 13. Box v Jubb 4 Ex D 76 14. Nichols v Marsland 2 Ex D 1 15. Lee Kee v Gui See & Anor 1 MLJ 33 16. Hoon Wee Thim v Paciﬁc Tin Consolidated Corp 2 MLJ 240 TORT 1. Professional Liability in Construc on Contracts – A Legal Perspec ve Key Facts: Construc on industry disasters o en arise from negligence by professionals. Malaysian courts recognize tor ous liability in construc on contracts for personal injury and property damage. Economic loss recovery has historically been restricted, but courts are now more open to these claims. Discussion: Types of Contracts in Construc on: o Employer & contract administrator (architect/engineer). o Employer & main contractor. o Subcontracts between main contractor and subcontractors. Professional Du es: o Deﬁned under standard contract forms (PAM, PWD). o Includes site inspec on, planning, supervision, and cer ﬁca on. Concurrent Liability: o Professionals can be liable in contract and tort. o Tort liability applies when contract provisions do not exclude duty of care. Court Approach: o Privity of contract is a challenge since mul ple par es are involved. o Courts increasingly recognize economic loss claims in tort cases. 2. Professional Negligence in the Construc on Field Key Facts: Professional negligence applies when a duty of care exists, is breached, and causes damage. Courts dis nguish between contractual and tor ous liability. Economic loss claims are restricted under common law but evolving in Malaysia. Page 49 of 66 Discussion: Key Elements of Professional Negligence: o Duty of care: Professionals must exercise reasonable skill and diligence. o Breach of duty: Failure to meet industry standards. o Causa on & damages: Loss must result directly from negligence. Landmark Cases: o Donoghue v Stevenson (1932) – Established duty of care. o Hedley Byrne v Heller (1964) – Liability for negligent misstatements. Challenges in Construc on Cases: o No direct contractual rela onship between some aﬀected par es. o Courts apply foreseeability and proximity tests to determine liability. Judicial Trends: o Courts have moved away from the Anns test (1978). o In Malaysia, the Murphy case (1991) ini ally rejected economic loss claims but later cases allowed them. 3. Recoverability of Economic Loss from Defec ve Buildings in Malaysia Key Facts: Economic loss claims for defec ve buildings have faced judicial inconsistency. Malaysian courts now assess claims based on fairness, reasonableness, and public interest. Two important cases: 1. Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon (2006) 2. Lim Teck Kong v Dr. Abdul Hamid Abdul Rashid (2006) Discussion: Judicial Approach in England: o Donoghue v Stevenson (1932) did not originally cover economic loss. o Anns (1978) allowed defec ve building claims. o Murphy (1991) reversed this, restric ng economic loss claims. Page 50 of 66 Malaysia’s Evolu on: o Early cases followed Murphy, denying economic loss claims. o Recent cases allow recovery based on fairness and defendant’s status. Court’s Balancing Act: o Considers plain ﬀ’s right to compensa on vs public policy limits. o No automa c rejec on of economic loss claims. 4. Role of Inten on in Fixa on of Tor ous Liability Key Facts: Tort law arises from wrongful acts causing harm or injury. Inten on is key in torts like trespass, defama on, and assault. Courts consider inten on, foreseeability, and wrongful conduct. Discussion: Elements of Tort Liability: o Wrongful Act – Breach of legal duty. o Legal Damage – Viola on of legal rights (injuria sine damno, damnum sine injuria). o Mo ve & Malice – Some mes relevant in defama on & conspiracy. Tort vs Criminal Law: o Torts focus on compensa on, criminal law on punishment. o Mens rea (criminal intent) is not always required in torts. Case Law & Theories: o Romford Ice Factory v Lister (1955) – Employer liability for employees' acts. o Ashby v White (1703) – Protec on of vo ng rights even without ﬁnancial loss. Court’s Role: o Courts dis nguish between inten onal and negligent torts. o Liability may exist even without bad mo ve, if legal duty is breached. Page 51 of 66 5. Liability Under Rylands v Fletcher in Malaysia Key Facts: Rylands v Fletcher (1868) established strict liability for dangerous property use. Malaysia recognized the rule under Sec on 3 of the Civil Law Act 1956. Recent cases ques on strict liability, favoring negligence-based tests. Discussion: Tradi onal Rule: o A person is liable if they bring dangerous things onto their land and it escapes, causing harm. Applica on in Malaysia: o Courts tradi onally followed English law, applying strict liability. o Cases involved ﬁre, water damage, landslides, and toxic leaks. Retreat of Strict Liability: o Cambridge Water Co v Eastern Coun es Leather (1994) – Added a foreseeability requirement. o Burnie Port Authority v General Jones (Australia, 1994) – Abolished strict liability, replacing it with negligence. o Steven Phoa Cheng Loon v Highland Proper es (2000, Malaysia) – Suggested merging Rylands liability into negligence law. Current Malaysian Posi on: o Courts are shi ing towards negligence-based liability, requiring proof of fault. o Foreseeability is now a key test in applying Rylands liability. Final Takeaways for Exams 1. Construc on Law & Negligence o Professionals have du es in both contract and tort. o Malaysian courts now recognize economic loss claims in certain cases. 2. Tor ous Liability & Inten on Page 52 of 66 o Wrongful acts, duty breaches, and causa on are key elements. o Courts balance intent, malice, and negligence when assigning liability. 3. Rylands v Fletcher in Malaysia o Originally strict liability → Now moving towards foreseeability & negligence. o Recent cases favor negligence law over automa c liability. SOGA 1. A Relook at the Malaysian Law of Sale of Goods Key Facts: The Sale of Goods Act 1957 (SOGA 1957) is the primary legisla on governing sales contracts in Malaysia. It is modeled a er the English Sale of Goods Act 1893 but has not undergone signiﬁcant moderniza on. The Consumer Protec on Act 1999 (CPA 1999) supplements SOGA 1957 by addressing consumer rights. Key issues in Malaysian sales law include exclusion clauses, implied warran es, and consumer protec on gaps. Discussion: Key Provisions of SOGA 1957: o Sec on 15: Sale by descrip on – Goods must match their descrip on. o Sec on 16: Implied condi ons on quality & ﬁtness – Sellers must ensure goods are ﬁt for their intended purpose. o Sec on 17: Sale by sample – Bulk goods must match the sample shown. Consumer Protec on Act 1999 (CPA 1999) Enhancements: o Introduced ‘acceptable quality’ standard, replacing ‘merchantable quality’ in SOGA 1957. o Provides addi onal remedies for defec ve goods. Current Challenges: o SOGA 1957 s ll favors caveat emptor (buyer beware). Page 53 of 66 o Exclusion clauses in contracts allow sellers to limit or remove liability, reducing buyer protec on. o Need for legal reform to modernize SOGA 1957 in line with consumer- friendly laws. 2. The Rise and Fall of Caveat Emptor in Malaysian Sale of Goods Contract Key Facts: Caveat emptor (buyer beware) is a doctrine placing responsibility on buyers to inspect goods before purchase. Historically, buyers had limited legal protec on in sales contracts unless the seller made explicit warran es. Consumer laws have gradually weakened caveat emptor, shi ing responsibility to sellers. Three main statutes govern sales contracts in Malaysia: 1. Contract Act 1950 2. Sale of Goods Act 1957 3. Consumer Protec on Act 1999 Discussion: Caveat Emptor in Historical Context: o Originated in 18th-19th century English common law. o Assumed buyers and sellers had equal bargaining power, which is no longer the case. Shi from Caveat Emptor to Caveat Venditor (Seller Beware): o Consumer Protec on Act 1999 imposes implied guarantees on sellers for:  Acceptable quality.  Fitness for purpose.  Compliance with descrip on/sample. o Modern consumer laws require sellers to disclose defects, reducing buyer liability. Current Legal Posi on in Malaysia: Page 54 of 66 o SOGA 1957 s ll reﬂects caveat emptor, but CPA 1999 overrides it in consumer transac ons. o Excep ons to Caveat Emptor:  Sec on 16(1) SOGA 1957 – Implied warranty for quality & ﬁtness applies if the buyer relies on the seller’s exper se.  Consumer Protec on Act 1999 – Provides greater protec on for individual buyers but does not apply to business-to-business (B2B) contracts. Need for Reform: o Exclusion clauses in SOGA 1957 allow sellers to escape liability. o The UK has reformed its Sale of Goods Act, but Malaysia s ll follows the outdated 1893 model. o Stronger consumer rights laws are needed to limit unfair contractual terms. Final Takeaways for Exams 1. Malaysian Sales Law Needs Moderniza on o The Sale of Goods Act 1957 is outdated and s ll reﬂects caveat emptor. o Consumer Protec on Act 1999 improves buyer rights but does not fully override SOGA 1957. 2. Caveat Emptor vs Consumer Rights o Tradi onal rule: Buyer is responsible for inspec ng goods. o Modern rule: Sellers must ensure quality, ﬁtness, and disclosure of defects. 3. Current Legal Gaps o SOGA 1957 allows sellers to exclude liability via contract terms. o Business buyers do not beneﬁt from CPA 1999 protec ons. o Legal reform is needed to align Malaysian law with UK and global best prac ces. Page 55 of 66 ADDITIONAL READING 1. Enforcement of Liquidated Damages – A Legal Conundrum Resolved Key Facts: Liquidated damages (LD) are predetermined sums agreed in contracts to avoid complex li ga on over actual losses. Sec on 75 of the Contracts Act 1950 (CA 1950) governs LD enforcement in Malaysia. Courts dis nguish between liquidated damages and penalty clauses based on fairness and reasonableness. The Dunlop Pneuma c Tyre Co Ltd v New Garage & Motor Co Ltd case set out principles to determine if a clause is a penalty. Discussion: Key Legal Tests for LD vs Penalty: o If the sum is extravagant and unconscionable, it is likely a penalty. o If the breach is non-payment of money and the sum is greater than what was due, it is a penalty. o If a single lump sum applies to mul ple breaches of varying severity, it is a penalty. Malaysian Posi on: o Courts have discre on to award damages not exceeding the s pulated amount. o A penalty clause will not be enforceable beyond reasonable compensa on. Prac cal Implica on: o Par es should ensure LD clauses reﬂect a genuine pre-es mate of loss to avoid classiﬁca on as a penalty. 2. Remedies for Speciﬁc Performance for Land Contracts Key Facts: Speciﬁc Performance (SP) is an equitable remedy compelling a party to fulﬁll contractual obliga ons. SP is preferred for land contracts as land is considered unique and damages may be inadequate compensa on. Page 56 of 66 Governing Law: Speciﬁc Relief Act 1950 (SRA 1950), Sec ons 11-29. Courts have discre on in gran ng SP based on equity principles. Discussion: When SP is Granted: o If monetary compensa on is inadequate (Sec on 11 SRA 1950). o If the contract is fair and par es acted in good faith. When SP is Denied: o If performance is impossible or requires constant supervision. o If it causes undue hardship to the defendant. Key Case Laws: o Bank of Tokyo (1991) – SP was upheld for real estate deals. o Syed Azman (1992) – SP was granted for delivery of strata tle. Conclusion: Courts prefer SP in land contracts, but par es must meet equity-based requirements. 3. Speciﬁc Remedies and Money Awards in Contract Law Key Facts: Malaysian contract law follows the Contracts Act 1950 (CA 1950) and Speciﬁc Relief Act 1950 (SRA 1950). Money awards (damages) are the default remedy, while SP is an excep on. Liquidated damages provisions are subject to judicial scru ny to prevent penal es. Discussion: Judicial Trends: o Courts prefer compensa on (damages) over enforcement (SP) unless damages are inadequate. o Limited use of puni ve damages in Malaysia. Inﬂuence of English and Indian Law: o CA 1950 is based on Indian Contract Act 1872, which in turn codiﬁes English common law principles. Page 57 of 66 Modern Developments: o Courts some mes grant SP over money awards to protect creditors' interests. o ‘Cost of cure’ damages are some mes available to ensure contracts are performed. 4. The Legality of Doctrine of Frustra on in the Realm of COVID-19 Pandemic Key Facts: The doctrine of frustra on terminates contracts when an unforeseen event makes performance impossible. Sec on 57(2) of CA 1950 codiﬁes frustra on but has a high threshold for applica on. COVID-19 and movement restric ons (MCOs) raised frustra on claims in Malaysia. Discussion: Frustra on vs Force Majeure: o Force majeure clauses allow contractual relief without court interven on. o Frustra on applies only if no force majeure clause exists and the event makes performance impossible. Judicial Approach: o Courts assess if contractual purpose is completely destroyed (e.g., Krell v Henry ). o High burden of proof – ﬁnancial hardship alone is not enough to frustrate a contract. Reform Sugges ons: o Malaysian law should adopt Principles of European Contract Law & UNIDROIT principles to allow hardship clauses. 5. A Review on Irrevocable Power of Atorney: Malaysia and UK Compared Key Facts: Power of Atorney (POA) Act 1949 (Malaysia) allows POAs to be irrevocable if given for valuable considera on. Page 58 of 66 UK POA Act 1971 provides similar protec ons, but UK law has modernized rules. Irrevocable POAs protect the donee’s interest, ensuring it is not revoked by the donor’s death or incapacity. Discussion: Key Diﬀerences Between Malaysia & UK: o UK allows las ng POAs for personal and business maters. o Malaysia’s POA laws are outdated and lack modern consumer protec ons. Prac cal Issues: o Courts strictly interpret POAs – any ambiguity can void the POA. o Donees must ensu

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