CLASSIFICATION OF LAWS
• Public Law - law which governs the relationship between individuals and the State (govt). E.g.
Criminal Law, Constitutional law
• Private Law - Law that governs relationship between individuals. The State is not involved. E.g.
Contract law, Tort law.
International law
• Public international law - the law that prevails between States
• Private international law consists of the rules that guide a judge when the laws of more than
one country affect a case (conflict of laws)
MALAYSIA COURT STRUCTURE
SOURCES OF LAW
Written Law
• Federal Constitution
• State Constitution
• Legislations – Acts of Parliament
• Subsidiary / delegated legislation
Unwritten Law
• Principles of English Law
• Judicial precedents - stare decisis
• Customs
STARE DECISIS
• To stand by the cases already decided. Judges are expected to rely on similar past court decisions
as the basis for deciding new ones.
• The earlier and later cases should be similar.
• Judges in the later case only follow the ratio decidendi (legal principle) of the earlier case. Not the
obiter dictum.
• Judges of a lower court has to follow cases (ratio decidendi) of higher court. Not vice versa.
• Ratio decidendi
• Obiter dictum
ALTERNATIVE DISPUTE RESOLUTION
• Mediation - There is no higher authority scrutinizing right or wrong but an impartial third party
(Mediator) assists disputing parties in resolving conflict through communication and negotiation – to
reach an mutually acceptable solution.
• Arbitration - A formal dispute resolution process which involves the hearing of a dispute by an
independent third party (an arbitrator). At the end of the hearing the arbitrator will make an award final and binding on the parties
• Tribunals – Similar to court proceeding, normally to adjudicate upon disputes in a specific area of
law – like consumers claims
CONTRACT LAW
• S2(h) Contracts Act 1950: contract is an agreement enforceable by law
Elements of legally enforceable contract :
• Offer and Acceptance
• Consideration
• Certainty
• Intention to Create Legal Relations
• Legal Capacity
• Legality
• Free Consent
OFFER / PROPOSAL
• Definition – section 2(a), Contracts Act 1950
NOT an Invitation to treat – display of goods (Pharmaceutical Society of Great Britain v Boots
Cash Chemist Ltd)
Advertisements (Partridge v Crittenden, Carlill v Carbolic Smoke Ball
Co Ltd)
• The offeror must intend to be bound by the offer
• Request and supply of Information (Harvey v Facey)
ACCEPTANCE
• Definition – section 2(b), Contracts Act 1950
• Offer + Acceptance = Promise (similar to Agreement)
• Acceptance of that proposal must be absolute and unqualified – Section 7(a)
• Counter proposal is a rejection of the original proposal - Hyde v Wrench [1840]
• Acceptance is only effective when it has been communicated.
• Silence is not a mode of acceptance - Felthouse v Bindley
CONTRACT IS A LEGALLY ENFORCEABLE AGREEMENT
• S.10(1) All agreements are contracts if they are made by the free consent of parties competent to
contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared
to be void.
• S.11 Every person is competent to contract who is of the age of majority according to the law to
which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to
which he is subject.
CONSIDERATION
• Section 2(d), Contracts Act 1960 – definition
• Future, present and past consideration
• Section 26, Contracts Act 1960 - general rule: an agreement without consideration is void.
• Exceptions: (a) On an account of natural love and affection but is in writing and registered.
(b) Past consideration.
(c) Agreement to pay statute-barred debt
INTENTION TO CREATE LEGAL RELATIONS
• “To create a contract there must be a common intention of the parties to enter into legal
obligations, mutually communicated expressly or impliedly” - Atkin LJ in Rose & Frank Co v JR
Crompton & Bros Ltd [1923] 2 KB 261 at 293
• Domestic agreements – usually no intention (Balfour v Balfour [1919])
• This presumption can be rebutted by circumstances of the case (Merritt v Merritt [1970])
• In business or commercial agreements, there is a presumption that the parties did intend to create
legal obligations - Edwards v Skyways [1964] 1 WLR
EXCLUSION CLAUSE
Signed document - L’Estrange v Graucob [1934] 2 KB 394
Unsigned Documents
• Sufficient/ reasonable notice- Parker v Sth. Eastern Railway Co (1877)
• Given before or at the time contract is formed - Olley v Marlborough Court [1949]
• Previous dealings - Hollier v Rambler Motors Ltd [1972]
• Contra proferentum rule - Clear and Wide
REMEDIES FOR BREACH OF CONTRACT
• Damages – normal and special loss - Hadley v Baxendale (1854), S.74(1) of Contracts Act 1950.
• Mitigation - the duty of the respondent to take reasonable steps to mitigate the damage KebatasanTimber Extraction Co v Chong Fah Shing
• Where damages would not be an adequate remedy
•
Specific Performance
•
Injunction
TORT
• Tort law provides recourse/remedy for wrong done to the Plaintiff or the Plaintiff’s property
• Common law, monetary damages
Intentional tort
•
Assault
•
Battery
•
Trespass to land
•
False Imprisonment
•
Defamation
• Unintentional tort: Negligence
NEGLIGENCE
• The breach of a legal duty to take care which results in damage, undesired by the defendant, to the
plaintiff.
• Unintentional wrongful act
• Ingredients of negligence are: • Duty of care • Breach of that duty • Consequential damage
A. DUTY OF CARE
• The ‘neighbour’ principle - Donoghue v Stevenson
• “You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour.”
• Neighbours = Persons whom I can reasonably foresee will be affected by my
acts/omissions.
B. BREACH OF DUTY
• The test for deciding whether there has been a breach of duty – a “reasonable man” test Blyth v Birmingham Waterworks Co.
• If a defendant falls below the standard of care which a prudent and reasonable man would
take , then there is a breach of duty.
• Magnitude of the risk – Bolton v Stone
• Seriousness of the injury that is risked - Paris v Stepney Borough Council
• Practicability of precaution - Latimer v AEC Ltd B.
C. CONSEQUENTIAL DAMAGE
• 2 elements to consequential damages:
• Causation – ‘But for’ test
• The plaintiff’s damage must have been caused by the defendant’s breach of duty
• Remoteness -Would a reasonable man have foreseen them or not ? • The Wagon Mound
case
D. DEFENCES
• Contributory Negligence
• Plaintiff’s negligence contributed to own injury
• Partial defence – reduce liability
• Consent
• Plaintiff’s full assumption of risk
• Full Defence – avoid total liability
BUSINESS STRUCTURE
Sole Trader
• Owner = Business
• Entitled to all profits, have full control but unlimited liability
Partnership
• S3(1) of Partnership Act 1961: partnership is the relation which subsists between persons carrying
on business in common with a view of profit
• Can be formed without a written agreement
• Advantages:
flexible, simple, informal, shared liability, pool capital and experience
• Disadvantages:
Unlimited liability, shared profits, shared control, lack of permanence
COMPANY
• A company is treated as a legal person - S20 Companies Act 2016
• Salomon v Salomon Co Ltd – a company is separated from its members. Members have limited
liability.
• Companies are liable for their own debts, can sue and be sued in their own names, can hold
properties.
• Perpetual succession.
• ‘Corporate Veil’ - The court might pierce or lift the corporate veil when necessary
IRAC 1
• Issues
• E.g.: Did Tom have a valid contract with Jerry? Has Jerry accepted the offer? Is the agreement
between Tom and Jerry legally binding?
• Rule – case laws and legislations
• E.g.: According to s2(a) of the Contracts Act… As decided in the case of A v B, the general rule is
that acceptance must be….
• Application
• E.g.: In this case, Tom was told by Jerry that…, which is vert similar to the case of A v B…
• Conclusion
• E.g.: Therefore, no valid contract was formed between Tom and Jerry.
IRAC 2
• Issues
• E.g.: Is there a negligence by Jojo? Did Jojo owe a duty of care to Blossom? Did he breach the duty?
Is the injury suffered by Blossom caused by the act of Jojo? Is there any defence?
• Rule
• E.g.: In order to prove negligence… In the case of Blyth v Birmingham Waterworks Co, the court has
established a test called…
• Application
• E.g.: In this case, Jojo owed a duty of care because it is reasonably foreseeable that…. Further, Jojo
has breached his duty of care because…
• Conclusion
• E.g.: Therefore, Blossom can bring an action against Jojo for negligence….However, Jojo could argue
that Blossom…