Q.
(a) Explain the meaning of “binding judicial precedent” in the context of unwritten law in Malaysia. (4 marks)
(b) Answer the following questions with relevant cases and provisions of the Contracts Act, 1950:
(i) Define “offer” and “acceptance”; (3 marks)
(ii) Explain the validity of "past consideration" in a contract. (3 marks)
(c) The Contracts Act, 1950, defines a voidable contract as “an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other party or others”. In relation to this, explain the following factors which render a contract voidable:
(i) Coercion;
(ii) Undue Influence. (4 marks)
(d) N/A Sale of Goods Act, 1957
Judicial precedent are asked in:
MIA QE 2008/3 Q1 (c) State briefly the advantages of the doctrine of binding judicial precedent.
MIA QE 2009/3 Q1 (c) Explain how judicial decisions form part of the law of Malaysia.
MIA QE 2014/3 Q1 (a) Explain the meaning of “binding judicial precedent” in the context of unwritten law in Malaysia.
MIA QE 2012/9 Q1 (a) ‘Judicial Precedent’ is one of the sources of “unwritten laws” in Malaysia.
MIA QE 2014/9 Q1 (a) What is meant by ‘judicial precedent’?
Precedence - is it always followed? Advantages and Disadvantages.
2012 D02 Q2 briefly explain Judicial precedent.
Briefly explain the challenges of Stare Decisis in Malaysian Courts.
What is meant by "Stare Decisis"?
MIA model answer:
Judicial Precedent
It is the process of adjudication whereby after argument before a judge, a decision in a dispute is given. It forms one of the most important means by which the law is created in Malaysia. In reaching his conclusion, the judge will formulate and apply a legal principle. In accordance with certain rules, this principle may form a guide (binding or persuasive) for future references.
The decision inter parte is of interest and importance to the parties to the litigation and the judge will give reasons for reaching this decision and in these reasons lies the ratio decidendi (the reason for deciding) or the legal principle behind the decision. The ratio decidendi may bind others in similar disputes in the future.
A decision of a superior court (such as the Supreme Court) binds the lower courts (eg; The High
Courts, Sessions Courts and Magistrates‟ Courts). Therefore binding precedents would depend on a court‟s position in the hierarchy of the courts. Persuasive precedents are those which are not binding authorities while binding precedents shall remain so until it is reversed on appeal or overruled.
(b)(i) Define Offer and Acceptance
Similar question was asked in:
MIA QE 2009/9 Q1 (a)(i) explain the conditions of accepting an offer.
MIA QE 2010/3 Q1 (a)(i) Explain the meaning of ‘proposal’ and ‘acceptance’.
MIA QE 2012/9 Q1 (b)(i) Explain the meaning of the terms ‘proposal’ and ‘acceptance’.
MIA QE 2014/3 Q1 (b)(i) Define “offer” and “acceptance”.
MIA QE 2015/3 Q1 (b)(i) What is the meaning of the terms ‘offer’ and ‘acceptance’?
MIA model answer:
Proposal: Section 2 (a) of the Contracts Act, 1950 states that when one person signifies to another his willingness to do or abstain from doing anything, with a view to attaining the assent of that other to the act or abstinence, he is said to make a proposal.
Section 2(c) of the Contracts Act, 1950 calls the person making the proposal a „promisor‟.
Section 4(1) of the Contracts Act, 1950 states that, a communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.
Acceptance: Section 2 (b) of the Contracts Act, 1950 provides that when the person to whom the proposal is made signifies his assent thereto, the proposal is said to have been accepted. A proposal when accepted, becomes a promise.
Section 2(c) of the Contracts Act, 1950 calls the person accepting the proposal a „promisee‟.
Section 7 of the Contracts Act, 1950 provides that, for a proposal to be converted into a promise, the acceptance of the proposal must be unqualified and absolute.
Section 9 of the Contracts Act, 1950 states that, so far as any acceptance of any proposal is made in words, the acceptance is said to be expressed. If the acceptance is made other than in words, the acceptance is said to be implied.
(ii) Validity of 'past consideration'
Refer earlier post Past Consideration is Good Consideration here.
or is a promise to compensate for something done
S.26 (b) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable
to do;
For example, Ali was drowning in the river, Allan passed by and dived in to save Ali. Ali wanted to give Allan RM2,000 for saving his life. This is a consideration for past action. In this case, it is a valid contract.
MIA model answer:
Past consideration arises where the defendant‟s promise to the plaintiff was made after the performance of an act or omission that was requested by the defendant.
As a general rule, English law does not treat past consideration as good consideration (Re Mc Ardle).
In Malaysia, past consideration is good consideration because of the words “has done or abstained from doing” in the definition of consideration in section 2(d).
Past consideration is good consideration was illustrated in Kepong Prospecting Ltd. v Schmidt.
(c) Voidable contract as “an agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other party or others”
(i) Coercion
MIA QE 2012/3 Q1 (b)(i) Coercion
MIA QE 2014/3 Q1 (c)(i) which render a contract voidable
What constitute a voidable contract?
Briefly explain 'coercion'
LPPEH 2012 D02 Q2
(ii) Undue Influence
MIA QE 2014/3 Q1 (c)(ii) undue influence
MIA QE 2012/3 Q1 (b)(ii) Undue influence
What constitute a voidable contract?
Explain "Undue Influence" as per Contract Act, 1950
Bad Contracts
2013 D02 Q3 inducement and undue influence
Ref:
mia.org.my
Earlier posts