Law
Montesquieu quote that “absolute power corrupt absolutely”
絕對權力絕對腐敗 kuasa mutlak rasuah benar-benar
Explain the separation of power in Malaysia legal system. (3m)
The federal government adopts the principle of
separation of power under Article 127 of the Federal Constitution and has 3
branches;
executive, legislature and judiciary. 行政，立法机关和司法机构。eksekutif, perundangan dan kehakiman.
executive, legislature and judiciary. 行政，立法机关和司法机构。eksekutif, perundangan dan kehakiman.
In the Malaysian context, our governing bodies are:
(a) Executive
(Government) – Power to put laws into actions.
(b) Legislature (Parliament) – Is the power to make and change of law.
(b) Legislature (Parliament) – Is the power to make and change of law.
(c) Judiciary – Is the power
to make judgments on law.
They are each intended to have very specific powers, that of enforcing the law, making the law and interpreting and applying the law. Each organ is in some manner answerable to the others.
2.
Member of the parliament elected by the people thru democratic action.
State three roles under executive body 執行機構有三個角色 tiga peranan di bawah badan eksekutif (3m)
State three roles under executive body 執行機構有三個角色 tiga peranan di bawah badan eksekutif (3m)
- Menguatkuasakan undang-undang yang dibuat atau digubal oleh badan perundangan
- Mentadbir sistem kerajaan
- Pembentukan dan pelaksanaan dasar-dasar kerajaan
- Isu-isu peraturan-peraturan bagi tadbir urus jabatan-jabatan kerajaan
- Ia mempunyai kuasa untuk menangguhkan dan membubarkan badan perundangan
- Penguatkuasa undang-undang yang dibuat atau digubal oleh badan perundangan
- Tugas mesti dilakukan mengikut kuasa yang diberikan oleh undang-undang supaya ia tidak akan menjadi tidak sah dan diadakan ultra vires / kesan
3. Contract
without consideration is consider as void.
Explain what is executory consideration and past consideration. (4m)
Kontrak tanpa balasan adalah dianggap sebagai tidak sah.
Terangkan apakah pertimbangan executory dan pertimbangan lalu.
Explain what is executory consideration and past consideration. (4m)
Kontrak tanpa balasan adalah dianggap sebagai tidak sah.
Terangkan apakah pertimbangan executory dan pertimbangan lalu.
Executory
Consideration:
when one promise is made in return for another
a promise in return of promise.
consideration where parties exchange of promise to perform act in the future
Eg: A agrees to sell his car for RM20,000 to B.
B agrees to pay the sum of RM20,000 in consideration for A’s promise to sell the car
A promise to sell the car is the consideration for B’s promise to pay the RM20,000.
These are lawful considerations.
when one promise is made in return for another
a promise in return of promise.
consideration where parties exchange of promise to perform act in the future
Eg: A agrees to sell his car for RM20,000 to B.
B agrees to pay the sum of RM20,000 in consideration for A’s promise to sell the car
A promise to sell the car is the consideration for B’s promise to pay the RM20,000.
These are lawful considerations.
Past
Consideration: Where one party has voluntarily performed an
act and the other party later promises to reward for the voluntary act.
Voluntary act is done first and the promise is made later.
Eg: If A finds and return B’s pen and in gratitude, B promise to pay A RM200 the promise is made in return for a prior act.
Under English Law, the general rule that is past consideration is insufficient to support a contract.
Eg: If A finds and return B’s pen and in gratitude, B promise to pay A RM200 the promise is made in return for a prior act.
Under English Law, the general rule that is past consideration is insufficient to support a contract.
4. Contract
enter by minor can be consider as void.
Explain two exceptions that allow minor to enter into a contract.
(Explain by section) (4m)
Explain two exceptions that allow minor to enter into a contract.
(Explain by section) (4m)
(a) Contracts for necessity
* Sec 69 of Contract Act 1950
“if a person, incapable of entering into a contract, or anyone who, he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person”.
- Under contract of necessities a minor can enter valid contract if only it is the basic need of the minor and suitable of his situation in life or lifestyle.
(b) Contracts for scholarship
* Section 4 (a) Contracts (Amendment) Act 1976
“ The scholar entering into such agreement is not of the age of majority”
- Between a minor and the government or non-government organizations.
- Eg: Loan, sponsorship for the purpose of learning by government or educational institution.
(c) Contracts of Marriage
* Sec 4 (a) Age Majority Act 1971
“Nothing in this Act shall affect the capacity of any person to act in the following matters, namely marriage, divorce, dower and adoption”.
- Similarly, a minor may enter into a contract of marriage or divorcement.
- Contracts of promise to marry entered into by minor are valid.
- A minor can sue or be sued in case of breach of promise to marry.
(d) Contracts of Insurance
* Insurance Act 1966
In Malaysia a minor can enter into insurance contract with the insurance company under the Insurance Act 1963 (Revised 1972). However, if the minor is below 16 years old, he/ she can only make insurance contract after taking written consent from his/ her parents or guardians.
* Sec 69 of Contract Act 1950
“if a person, incapable of entering into a contract, or anyone who, he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person”.
- Under contract of necessities a minor can enter valid contract if only it is the basic need of the minor and suitable of his situation in life or lifestyle.
(b) Contracts for scholarship
* Section 4 (a) Contracts (Amendment) Act 1976
“ The scholar entering into such agreement is not of the age of majority”
- Between a minor and the government or non-government organizations.
- Eg: Loan, sponsorship for the purpose of learning by government or educational institution.
(c) Contracts of Marriage
* Sec 4 (a) Age Majority Act 1971
“Nothing in this Act shall affect the capacity of any person to act in the following matters, namely marriage, divorce, dower and adoption”.
- Similarly, a minor may enter into a contract of marriage or divorcement.
- Contracts of promise to marry entered into by minor are valid.
- A minor can sue or be sued in case of breach of promise to marry.
(d) Contracts of Insurance
* Insurance Act 1966
In Malaysia a minor can enter into insurance contract with the insurance company under the Insurance Act 1963 (Revised 1972). However, if the minor is below 16 years old, he/ she can only make insurance contract after taking written consent from his/ her parents or guardians.
(e) Contracts of Employment
* Sec 13 of Children and Young Person (Employment) Act 1966
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5.
Agency must act for the best interest of the principal.
Explain the statutory duties that stated under
Section 167 and Section 171 of Contract Act 1950. (6m)
* Sec 167
- “Agent’s duty to communicate with principal”
- Agent is under duty in cases of difficulty to use all reasonable diligence in communicating with his principal and in seeking the principal’s instruction.
- Eg: Cases of emergencies, agent must use his discretion to the best interest of the principal.
*Sec 171
- “Agent’s duty to pay sums received on behalf of principal”.
- Agent is bound to pay the principal all moneys received on account of the principal.
- Agent may however, before giving all the monies deduct the following:-
a) Advances paid by the agent first, on behalf of the principal
b) Agent’s commissions
c) Agent’s remuneration (salary)
Explain the statutory duties that stated under
Section 167 and Section 171 of Contract Act 1950. (6m)
* Sec 167
- “Agent’s duty to communicate with principal”
- Agent is under duty in cases of difficulty to use all reasonable diligence in communicating with his principal and in seeking the principal’s instruction.
- Eg: Cases of emergencies, agent must use his discretion to the best interest of the principal.
*Sec 171
- “Agent’s duty to pay sums received on behalf of principal”.
- Agent is bound to pay the principal all moneys received on account of the principal.
- Agent may however, before giving all the monies deduct the following:-
a) Advances paid by the agent first, on behalf of the principal
b) Agent’s commissions
c) Agent’s remuneration (salary)
6. “Delegatus Non Protes” that the agent cannot delegate their power
to perform on behalf on themselves. Analyses the exception that allow
delegation of power to be conducted. (6m)
"perwakilan tidak membenarkan" ejen itu tidak boleh menurunkan kuasa mereka kepada orang lain bagi tujuan untuk melaksanakan bagi pihak mereka sendiri. Menganalisis pengecualian yang membolehkan penurunan kuasa akan dijalankan.
An agent may delegate his authority to another in the following
circumstances:
a) Where the principal approves the delegation of authority
a) Where the principal approves the delegation of authority
b) Where it is
presumed from the conduct of the parties that the agent would have power to
delegate his authority.
c) Where custom of
the trade or business permits delegation.
d) In case of necessity or unforeseen emergency, for
example, illness of agent.
https://sol.du.ac.in/mod/book/view.php?id=644&chapterid=381
https://sol.du.ac.in/mod/book/view.php?id=644&chapterid=381
A
‘sub-agent” is a person employed by and acting under the control of the
original agent in the business of agency (Sec. 191). In the following
cases an agent can appoint a sub-agent unless he is expressly forbidden
to do so:-
(i) When the ordinary custom of trade permits the appointment of a sub-agent.
(ii) When the nature of the agency business requires the appointment to a sub-agent.
(iii)
When the act to be done is purely ministerial and involves no exercise
of discretion or confidence, e.g. routine clerks and assistants.
(iv)
When the principal agrees to the appointment of such a sub-agent
expressly or implidly.
(v) When some unforeseen emergency has arisen.
Substituted agent
Where
an agent holding an express or implied authority to name another person
to act in the business of the agency, has accordignly, named another
person such person is not a sub-agent but a substituted agent. The
substituted agent shall be taken as the agent of principal for such part
of the work as is entrusted to him (Sec. 194).
Example: A
directs B, his solititor, to sell his estate by auction, and to employ
an auctioneer for the purpose. B names C, an auctioneer to conduct the
sale. C is not a sub-agent, but is A’s agent for the conduct of the
sale.
In
selecting substituted agent for his principal an agent is bound to
exercise the same amount of discretion as a man of ordinary prudence
would exercise in his own case, and if he does this, he is not
responsible to the principal for acts or negligence of the substituted
agent.
Example: A
instructs B, a merchant, to buy a ship for him. B employed a ship
surveyor of good reputation to choose a ship for A. The surveyor makes
the choice negligency and the ship turns to be unseaworthy and is lost. B
is not, but the surveyor is responsible to A.
7. Tortious
action might be quite similar to criminal.
Explain four differences between criminal law and law of tort. (6m)
Explain four differences between criminal law and law of tort. (6m)
Criminal
Law
|
Law Of
Tort
|
1. wrongful act that
the state or federal government has identified as a crime. (crime committed)
|
1. wrongful act that
injures or interferes with another's person or property. (civil wrong)
|
2. criminal proceeding
(criminal case)
|
2. civil court
proceeding (civil case)
|
3. The victim is the
person who has been hurt
|
3. The accused is the
"defendant" and the victim is a "plaintiff."
|
4. The charges are
brought by the government. If the defendant loses, the defendant must serve a
sentence. A fine is paid to the government and there is possible restitution
to the victim.
the guilty party will either have
to pay a fine or he/she will be imprisoned for a particular period.
|
4. The charges are
brought by the plaintiff.
If the defendant loses, the defendant has to pay
damages to the plaintiff.
guilty party will have to pay
compensation.
|
immediate purpose
|
punishment of criminal
|
compensation of victim
|
balance of defendant's wrong and victim's injury
|
emphasis on df's moral wrong, not victim's injury
|
emphasis on victim's injury, not df's moral wrong
|
theory of offense
|
offense to all society; public interest
|
only victim injured; private interest only
|
8. Neighbor principle establish in the case of Donoghue v Stevenson .
Explain what is mean by “neighbor” that describe by Lord Atkin.(8m)
- Famous cases of Donoghue vs. Stevenson (1932)
- Snail in the bottle case
- Established when duty of case might arise.
- says that a person should take reasonab
le care to avoid acts or omissions that s/he can reasonably foresee as likely to cause injury to the neighbor. Neighbor includes all persons who are so closely and directly affected by the act that the actor should reasonably think of them when engaging in the act or omission in question.
- In the orginal case Donoghue
drank a bottle of Ginger Beer manufactured by Stevenson. Having drunk some of
the contents of the bottle, she claimed that the remnants of a decomposing
snail plopped out into her glass. Donoghue then contracted gastroenteritis and
sued Stevenson.
- As a result of this case, the legal principle of
Duty of Care was formed. All manufacturers of products bear responsibility for
any damage that their products cause, even if the the sufferer did not buy the
product themselves (e.g. it might have been a present). Furthermore this
principle extends not only to manufactured products but also services. Sport
and recreation organisations provide services and must ensure that such
services are safe for all the participants.
This case was a decision of the House of
Lords that established a modern concept of negligence by setting out general
principles whereby one person would owe another person a duty of care. Per Lord
Atkin has used the ‘neighbour principle’ to solve the case.
Neighbour principle is a test to determine the existence of a duty of care whereby if a person does not take the usual degree of precaution, another person of his property maybe injured or damaged. Duty of care is the first element of negligence. For example, a negligence security guard on a certain residential area would resulted in danger to the people that live in that area. In this case, the security guard has the duty of care towards the residents at that area.
Neighbour is the
persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts. For example, the restaurant owners have the duty
of care to make sure that the restaurant is always clean especially in the
kitchen as it can be foresee that their negligence in their services may effect
or causing injuries to the customers (neighbour).
Referring to the case of Donoghue v Stevenson, the
ginger beer manufacturer has a duty of care towards the customer that drink it.
The manufacturer has to ensure that their product is clean and safe to be
consumed as the decomposed snail had been found in the ginger beer drink by the
customer that caused him suffered severely ill as consequences.
SECTION B
1. Once a contract of agency is formed, the
contracting parties owe certain
duties towards each other. In the light of the relevant provisions in the
Contracts Act 1950 and decided cases, discuss the duties of a principal
towards the agent. (10m)
*Sec 175
- Agent to be indemnified against consequences of lawful acts
- Right of agent to be indemnified by principal against consequences of all lawful acts done by agent in exercise of authority conferred on the agent.
duties towards each other. In the light of the relevant provisions in the
Contracts Act 1950 and decided cases, discuss the duties of a principal
towards the agent. (10m)
*Sec 175
- Agent to be indemnified against consequences of lawful acts
- Right of agent to be indemnified by principal against consequences of all lawful acts done by agent in exercise of authority conferred on the agent.
*Sec 176
- Agent to be indemnifies against consequences of acts done in good faith
- Right of agent to be indemnified by principal for consequences of acts done by agents in good faith for which the agent was appointed by the principal to do notwithstanding it may cause an injury to the right of 3rd persons.
- Agent to be indemnifies against consequences of acts done in good faith
- Right of agent to be indemnified by principal for consequences of acts done by agents in good faith for which the agent was appointed by the principal to do notwithstanding it may cause an injury to the right of 3rd persons.
*Sec 177
- Non liability of employer of agent to do a criminal act
- One person employs another to do an act which is criminal, employer is not liable to the agent whether express or implied promise to indemnify him against the consequences of that act
- Non liability of employer of agent to do a criminal act
- One person employs another to do an act which is criminal, employer is not liable to the agent whether express or implied promise to indemnify him against the consequences of that act
*Sec 178
- Compensation to agent for injury caused by principal’s neglect
- Right of agent to compensation from principal in respect of injury caused to the agent by the principal’s neglect or want of skill
- Compensation to agent for injury caused by principal’s neglect
- Right of agent to compensation from principal in respect of injury caused to the agent by the principal’s neglect or want of skill
2. Dato' X appointed Mr Y, a real property agent, to
buy a bungalow
house at Impiana Height at the price of RM5 million. Mr Y bought a bungalow
house at Impiana Height at the price of RM5.5 million. Mr Y had also
obtained an insurance policy for the house even though there was
no instruction from Dato' X to do so.
house at Impiana Height at the price of RM5 million. Mr Y bought a bungalow
house at Impiana Height at the price of RM5.5 million. Mr Y had also
obtained an insurance policy for the house even though there was
no instruction from Dato' X to do so.
Dato' X liked
the house very much and ratified the contract upon being
informed about the contract. However, Dato' X had requested time to
consider the contract of insurance policy and he only ratified the contract
3 months later after the house was destroyed by fire.
informed about the contract. However, Dato' X had requested time to
consider the contract of insurance policy and he only ratified the contract
3 months later after the house was destroyed by fire.
With reference
to Contracts Act 1950 and decided cases, advise Dato' X
whether he is bound by the contracts (10m)
whether he is bound by the contracts (10m)
Under Sec 149 of Contract Act 1976, where
acts are done by one person on behalf of another but without his knowledge or
authority, he may elect to ratify or to disown the acts. If he ratifies them,
the same effect will follow as if they had been performed by his authority.
In this case, Mr Y, the real property agent
has exceeded his authority when he buy the bungalow at the price of RM5.5m
instead of RM5m by which instructed by Dato X. Because Dato X likes the house
so much therefore he ratified and therefore he is bound to the contract. There
are conditions of a valid ratification:
1. The contract done by agent
was without authority and exceed authority
2. The contract recognised by
law
3. The agent must act as
agent for the principal not in his own name
4. The principal must exist
when the contract was made
5. The principal must have
contractual capacity
6. The principal must have
knowledge of all material facts
7. The principal must ratify
the whole contract
8. Ratification must be made
within a reasonable time
9. Ratification must not
injure or affect the interest of a third person
As for the contract of insurance policy,
the contract is void because Dato X only ratified the contract after the
incident of fire happened. Under sec 57(2) of Contract Act 1976, contract to do
act afterwards becoming impossible or unlawful. Therefore, Dato X unable to
make a claim to the insurance company.
Valsala – Agency
Law: ratification appointment
à Mr Y is exceeding the authority asked by Dato X
à Dato X ratified the house contract
à Ratification had been made by principal
à Mr Y is exceeding the authority asked by Dato X
à Dato X ratified the house contract
à Ratification had been made by principal
Contract Act:
Dato X ratified the contract after 3 months
- the house destroy by fire
- fall under Sec 57 for frustration of the contract (Doctrine of frustration)
- Dato X unable to claim for the compensation.
- the house destroy by fire
- fall under Sec 57 for frustration of the contract (Doctrine of frustration)
- Dato X unable to claim for the compensation.
Karen -
1. Communication of Proposal *Sec 4 (1), Contract Act 1950
2. Communication of Acceptance *Sec 4 (2)
3. Revocation of Offer & Acceptance
- must be communicated *Sec (3)
- Time of Revocation Sec 5 (1): Offer can cancel
*Sec 5(2) Acceptance can cancel anytime before acceptance complete
1. Communication of Proposal *Sec 4 (1), Contract Act 1950
2. Communication of Acceptance *Sec 4 (2)
3. Revocation of Offer & Acceptance
- must be communicated *Sec (3)
- Time of Revocation Sec 5 (1): Offer can cancel
*Sec 5(2) Acceptance can cancel anytime before acceptance complete
Introduction To Law – Mock Question
Set B
1.
Malaysia legal system practices separation of power.
Explain three differences between legislative power and executive power. (3m)
Explain three differences between legislative power and executive power. (3m)
(a)
Executive (Government) –
(i)Enforce laws and to maintain laws.
(ii)Appoint officials and oversee the administration of government responsibilities.
(iii) Defend and preserve the unity and integrity of the country.
(iv) Policy making
(b) Legislature (Parliament) –
(i) Is the power to make and change of law.
(ii) Has the task of passing laws and supervising their implementation.
(iii) Parliament exercises control over the executive, checks the work of the Federal Government and the administrative institutions.
(i)Enforce laws and to maintain laws.
(ii)Appoint officials and oversee the administration of government responsibilities.
(iii) Defend and preserve the unity and integrity of the country.
(iv) Policy making
(b) Legislature (Parliament) –
(i) Is the power to make and change of law.
(ii) Has the task of passing laws and supervising their implementation.
(iii) Parliament exercises control over the executive, checks the work of the Federal Government and the administrative institutions.
2. Parliament is the place where law is debate and law
to enacted.
Give four source of law in Malaysia. (3m)
Give four source of law in Malaysia. (3m)
(a)
Federal Law by Parliament (Written Law)
(b) State Law made by State Assemblies (Written Law)
(c) Principle of English Law (Unwritten Law)
(d) Islamic Law (Written Law)
(e) Customary Law (Unwritten Law)
(f) Federal Constitution (Written Law)
(b) State Law made by State Assemblies (Written Law)
(c) Principle of English Law (Unwritten Law)
(d) Islamic Law (Written Law)
(e) Customary Law (Unwritten Law)
(f) Federal Constitution (Written Law)
3. Contract
without consideration is consider as void.
Explain what is executory consideration and past consideration. (4m)
Explain what is executory consideration and past consideration. (4m)
Executory
Consideration: when one promise is made in return for another or a promise in
return of promise.
Eg: A agrees to sell his car for RM20,000 to B.
B agrees to pay the sum of RM20,000 in consideration for A’s promise to sell the car
Eg: A agrees to sell his car for RM20,000 to B.
B agrees to pay the sum of RM20,000 in consideration for A’s promise to sell the car
A promise to sell the car is
the consideration for B’s promise to pay the RM20,000.
These are lawful considerations.
These are lawful considerations.
Past
Consideration: Where one party has voluntarily performed an
act and the other party later promises to reward for the voluntary act.
Voluntary act is done first and the promise is made later.
Eg: If A finds and return B’s pen and in gratitude, B promise to pay A RM200 the promise is made in return for a prior act.
Under English Law, the general rule that is past consideration is insufficient to support a contract.
4. Contract can be discharged by many way.
Explain the discharged of contract under section 57 of Contract Act 1950. (4m)
Eg: If A finds and return B’s pen and in gratitude, B promise to pay A RM200 the promise is made in return for a prior act.
Under English Law, the general rule that is past consideration is insufficient to support a contract.
4. Contract can be discharged by many way.
Explain the discharged of contract under section 57 of Contract Act 1950. (4m)
There are 4 categories
of discharged of contract:
a)
Discharge by performance
*Sec 38(1)
- parties to a contract must either perform or offer to perform their promise, unless such performance has been dispensed with by any law.
*Sec 38(1)
- parties to a contract must either perform or offer to perform their promise, unless such performance has been dispensed with by any law.
b)
Discharge by agreement
* Sec 63 Contract Act 1950
- Contract created by consent can be discharged by consent. It can be at any time of the contract (express consent) or subsequent to contract (waiver, novation, release, remission and rescission).
* Sec 63 Contract Act 1950
- Contract created by consent can be discharged by consent. It can be at any time of the contract (express consent) or subsequent to contract (waiver, novation, release, remission and rescission).
c)
Discharge by frustration
* Sec 57 (2) of Contracts Act 1950
- When there is a change in the circumstances which renders a contract legally or physically impossible of performance. It happens when a contract to do an act becomes impossible or unlawful.
* Sec 57 (2) of Contracts Act 1950
- When there is a change in the circumstances which renders a contract legally or physically impossible of performance. It happens when a contract to do an act becomes impossible or unlawful.
d)
Discharge by breach of
contract
*
- If one of the parties in a contract refuses to perform his promise it is said that the contract has been discharged by breach.
- Eg: A agrees to sell his condo to B for RM500,000 but after some days A refuses to sell the condo. A has breached the contract.
*
- If one of the parties in a contract refuses to perform his promise it is said that the contract has been discharged by breach.
- Eg: A agrees to sell his condo to B for RM500,000 but after some days A refuses to sell the condo. A has breached the contract.
5. Agency must
act for the best interest of the principal.
Explain the statutory duties that stated under Section 167 and Section 171 of
Contract Act 1950. (6m)
Explain the statutory duties that stated under Section 167 and Section 171 of
Contract Act 1950. (6m)
* Sec 167
- “Agent’s duty to communicate with principal”
- Agent is under duty in cases of difficulty to use all reasonable diligence in communicating with his principal and in seeking the principal’s instruction.
- Eg: Cases of emergencies, agent must use his discretion to the best interest of the principal.
*Sec 171
- “Agent’s duty to pay sums received on behalf of principal”.
- Agent is bound to pay the principal all moneys received on account of the principal.
- Agent may however, before giving all the monies deduct the following:-
a) Advances paid by the agent first, on behalf of the principal
b) Agent’s commissions
c) Agent’s remuneration (salary)
- “Agent’s duty to communicate with principal”
- Agent is under duty in cases of difficulty to use all reasonable diligence in communicating with his principal and in seeking the principal’s instruction.
- Eg: Cases of emergencies, agent must use his discretion to the best interest of the principal.
*Sec 171
- “Agent’s duty to pay sums received on behalf of principal”.
- Agent is bound to pay the principal all moneys received on account of the principal.
- Agent may however, before giving all the monies deduct the following:-
a) Advances paid by the agent first, on behalf of the principal
b) Agent’s commissions
c) Agent’s remuneration (salary)
6. “Delegatus
Non Protes” that the agent cannot delegate their power to
perform on behalf on themselves .Analyses the exception that allow
delegation of power to be conducted. (6m)
perform on behalf on themselves .Analyses the exception that allow
delegation of power to be conducted. (6m)
An agent may delegate his authority to another in the following
circumstances:
a) Where the principal approves the delegation of authority
(Case: De Bussche v Alt 1878)
a) Where the principal approves the delegation of authority
(Case: De Bussche v Alt 1878)
Fact- The principal appointed an agent in China
to sell a ship at certain price. However, the agent was unable to sell the ship
so he sought the principal’s approval to appoint sub agent to sell the ship in
Japan.
Held- There was no breach of agent’s duty in appointing a sub agent because
there was an express consent to such delegation.
b) Where it is
presumed from the conduct of the parties that the agent would have power to
delegate his authority.
c) Where custom of
the trade or business permits delegation.
d) In case of necessity or unforeseen emergency, for
example, illness of agent.
7. Tortious action can be trespass to person or
trespass to land.
Explain the defenses available under trespass to land. (6m)
Explain the defenses available under trespass to land. (6m)
(a) License: permission to enter land and may be express,
implied or contractual.
(b) Necessity: A defendant is excused from liability for
trespass to land if the action is strictly necessary to prevent public
disaster.
(c) Justification by Law: Where defendant is legally authorized to enter
onto the claimant’s land by statutory authority, he can’t be liable for
trespass on land
eg: the police have powers under the Police and Criminal Evidence Act 1984 to enter premises and search them
eg: the police have powers under the Police and Criminal Evidence Act 1984 to enter premises and search them
(d) Consent: A person or claimant who agrees to a certain
action cannot complain or sue.
a) The defendant had consent
b) The plaintiff was not entitled to
exclusive possession of the land
c) The plaintiff did not have actual
possession of the land
d) The action was not intentional
e) The action was authorized by legislation
f) The plaintiff gave permission for the
defendant to be on the land for an express purpose or period of time.
8. Neighbour
principle establish in the case of Donoghue v Stevenson .
Explain what is mean by “neighbour” that describe by Lord Atkin. (8m)
Explain what is mean by “neighbour” that describe by Lord Atkin. (8m)
- Famous cases of Donoghue vs. Stevenson (1932)
- Snail in the bottle case
- Established when duty of case might arise.
- says that a person should take reasonable care to avoid acts or omissions that s/he can reasonably foresee as likely to cause injury to the neighbor.
Neighbor includes all persons who are so closely and directly affected by the act that the actor should reasonably think of them when engaging in the act or omission in question.
- Snail in the bottle case
- Established when duty of case might arise.
- says that a person should take reasonable care to avoid acts or omissions that s/he can reasonably foresee as likely to cause injury to the neighbor.
Neighbor includes all persons who are so closely and directly affected by the act that the actor should reasonably think of them when engaging in the act or omission in question.
- In the orginal case Donoghue
drank a bottle of Ginger Beer manufactured by Stevenson. Having drunk some of
the contents of the bottle, she claimed that the remnants of a decomposing
snail plopped out into her glass. Donoghue then contracted gastroenteritis and
sued Stevenson.
- As a result of this case, the
legal principle of Duty of Care was formed. All manufacturers of products bear responsibility
for any damage that their products cause, even if the the sufferer did not buy
the product themselves (e.g. it might have been a present). Furthermore this
principle extends not only to manufactured products but also services. Sport
and recreation organisations provide services and must ensure that such
services are safe for all the participants.
This case was a decision of the House of Lords that
established a modern concept of negligence by setting out general principles
whereby one person would owe another person a duty of care. Per Lord Atkin has
used the ‘neighbour principle’ to solve the case.
Neighbour principle is a test to determine the existence of a duty of care whereby if a person does not take the usual degree of precaution, another person of his property maybe injured or damaged.
Duty of care is the first element of negligence. For example, a negligence security guard on a certain residential area would resulted in danger to the people that live in that area. In this case, the security guard has the duty of care towards the residents at that area.
Neighbour is the persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts.
For example, the restaurant owners have the duty of care to make sure that the restaurant is always clean especially in the kitchen as it can be foresee that their negligence in their services may effect or causing injuries to the customers (neighbour).
Referring to the case of Donoghue v Stevenson, the ginger beer manufacturer has a duty of care towards the customer that drink it. The manufacturer has to ensure that their product is clean and safe to be consumed as the decomposed snail had been found in the ginger beer drink by the customer that caused him suffered severely ill as consequences.
SECTION B
1. Donoghue v Stevenson set a landmark
cases to establish tort of negligence.
Explain briefly the element on negligence under law of tort. (10m)
(a) Duty of Care
Explain briefly the element on negligence under law of tort. (10m)
(a) Duty of Care
The outcomes of some negligence cases depend on whether
the defendant owed a duty to the plaintiff. Such a duty arises when the law
recognizes a relationship between the defendant and the plaintiff, and due to
this relationship, the defendant is obligated to act in a certain manner toward
the plaintiff. A judge, rather than a jury, ordinarily determines whether a
defendant owed a duty of care to a plaintiff. Where a reasonable person would
find that a duty exists under a particular set of circumstances, the court will
generally find that such a duty exists.
In the example involving the defendant loading bags of
grain onto a truck, and striking a child with one of the bags, the first
question that must be resolved is whether the defendant owed a duty to the
child. In other words, a court would need to decide whether the defendant and
the child had a relationship such that the defendant was required to exercise
reasonable care in handling the bags of grain near the child. If the loading dock
were near a public place, such a public sidewalk, and the child was merely
passing by, then the court may be more likely to find that the defendant owed a
duty to the child. On the other hand, if the child were trespassing on private
property and the defendant did not know that the child was present at the time
of the accident, then the court would be less likely to find that the defendant
owed a duty.
a) Duty of care-
there must a wrongful and unauthorized act or omission by the defendant
- in order to determine the existence of duty of care, the objective test must be applied
- in order to determine the existence of duty of care, the objective test must be applied
- For example,
would a reasonable man who is in the same circumstances as the Defendant
foresee that his conduct will affect the plaintiff?
- If the answer is
affirmative, then the plaintiff owes a duty of care.
(b) Breach of Duty
A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.
A defendant is liable for negligence when the defendant breaches the duty that the defendant owes to the plaintiff. A defendant breaches such a duty by failing to exercise reasonable care in fulfilling the duty. Unlike the question of whether a duty exists, the issue of whether a defendant breached a duty of care is decided by a jury as a question of fact. Thus, in the example above, a jury would decide whether the defendant exercised reasonable care in handling the bags of grain near the child.
Breach of duty of care- the act or omission
affect the interest or rights of others
- It is consider as a breach once the
defendant does something that falls beneath the minimum standard of care
required of him/ her and the minimum standard of care is one of a reasonable
man.
- the question to ask is whether a
reasonable man faced with the same circumstances of the Defendant would have
acted the same way as the Defendant.
- if
the answer is no then defendant has breached the duty of care.
(c) Cause in Fact
Under the traditional rules in negligence cases, a plaintiff must prove that the defendant's actions actually caused the plaintiff's injury. This is often referred to as "but-for" causation. In other words, but for the defendant's actions, the plaintiff's injury would not have occurred. The child injured by the defendant who tossed a bag of grain onto a truck could prove this element by showing that but for the defendant's negligent act of tossing the grain, the child would not have suffered harm.
(d) Damages
A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.
A plaintiff in a negligence case must prove a legally recognized harm, usually in the form of physical injury to a person or to property. It is not enough that the defendant failed to exercise reasonable care. The failure to exercise reasonable care must result in actual damages to a person to whom the defendant owed a duty of care.
Damages-
the injured party or victim to have a right to damages
- in order to
determine the damages, the court would enquire as to the chain of causation
- For example,
there is an ink between the breach and the damages suffered by the plaintiff
- therefore, the
court would apply the but-for-test whereby the causes involved in the said
negligent act and whether the plaintiff had contributed to the said breach of
duty of care.
2. May, who is a 15-year-old girl, would like to enter into a legal contract
with her 21-year-old friend, June. Consider whether May and June have
the legal capacity to make a contract or not, by highlighting the relevant
provisions in Contracts Act 1950 and decided cases.
Would your answer be
different if either May was a mentally disordered
person or June had been declared bankrupt under Section 3 of the
Bankruptcy Act 1967? (10m)
person or June had been declared bankrupt under Section 3 of the
Bankruptcy Act 1967? (10m)
Under Sec 11 Contract Act 1950, “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”
In Malaysia, the age of majority is 18
years old (Age of majority Act)
However, there are exception cases for
minor enter into contract:-
1)
Contract
for necessaries
2)
Contract
of scholarship
3)
Contract
of insurance.
For May, she is only 15 years old therefore
she cannot enter into contract but June is allowed because she is 21 years old.
If May is a mentally disordered person, the
answer remain the same because a person to enter contract must be sound of
mind. Sec 12 (1), a person is said to be sound of mind for the purpose of
making a contract if, at the time when he make it, he is capable of
understanding it and of forming a rational judgement as to its effect upon his
interest. In this case, she cannot enter into contract because she is minor and
not sound mind.
If June had been declared bankrupt under
Section 3 of the Bankruptcy Act 1967, she cannot enter into contract because
she is disqualify from contracting by any law. In this case, she cannot enter
into contract.
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