BBUN2103 Business Law

tugasan ini telah di buat pada semester september 2008.

jadikan ia sebagai rujukan dan bukan utk ditiru/plagiat, tq


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Question A

Section 2 of Age Majority Act 1971 specifies that all males and females citizen of Malaysia that have attained the age of 18 shall be of the age of majority.

“Subject to section 4, the minority of all males and females shall cease and determine within Malaysia at the age of eighteen years and every such male and female attaining that age shall be of the age of majority” – Section 2 of Age Majority Act 1971

Since Johnny enter the installment contract with SEA Corporation for the purchasing of the washing machine at the age of 16, the contract is void and not valid. Section 11 of the CA 1950(CA) have specifically states that only 3 groups of persons capable of entering into a contract. The 3 groups are:

  1. be of the age of majority (Age of Majority 1971)
  2. be sound of mind (section 12 of CA)
  3. be not disqualified or lost of capacity

As for this case, the contract was made while Johnny was at the age of 16, the contract agreement deemed as void. In Leha Jusoh vs Awang Johari case, the land sell contract which was made by a minor was deemed void as it early as it was made (void ab initio). Therefore, the court have decided under section 66 of CA, ordered that the payment for the land to be returned to the infant.

Johnny has no obligation to the contract that he made with SEA Corporation. However, if SEA Corporation went to the court, the decision made may required that the said washing machine to returned to SEA Corporation.


Question B

Based on the Hire – Purchase Act 1967 (HPA), the owner/seller of the goods sold have the right to repossess the goods. SEA Corporation as the seller/owner of the washing have the right to reclaim the washing machine sold to Johnny. This is due to the contract made was void and invalid. However, under HPA, some procedures need to be followed in order to repossess the said goods.

Under HPA, the owner has the rights to repossess the goods by following several procedures. Section 16(1) of HPA specifically provides the situation on when repossession can take place.

Subject to this section, an owner shall not exercise any power of taking possession of goods comprised in a hire-purchase agreement arising out of any breach of the agreement relating to the payment of instalments unless there had been two successive defaults of payments or a default in respect of the last payment and he has served on the hirer a notice, in writing, in the form set out in the Fourth Schedule and the period fixed by the notice has expired, which shall not be less than twenty-one days after the service of the notice.- section 16(1) HPA

As Johnny failed to make any payment after 3 months, SEA Corporation has the right to repossess the goods sold to him. Section 16 of HPA requires the owner to serves the hirer a notice before the repossession take place. The notice expiry shall not be less than 21 days after the service of the notice.

SEA Corporation is also required to send a notice within 21 days of the repossession to all guarantors if there are any that involved in the contract. Acknowledgment receipt of document must be sent to Johnny when SEA Corporation takes the possession of goods.

However in this case, SEA Corporation may get the court order to skip the procedures in Section 16 of HPA as the contract made earlier can be deemed as void as Johnny was considered as an infant as he still below the age of the majority.


Question C

Although the washing machine has been sold to Raihan one week earlier, Raihan still have the rights to claim against SEA Corporation. This consistent with section 16 of Sales of Goods Act 1957(SGA) that states:

Implied condition as to quality or fitness.

(1) Subject to this Act and of any other law for the time being in force, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows –

(a) Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he is the manufacturer or producer or not) there is an implied condition that the goods shall be reasonably fit for such purpose:

Provided that, in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.

(b) Where goods are bought by description from a seller who deals in goods of that description (whether he is the manufacturer or producer or not) there is an implied condition that the goods shall be of merchantable quality:

Provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examined ought to have revealed.

(2) An implied warranty or condition as to quality or fitness for a particular purpose may be annexed by the usage of trade.

(3) An express warranty or condition does not negative a warranty or condition implied by this Act unless inconsistent therewith.

The situation faced by Raihan similar in Deutz Far East (Pte) Ltd vs Pacific Navigation Co Ltf (1990) case. The defendant claimed that the part supplied were defective and have caused great damage to the engine. As the washing machine sold to Raihan has caused damages to his clothes, Raihan has the right to claim against SEA Corporation.

Since the purpose of buying the washing machine is to wash clothes, Raihan does not need to inform SEA Corporation the purpose of the purchase. Although the purpose of the purchase is to wash clothes, it is clear that Raihan had relied to the seller which is SEA Corporation to sell/provide to him a washing machine that should be of merchantable quality and will not cause any damages to his clothes. Therefore, Raihan can claim against SEA Corporation under SGA.




Question D

Although Michael have signed the employment contract that includes the special clause that prohibited Michael to compete, employed or self-employed anywhere within Kuala Lumpur for a period of five years, the clause is considered void at the earlier stage. This is because under section 28 of CA states that:

Section 28 of CA

Agreement in restraint of trade void.

Every agreement by which anyone is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void.

Although SEA Corporation may sought an injunction to prohibit him from violating the terms in his employment, it is likely the court will dismissed the injunction. Based on Polygram Records Sdn Bhd vs The Search, the court have declared that the clause prohibit the defendant from making any recording after the expiry of their contract was void from the very beginning.

In Wrigglesworth vs Wilson Anthony, the court have also that the clause restraining the defendant practicising his profession was void regardless the distance and place.

Therefore I would advice Michael not to afraid with SEA Corporation’s action that they may seek injunction prohibiting him to work with MMH Company. From the previous court decision, it is likely that the injunction maybe dismissed by the Court.


Question E

According to wikipedia is an equitable remedy in the form of a court order, whereby a party is required to do or interact with in certain ways all right, or to refrain from doing, certain acts. Injunction in Malaysia falls under section 50 and section 51 of Special Relief Act (SRA).

Section 50 of SRA states:

Preventive relief how granted.

Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.

There are 3 types of injunction under section 51 of SRA which are:

1. Perpetual Injunction (under section 51(2) and 52 of SRA)

– it is a continuous type of injunction. It can only be granted by the decree made at the hearing and upon the merits of the suit. The defendant maybe imposed the perpetual injunction to prevent him from breaching an obligation that exists in favor of other parties. Section 52 (3) of SRA specifically named the following cases that the court may grant perpetual injunction. The cases are:

(a) where the defendant is trustee of the property for the plaintiff;

(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

(c) where the invasion is such that pecuniary compensation would not afford adequate relief;

(d) where it is probable that pecuniary compensation cannot be got for the invasion; and

(e) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

2. Temporary Injunction (section 51 (1) of SRA)

– it is an injunction that are to continue to be in place until a specified time or until further order of the court. It can be granted at any period of a suit and it is regulated by the law relating to civil procedure.

Temporary injunctions are such as are to continue until a specified time, or until the further order of the court. They may be granted at any period of a suit, and are regulated by the law relating to civil procedure.

3. Mandatory Injunction (section 53 of SRA)

– Mandatory injunction is to prevent breach of an obligation. It can be obtain by the court order. The court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts. For example A is a contractor who is responsible to build a building in C’s land. However, during the construction, A have built some part of the building in B’s land. Therefore, B seeks injuction of stop work order to A since the construction has entered B’s land without its permission.


References

  1. http://www.lawnet.com.my
  2. http://en.wikipedia.org

3. Prof. Dr. Mansor Fadzil et. al (2008). Open University Malaysia: BBUN2103: Business Law. Kuala Lumpur. Meteor Doc Sdn Bhd.

4. International Law Book Services: Contracts Act 1950 (Act 136), Contracts (Amendment) Act 1976 (A329) & Government Contracts Act 1949 (Act 120). Kuala Lumpur. Syarikat Pencetakan Ihsan Sdn Bhd.

5. Syed Ahmad Alsagoff (2003): Principles of the Law Contract in Malaysia-Second Edition. Singapore. Reed Elsevier (Singapore) Pte Ltd.

6. Wu Min Aun (1994): Legal Aspects of Sale of Goods. Kuala Lumpur. Longman Malaysia Sdn Bhd.

  1. Saudah Sulaiman (2001). Pengenalan Undang-Undang Kontrak & Agensi. Kuala Lumpur. Dewan Bahasa & Pustaka

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