Judicial Precedent Revisited – Estate Agent's Examination Part 1&2

Q.
(a) ‘Judicial Precedent’ is one of the sources of “unwritten laws” in Malaysia.

Explain what is judicial precedent and state its advantages and disadvantages. (4 marks)

(b) In relation to the law of contract:

(i) Explain the meaning of the terms ‘proposal’ and ‘acceptance’. (3 marks)

(ii) Explain how a contract may be ‘discharged by frustration’ as provided under the Contracts Act, 1950. (3 marks)

Write short notes on any two (2) of these remedies. (4 marks)

(d) N/A Sale of Goods Act, 1957

(MIA QE 2012/9 Q1, 20 marks)

(a) Advantages of doctrine of binding judicial precedent, please refer:
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:

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) Discharging a contract by frustration.

A contract may be discharged by frustration when there is a change in circumstances which renders the contract legally or physically impossible of performance.

Section 57(2) of the Contracts Act, 1950 provides that, a contract to do an act which, after the contract is made, becomes impossible, or by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

There are two instances of frustration, ie; when a contract to do an act becomes impossible or unlawful. The frustration should be supervening and subsequent to the formation of the contract. A self-induced frustration does not discharge a party of his contractual obligations.

Cases:
Maritime National Fish Ltd v Ocean Trawlers Ltd;
Yee Seng Plantations Sdn Bhd v Kerajaan Negeri Terengganu & Ors.

MIA QE 2013/3 Q1 (c) ‘damages’ as one of the important remedies available for breach of contract.

MIA model answer:

Remedies for breach of contract:

(i) Damages: Section 74 of the Contracts Act, 1950 provides damages to be granted to a party as compensation for the damage, loss or injury he has suffered through a breach of contract.

The illustrations to Section 74 clearly indicate that the party may recover damages for:

Other expenses incurred as a result of the breach;
The loss of profits arising out of the breach; and
The difference between the price of goods as contracted for and the actual price the goods were sold for as a result of the breach.

The plaintiff is only allowed to recover a reasonable sum for breach of contract (Section 75, Contracts Act, 1950) and is required to prove the actual damage he has suffered.

(ii) Specific Performance: It is a discretionary remedy provided for by the Specific Relief Act, 1950 (Revised 1974). Section 21 of the said Act provides the court with discretion to refuse specific performance where the granting of it would cause undue hardship to the defendant. The court will also exercise its discretion not to decree specific performance under Section 20 of the Specific Relief Act, 1950 where damages will provide an adequate remedy. Specific performance will also be refused where:

The terms of the contract are uncertain – Lim Nyuk Chan v Wong Sz Tsin;
There has been delay in bringing the action – Itam binti Saad v Chik binti Abdullah;
There is evidence of fraud – Siah v Tengku Nong;
Contant supervision by the court would be required – Lee Sau Kong v Liow Chang Chiang; or
The contract is for personal services – Dato’ Abdullah bin Ahmad v Syarikat Permodalan Kebangsaan & Ors.

(iii) Injunction: An interlocutory injunction is used by a party to maintain the status quo of the subject matter in a pending suit.

An injunction is an equitable remedy. It can therefore be varied or dissolved if the court discovers subsequently that the application for injunction was made on suppressed facts or that the fact upon which the order was granted no longer exist.

Type of injunction include mandatory and prohibitory injunction. A mandatory injunction is a court order requiring something to be done whilst a prohibitory injunction stops something from being done.

(d) Not included in Syllabus.

Ref:

MIA Website QE, available at
mia.org.my

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