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LAW OF CONTRACT
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PREVIEW
1. Introduction 2. Essential Elements of a Contract
Proposal Acceptance Intention to Create Legal Relations Consideration Legal capacity Certainty
3. 4. 5. 6.
Voidable Contracts - Free Consent Void and Illegal Contracts Discharge of Contract Remedies for breach of Contract
AGREEMENT = CONTRACT?
Authority: Sec.2(h) CA 1950 an agreement enforceable by law is a contract Authority: Sec.10(1) CA 1950 What agreements are contract? 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 5 declared to be void.
(2) ESSENTIAL ELEMENTS OF CONTRACT The contract can only be enforceable by law and legally binding, if the contract has been fulfilled the essential elements. These elements are required:
1. Proposal (Offer) 2. Acceptance 3. Intention to Create Legal Relations 4. Consideration 5. Legal capacity (Competency)
Held: an offer can be made to all world because the contract will only be made with that limited portion of the public who came forward & performed the condition on the faith of the advertisement. (Defendants advertisement being considered as proposal addressed to public at 8 large)
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s.6(c) Failure to fulfill a condition Precedent to acceptance s.6(d) Death/Mental Disorder of a party Rejection
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ELEMENT 2: ACCEPTANCE
(a) DEFINITION
Auth: Sec. 2(b) when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted, becomes a promise...
ELEMENT 2: ACCEPTANCE
ELEMENT 2: ACCEPTANCE
(d) Terms of an Acceptance
Auth: Sec. 7 In order to convert a proposal into a promise the acceptance must (a) be absolute & unqualified; (b) be expressed in some usual & reasonable manner.
A
(proposal) Term x Term y Term z
B
(acceptance) Term x Term y Term z
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ELEMENT 2: ACCEPTANCE
(e) Issue s.7(a): Counter proposal/Offer
If there are modifications/variations of proposal it will become a counter proposal/offer and NOT AN ACCEPTANCE.
ELEMENT 2: ACCEPTANCE
(f) Issue s.7(b): Form of Acceptance
Gen. Rule: SILENCE DOES NOT AMOUNT TO CONSENT/ACCEPTANCE Auth: Case Law Fraser v. Averett Held: There is no rule of law like the saying Silence gives consent. Auth: Case Law Felthouse v. Bindley Fact: F wrote to his nephew offering to buy a horse for f30 15s. And he added If I hear no more about him, I consider the horse mine at f30 15s. The nephew did not reply. The nephew however told B (an auctioneer) to keep the horse out of the sale of his farming stocks because he wanted to set it aside for F. B (auctioneer) sold it by mistake. F sued B. Held: There was no acceptance by the nephew as he had kept silent. F (Plaintiff) 24 therefore had no right to claim the horse as there was no contract.
ELEMENT 2: ACCEPTANCE
(g) Issue s.7(b): Form of Acceptance
Exception: (Silence may amount to acceptance)
Auth: Case Law Weatherby v. Banham Fact: A proposer sent food to the promisee, prescribing that payment for the food need to be paid if the promisee accepts the proposal by consuming the said food. Held: The act of consuming the food amounted to an acceptance even if the promisee kept silent (not communicating his acceptance to the proposer).
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ELEMENT 2: ACCEPTANCE
(h) Issue s.7(b):Time limit for an acceptance
REASONABLE TIME??? Auth: Case Law Ramsgate Victoria Hotel Co. v. Montefiore Fact: M (the defendant) wrote to apply for shares in RVH (the plaintiff )company on the 8th of June. He received no further news until 23rd November. When he was informed that the shares have been alloted to him the defendant refused to accept them.
Held: RVH (the plaintiff) had allowed too long a time to lapse before accepting defendants offer. M (the defendant) therefore is not liable to accept the shares.
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ELEMENT 2: ACCEPTANCE
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ELEMENT 2: ACCEPTANCE
(j)When a communication of an acceptance is said to be completed?
Auth: Sec. 4(2)(a)&(b) (a)as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor.. (b)as against the acceptor, when it comes to the knowledge of the proposer. -Illustration (b) to Sec. 4
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ELEMENT 2: ACCEPTANCE
(k) Issue (s.4(2)):When a communication of an acceptance is complete
INSTANTANEOUS MEANS OF COMMUNICATION??? By phone, verbal, video conrefrence,telex etc. Auth: Case Law Entores Ltd v. Miles Far East Corp.
Fact: The defendant, in Amsterdam, sent an acceptance by telex. The plaintiff (proposer) received the telex in London. When a dispute on the contract arose the plaintiff brought it to the English Court to get a writ against the defendant. The English Court therefore had to first decide whether there was a contract made in London.
Held: There was a contract made in London, and the English Court therefore had the jurisdiction to hear the case. Communication of acceptance was deemed instantaneous, and was formed the moment the plaintiff received the defendants telex of acceptance in London. 29
ELEMENT 2: ACCEPTANCE
(l) Issue (s.4(2)):When a communication of an acceptance is complete
NON-INSTANTANEOUS MEANS OF COMMUNICATION POSTAL RULE Issue: where there is a gap of time between acceptance made by the acceptor and communicated to the proposer)? Auth: Case Law Ignatius v. Bell. Fact: The Dft, Bell, gave an option to the Pltf to purchase a piece of land on the condition that the option must be exercised on or before 20/8/12. Both parties had contemplated the use of the post as means of communication. The Pltf sent a registered letter on the 16/8/12. Because he was not at home, the Dft only received it on the evening of the 25/8/12. Held: the contract bound the defendant on the 16/8/12, that is, when the plaintiff posted the letter of acceptance. The said option was executed within the specified 30 time.
ELEMENT 2: ACCEPTANCE
(m) Revocation of Acceptance When? -Auth: Sec. 5(2) An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. -Illustration to Sec.5
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ELEMENT 2: ACCEPTANCE
(n) Revocation of acceptance When it is said to be communicated?
-Auth: Sec. 4(3)(a) as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;and -Auth: Sec. 4(3)(b) as against the person to whom it is made, when it comes to his knowledge.
(2)Social/Domestic/ Family Arrangement -there is a presumption NO Intention to CLR unless there are evidence to show otherwise.
Auth:Case Law Balfour v. Balfour Ferris v. Weaven
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Mohd Isa
ELEMENT 4: CONSIDERATION
(4.1) WHAT AGREEMENTS ARE CONTRACT? Authority: Sec.10(1) CA 1950: 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. (4.2) DEFINITION Auth: Sec. 2(d): when at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise 34 is called a consideration of the promise.
(B)
-A promise is made in return for another promise. -
EXECUTED
EXECUTORY
(C) PAST
PROMISE + PROMISE
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or in part the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit -Illustration (b)&(c) of Sec.64
English Position: Part payment . may not discharge the whole obligation
-Case Law: Pinnels case Held: Payment of a lesser sum in satisfaction of a greater sum could not be any satisfaction for the whole
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Sec. 26 provides that agreement made without consideration is VOID EXCEPT (it is VALID) if:(A) Sec. 26(a):It is in writing and registered; 3 conditions:
(i) is in writing; (ii) is registered under the law for the time being in force for the registration of such documents (if any); (iii) is made on account of natural love and affection between parties 40 standing in a near relation to each other.
Sec. 26 provides that agreement made without consideration is VOID EXCEPT (it is VALID) if:(B) Sec. 26(b): It is a promise to compensate for something done 3 conditions:
(i) It is a promise to compensate, wholly or in part; (ii) One who has already voluntarily done something for the promisor;or 41 (iii) Something which the promisor was legally compellable to do.
Sec. 26 provides that agreement made without consideration is VOID EXCEPT (it is VALID) if:(C) Sec. 26(c): It is a promise to pay a debt barred by limitation law. 4 conditions:
(i) The agreement is made in writing (ii) The agreement is signed by the debtor or his authorised agent (iii) The agreement is to pay wholly or in part a debt (iv) The creditor might have enforced payment of the debt but for the 42 law for the limitation of suits
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VOID AB INITIO
WHAT HAPPENS TO THE BENEFITS PASSED UNDER THE CONTRACT? CAN IT BE RECOVERED? In Mohori Bibee v. Dharmodas Ghose The court held that the moneylender was not entitled to enforce the mortgage in order to force him to pay the loan because he had known at the time the contract was agreed upon that the borrower was a minor. In Tan Hee Juan v. The Boon Keat The Court held that the transfer was void and the minor allowed to get the return of his land, and the court denied the buyers claim for refund of the purchase money.
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VOID AB INITIO
WHAT HAPPENS TO THE BENEFITS PASSED UNDER THE CONTRACT? CAN IT BE RECOVERED? However, Section 40 of The Specific Relief Act 1950 provides: On adjudging the cancellation of an instrument, the court may require the party to whom the relief is granted to make any compensation to the other which justice may require. It shows that the court has the discretion whether to require that the benefits be restored or to make compensation.
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Common law :1) Language used too vague. 2) Failure to reach agreement on a vital / fundamental term.
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Sec.13: Two or more persons are said to consent when they agreed upon the same thing in the same sense.
Sec. 14: Consent is said to be free when it is not caused by -
(a)Coercion Sec. 15 (b)Undue influence Sec. 16 (c)Fraud Sec. 17 (d)Misrepresentation Sec. 18 (e)Mistake subject to Sec. 21,22 & 23
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Illustration to Sec. 19
Sec. 19(2) :
(ii) Where one party stands in a fiduciary relation to the other eg. In the case of the confidential relationship between a solicitor & client, trustee & beneficiary, religious advisor & 62 follower/diciple, doctor & patient continue
Illustration to Sec.16
Case: Inche Noriah v. Shaikh Allie b. Omar Fact: Held: The gift should be set aside as the presumption of undue influence, which raised by the r/ship proved to have been in existence between the parties, was not rebutted.
Effects of a contract entered into by fraud: Section 20.
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Gen. Rule: wherever a person causes another to act on a false representation which the maker himself does not believe to be true, he is said to have committed a fraud. Illustration to Sec. 17. Case : Kheng Chwee Lian v. Wong Tak Thong Fact: Held: Gen. Rule: mere silence/non-disclosure would not constitute fraud. Auth: Explanation to Sec. 17 Exceptions (mere silence constitute fraud): A. The act of silence equivalent to speech that later found out to be untrue. 65 continue B. The contract is of uberrimae fide.
Section 19.
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In the case of fraud, silence in certain situation where there is a duty imposed to disclosed, may amount to misrepresentation. S18 (b).
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Section 19.
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Sec. 23: Contract caused by mistake of one party as to matter of fact NOT VOIDABLE/VALID Mistake as to any law in force in Msia NOT VOIDABLE/VALID
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VOID/ILLEGAL CONTRACT
CONSEQUENCES OF VOID/ILLEGAL AGREEMENT
Gen. Rule: ex turpi causa non oritur actio (no action will arise from a wrong done) The courts will not enforce an illegal contract. However, Sec. 66 lays down when an agreement is discovered to be void, the person who received an advantage under such contract is bound to restore it to other party or to pay adequate compensation for 72 the same. (the right of RESTITUTION)
Usual method for the discharge of a contract. Parties to the contract perform the duties
completely. Performance must be exact & precise and in accordance with the terms of the contract. S. 38(1) CA provides that parties to a contract
must either perform or offer to perform their respective promises unless such performance has been disposed with by any law.
(B)DISCHARGE BY AGREEMENT/CONSENT
agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed. Novation = is the substitution of a new contract for an
earlier one, particularly a contract between a creditor, a debtor and a third party whereby they agree to substitute a third party for the debtor or creditor under the original contract which will be discharged. Illustration (a) to S. 63 CA
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Either by expressed or implied consent. The consent of all parties to the contract is necessary. e.g. Waiver, release, novation, remission or rescission. S. 63 CA provides that if the parties to a contract
(C)DISCHARGE BY FRUSTRATION
(C)DISCHARGE BY FRUSTRATION
b) Where a contract depends on the happening of a
certain event.
-if the event does not occur the contract is discharged by frustration. Case: Krell v. Henry a room was hired for the sole purpose of watching the coronation procession of King cancelled coz the Kings illness. c) Supervening illegality -when the contract becomes illegal eg. by outbreak of war. Case: Berney v. Tronoh Mines Ltd. Japan invaded Msia contract of employment was discharged. d) Death/Personal incapacity -Case: Condor v. The Bsrron Knight Ltd drummer employed-ill-not fit to perform contract was discharged.
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(D)DISCHARGE BY BREACH
obligation. Indicates to other party an intention not to go on with the contract, the party is said to repudiated the contract. The disability to perform is due to the fault of the party concerned. Three (3) forms of breach:
1. Refused to perform 2. Disables himself from performing promise. 3. Repudiated liability under contract.
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(D)DISCHARGE BY BREACH
put an end to the contract + must restore any benefit which he may have received from the other party. S. 65 CA Remedies available for breach of contract: 1. Damages 2. Quantum meruit 3. Specific performance 4. Injunction
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(1)DAMAGES
DEFINITION -The courts estimated compensation in money for detriment or injury sustained by the plaintiff in contract/tort.
In Hadley v. Baxendale the court decided that damages may only be awarded in respect of loss which either:a. arises naturally- accord. to usual course of things for the breach b. which the parties may be reasonably supposed to have contemplated in making the contract as the probable result of the breach of it. Sec. 74 an injured party is entitled to: a. Natural damages b. Special damages continue 81
(1)DAMAGES
Aim of rewarding damages = to give relief to the innocent party for the losses incurred, not to punish the party whos in breach. Case: Tham Cheow Toh v. Associated Metal Smelters Ltd Held: a failure to sent a smelter that could burnt up to f2600 is a breach of contract. Dft can expect the losses that might incurred from that breach.
Such compensation is not to be given for any remote and indirect loss or damages sustained as a result of the breach. continue 82
(1)DAMAGES
Damages of unspecific amount are divided into 3: 1. Substantial a reward given is to put plaintiff in a place that he should if defendant perform the contractual obligation. 2. Nominal a small reward to plaintiff after he shows that there is a breach of contract, even though there is no real losses incurred. 3. Exemplary a reward given is far higher than the losses incurred.
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(2)QUANTUM MERUIT
means as much as he has earned and only arises in cases of part performance. can arise where:
a) a defendant has prevented a plaintiff from carrying out the remainder of their contractual duties b) the parties cannot agree on payment c) the parties agree on payment for the part-performance but not the actual amount
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(3)SPECIFIC PERFORMANCE
DEFINITION It is the decree or the court directing that the contract shall be performed specifically, that, according to its term.
Section 11(1) Specific Relief Act 1950 provides that specific performance may granted by the court in the following circumstances:a. The contractual obligation is a trust. b. Actual damage cannot be ascertained c. A breach cannot be adequately relieved by
compensation of money.
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(4)INJUNCTION
DEFINITION A decree by the court ordering a person not to do a certain act. It is an equitable remedy given at the discretion of the court.
In the Specific Relief Act 1950, the injunction is a remedy classed in Part III as the Preventive Relief.
Section 50 merely states that it is granted at the discretion of the court and injunction can be either temporary or perpetual.
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(4)INJUNCTION
A Temporary injunction are such as to continue until a specific 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.
A perpetual injunction can only be granted by the decree made at the hearing and upon the merit at the suit , the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an Act, when would be contrary to the right of the plaintiff.
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(5) RESCISSION
an equitable remedy, which allows an innocent party to cancel the contract by rescinding or, if there has been misrepresentation by the other party, raising that misrepresentation as a defence if sued for damages or specific performance by the other party
(6) RESTITUTION
is sometimes referred to as quasi-contract. It is not contractual and does not rely on the plaintiff suffering loss or damage. Its basis is unjust enrichment; that is, those situations where it would be very unfair if the defendant was to be allowed to retain the money, or the goods or services, without payment.
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REVIEW
1. Introduction 2. Essential Elements of a Contract
Proposal Acceptance Intention to Create Legal Relations Consideration Legal capacity Certainty 3. Voidable Contracts - No Free Consent Coercion Undue Influence Fraud Misrepresentation Mistake
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REVIEW
4. Void and Illegal Contracts 5. Discharge of Contract
By Performance By Agreement By Frustration By Breach 6. Remedies for breach of Contract Damages Quantum Meruit Specific Performance Injunction Rescission Restitution
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