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PLAGIARISM DECLARATION FORM (T-DF)

Instructions
Please complete and attach this Plagiarism Declaration Form to each Assignment that you
submit into the Online Assignment Submission (OAS) system for marking.

I declare that the attached work is entirely my own (or when submitted to meet the requirements
of an approved group assignment is the work of the group), except where materials cited, quoted
or paraphrased are acknowledged in the text. I also declare that this work / assignment has not
been submitted for assessment in any other course or university without due acknowledgement.
I understand that plagiarism, collusion, and copying are grave and serious offences.
I understand that disciplinary action (which may include deduction of marks in the Assignment) will be
taken against me if I am found to be an offender of Assignment plagiarism.
Full name and IC No: NUR HIDAYAH BT MOHD ABU BAKAR (940424075170)
Date: 18/06/2021

Assignment (Asgmt) Declaration Form

Semester/Year JAN 2021

Student’s Name NUR HIDAYAH BT MOHD ABU BAKAR

Student’s ID No: 041170619

Course Code BBM204/05

Course Title BUSINESS LAW

Class Code 4BLW1

Assignment No: 1

No. of pages of this 6

Assignment (including
this page)

Tutor BAMA A/P GOBALOO

Course Coordinator KANG AH GEIK

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QUESTION 1

a ) Malaysian law can also be found in the judicial decisions of the High Court, Court of Appeal and
the Federal Court, the then Supreme Court and the Judicial Committee of the Privy Council.
Decisions of these courts were made and still are being made by what is called the ‘doctrine of
binding precedent’. Case-law or precedent may comprise res judicata, ratio decidendi and obiter
dictum.

Res judicata is the final order of the court binding the immediate parties to the decision. The doctrine
of res judicata, applies only to the immediate parties to the case. It means that the decision and the
final order of the courts binds the parties to the proceedings. In short, res judicata applies only to the
immediate parties.

Ratio decidendi is basically, the reason for the decision. In a case, in addition to the res judicata the
legal reasoning upon which the decision in that case was based may be used by judges in the future
cases when confronted with similar facts.

Anything else about the law in the course of judgment that does not form part of the matters at issue
is called obiter dictum. Obiter dictum has no binding power. The doctrine of precedent was
instrumental in the evolution of the building up and building up of both common law and equity.

b ) The ‘neighbour’ principle as stated by Lord Atkin in Donoghue v Stevenson is the principle of the
foresight of the reasonable man. This is the test for the existence of a duty owed to the plaintiff. The
test is whether the injury to the plaintiff was a reasonably foreseeable consequence of the
defendant’s act or omissions. The effects of the authorities applying Donoghue v Stevenson is that,
in deciding whether a duty of care is owed by a defendant to a plaintiff in a given case, it is
necessary to consider the facts and circumstances of that case- Canadian National Railway Co v
Norsk Pacific Steamship Co. However, for this principle to apply, it is not required that the plaintiff
must be identifiable by the defendant. It is enough if the plaintiff is one of a class within the area of
foreseeable injury. In Haley v London Electricity Board, where this test was applied, the Court held
that a reasonable man would foresee that the safety precautions taken by the defendants were
insufficient and therefore they were held liable for the plaintiff’s injury.

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QUESTION 2

The three ways in which a contract may be discharged are by performance, frustration or by breach.
The first one to elaborate is discharge by performance. As a general rule, performance of a contract
must be exact and precise and should be I accordance with what the parties had promised. Section
38(1) of the Contracts Act 1950 provides that parties to a contract must either perform or offer to
perform their respective promises, unless such performance has been dispensed with by any law.
Thus, if Adam promises to deliver goods to Eva on 6 July 2020 on payment of RM 3000, Adam is
bound to deliver the goods to Eva on that day and Eva is bound to pay the RM 3000. Performance
may be from a third party and not necessarily from the promisor. Section 42 of the Contracts Act
1950 provides that ‘when a promise accepts performance of the promise from a third person, he
cannot afterwards enforce it against promisor’.

Secondly, contract can be discharged by frustration. A contract is frustrated when there is a change
in the circumstances which renders the contract legally or physically impossible of performance-
section 57(2), Contracts Act 1950. From the wording of section 57(2), it is clear that there are two
instances for frustration, i.e. when a contract to do an act becomes impossible or unlawful. However
the frustration should be supervening and subsequent to the formation of the contract. There are,
however some exceptions to this rule of frustration. For example, it would be unreasonable to hold S
to a promise to sell P a house if, unknown to either party, the house had burnt to the ground. This
contract will be impossible to perform, it is frustrated because its object is no longer attainable owing
to something beyond the control of either party.

Thirdly, contract can be discharged by breach. Where a party fails to performs their obligations as
agreed, they are in breach of contract. A breach can occur in some ways including failure to comply
with a term of the contract, by a part announcing to the other party that they are no longer interested
in carrying out their obligations prior to the time for performance (anticipatory breach) and delay in
the performance where time is of the essence in the contract. When one of the parties indicates to
the other either by conduct or in clear terms an intention not to go on with the contract, the party is
said to have repudiated or renounced the contract. A contract is discharged only if the disability to
perform is brought about through the fault of the party concerned. If the disability is caused through
the occurrence of some other events, beyond the control of the parties, the contract may be
discharged through frustration.

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QUESTION 3

The law imposes a duty upon the person claiming damages (the injured party) to take all reasonable
steps to reduce or minimize or mitigate their loss. If they fail to take these steps, the amount of
damages they can expect to recover will be reduced. If the plaintiff is able to avoid a loss, damages
will not be recoverable for the potential loss that the plaintiff may have suffered.

If an innocent party doesn’t mitigate its loss, they’re not entitled at law to recover the loss that it
could have taken reasonable steps to mitigate. The level of reasonableness applied is not a finely
balancing exercise; after all the claimant's predicament was caused by the defendant's wrongdoing.
The defendant bears the burden of proof that the claimant has not mitigated its loss. When that
burden is discharged, the claimant it will not be entitled to recover the specified loss. The paradox is
that doing nothing usually leaves the claimant - the innocent party - in the worst possible situation if
it intends to maximize recoverable damage. That’s because:

 if the contract breaker makes an allegation that the innocent party has not mitigated its loss,
and the innocent party has not taken any reasonable step which was available to mitigate,
the claimant has no defence to a claim that it has failed to mitigate its loss, when it should
have
 It will be limited to recovering loss as if it had performed its “duty” and mitigated its loss. The
legal claim for damages can be diminished whether or not the innocent party actually does
take steps to mitigate its loss. The result is that courts assume that claimants have mitigated
its loss, and assesses damages as if it had.

Also, the steps taken to mitigate loss are usually time sensitive. More on that below. So where there
are reasonable options available to the claimant to reduce their loss, the claimant should take them.
It also means having an arguable defence to a claim that damage has not been mitigated. As an
example, a software developer is engaged to develop a new website for £1,000. They set about the
project but failed to deliver it on time, and have a series of cost overruns. There is no question that
they are in breach of contract and entitled to terminate it. The innocent party sets about finding
another developer. They tell them to start from scratch and develop the website from scratch. This
time it costs £1,500, because there is a lack of ready website developers that are capable of
implementing the requirements. It turns out that the defective website could have been fixed for
£300. The claimant is not entitled to recover for the costs to have the site redeveloped, because it is
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reasonable to incur the cost of having it fixed rather than rewriting the entire site. Also, by mitigating
loss a claimant may bring about a situation in which its loss is partly or completely avoided.

QUESTION 4

The basic element of a contract are the following

1. Offer – ‘when one person signifies to another his willingness to do or to abstain from doing
anything, with view of to obtaining the assent of that other to the act or abstinence, he is said
to make a proposal’. This is offer.
2. 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.
This means acceptance. A proposal when accepted, becomes a promise.
3. Intention to create legal relations – Although the Contracts Act 1950 is silent on the intention
to create legal relations as one of the requirements of a valid contract, case-law clearly
dictates the necessity of this requirement.
4. Consideration – when at the desire of the promisor, the promise or any other person has
done or abstained from doing, or does or abstains from doing, or promise to do or abstain
from doing something such act or abstinence or promise is called a consideration for the
promise.
5. Certainty – the terms of an agreement cannot be vague but must be certain.
6. Capacity – Capacity refers to the ability of the parties to a contract to fully understand its
terms and obligations.

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REFERENCE

1. WAWASAN OPEN UNIVERSITY COURSE MATERIAL UNIT 1-UNIT 3 OF BUSINESS LAW

2. https://en.wikipedia.org/wiki/Mitigation_(law)
3. https://www.contractscounsel.com/b/contract-law