INTRODUCTION

In this case, there are two possible sets of laws for Sta Mak to claim for damages. The first one

being the Sales of Goods Act 1957 (‘SOGA’),1 and the other one being the Consumer Protection

Act 1999 (‘CPA’).2 To produce the best advice for Sta Mak, we will look at the applicability of

both the legislations in order to help Sta Mak seek for plausible and suitable remedies.

ISSUE 1: WHETHER STA MAK CAN CLAIM FOR DAMAGES USING THE SALES

OF GOODS ACT?

1.1 Whether SOGA is applicable in the present case?

S.4(1) of SOGA states that a contract of sale of goods is a contract whereby the seller transfers or

agrees to transfer the property in goods to the buyer for a price.3 Under SOGA, ‘goods’ means

every kind of movable property other than actionable claims and money while ‘price’ is defined

as the money consideration for a sale of goods.4 The price in a contract of sale may be fixed by

the contract or in a manner agreed by the parties in the course of dealings. 5 In short, to constitute

a contract of sale according to S.4(1) of SOGA, there must exist 3 crucial elements which are:

the existence of goods, transfer of title of the goods, for a price or consideration.

In the present case, a contract of sale is said to have established when the seller 6 Ah Tok sold 6

tins of preserved prawns to Sta Mak the buyer. 7 Although the facts are silent on the price or

consideration, but it was clear that Sta Mak had purchased and consumed one of the tinned

prawns. This impliedly signifies that a price has been paid by Sta Mak to obtain ownership over

the goods. Hence, the elements under S.4(1) are fulfilled and SOGA is applicable.

1
Sales of Good Act 1957 (SOGA)
2
Consumer Protection Act 1999 (CPA)
3
S.4(1) of Sales of Goods Act 1957
4
S.2 of Sales of Goods Act 1957
5
S.9(1) of Sales of Goods Act 1957
6
S.2 of Sales of Goods Act 1957. ‘Seller’ means a person who sells or agrees to sell goods.
7
S2 of Sales of Goods Act 1957. ‘Buyer’ means a person who buys or agrees to buy goods.

1
1.2 Whether Ah Tok has the right to sell under SOGA?

S.14(a) of the SOGA provides that there is an implied condition that a seller has a right to sells

the goods, and that in an agreement to sell, he will have the right to pass the goods at the time

when the property is to pass. A person is said to have right to sell as long as when the he is able

to pass the property and that the transfer of possession is not prevented by the law.8

In the case of Rowland v Divall,9 it was held that when the implied term of a seller having a right

to sale is breached, the contract can be rescinded, and the buyer can demand for the purchase

money to be returned. Similarly, in the local case of Lian Lee Motor Sdn Bhd v Azizuddin,10 the

court held that the defendant had breached the implied condition under S.14(a) of the SOGA by

selling a stolen car, so the plaintiff is entitled to recover for the whole purchase price. However,

it is worthy to note that under S.62 of SOGA, the rights under an implied terms or conditions

may be negated or varied by express agreement or by the course of dealing between the parties,

or by usage, if the usage is such as to bind both parties to the contract.11

In the present case, Ah Tok has the right to sell under SOGA as he had in his own possession a

dozen tins of preserved prawns with the brand name ‘Sek Fan’ which he bought by himself. With

this, he has the right to sell and transfer the goods to another person, or a buyer.

ISSUE 2: WHETHER THERE ARE IMPLIED CONDITIONS TO BE COMPLIED BY

THE TINNED PRAWNS SOLD BY AH TOK UNDER SOGA?

2.1 Do the tinned prawns fall within the ambit of exceptions under S.16(1)(a) of SOGA?

Generally, S.16(1) of SOGA states that 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, unless it falls

8
Niblett Ltd v Confectioners' Materials Co Ltd [1921] 3 KB 387
9
[1923] 2 KB 500
10
[2001] 5 MLJ 334
11
Section 62 of Sales of Goods Act 1957 [Act 382]

2
under the exceptions illustrated under the said provision, then there exists implied condition as to

the quality and fitness of the goods supplied.

The case of Union Alloy12 illustrated the 3 elements under S.16(1)(a), which are: the buyer

expressly or by implication makes known to seller the purpose for which the goods are required;

to show that the buyer relies on the seller’s skills/ judgment; and the goods were bought from a

seller in the course of his business to supply.

With regards to the first element, it is crucial to note that for ordinary goods, the purpose need

not to be stated as it is known to any ordinary man. For instance, in the case of Grant v

Australian Knitting Mills Ltd,13 the buyer bought new underpants which contained an excess of

harmful chemicals. Lord Wright held that there is no need to specify in terms the particular

purpose for which the buyer required the goods because it is the only purpose for which anyone

would ordinarily want the goods. In other words, if the product is purchased for ordinary goods,

the seller cannot deny or allege that the buyer did not inform him of his use of the product.

Conversely, in Griffiths v Peter Conway,14 a woman bought a tailor-made coat from the

defendants and contracted dermatitis from wearing it due to her sensitive skin. The court said

that since the coat fits most people, and only someone who has a similar skin type as the woman

would have suffered from similar problem, the defendant could not be expected to assume the

existence of her problem. The onus is on the buyer to indicate clearly when goods are to be used

for a special purpose or else there would not be a breach of implied condition.

In this case, there is no need for Sta Mak to expressly make known to Ah Tok of his purpose of

purchasing the preserved prawns because any ordinary person would know that the purpose of

buying such product is to consume it.

12
Union Alloy v Syarikat Pembinaan Yeoh Tiong Lay [1993] 3 MLJ 167.

13
[1936] AC 85.
14
[1939] 1 All ER 685.

3
The second element in S.16(1)(a) requires the buyer to show that he relied on the seller’s skill or

judgment in purchasing the goods. The seller must be someone who is familiar with the selling

that product. The judge in Grant v Australian Knitting Mills Ltd 15 ruled that reliance must be

brought home to the mind of the seller, expressly or by implication. The reliance is seldom

express, and mostly depends on the circumstances, for example, reliance will be inferred from

the fact that the buyer goes to the shop in the confidence that the tradesman has selected his stock

with skill and judgment.

S.16(1)(a) also requires the goods to be bought in the “course of business to supply”. The case of

Spencer Trading Co Ltd v Devon16 showed that goods are “of a description which it is in the

course of the seller’s business to supply” if they fall within the general description of the goods

supplied by the seller, although in a particular instance they take a special form or are designed

for a special use. In addition, there is a proviso to S.16(1)(a) which states that if the goods are

specific, the sale must not be made under patent or trade name. To elucidate on this point,

reference shall be made to the case of Baldry v Marshall17 where it was ruled that the proviso is

only applicable when the buyer specifically asks for the goods from the trade name so as to

indicate that he is satisfied that it will address his purpose, rightly or wrongly, and that he is not

relying on the skill and judgment of the seller.

If all the requirements under S.16(1)(a) is proven, there will be strict liability on the seller. 18

However, in the present case, none of the elements are fulfilled. Firstly, it is unnecessary for Sta

Mak to state his reasons for purchasing the preserved prawns as such good is an ordinary good

where people would buy for the purpose of consuming it. Secondly, Sta Mak did not rely on Ah

Tok’s skill or judgement as the tins were not usual goods or product that Ah Tok would normally

sell as a fishmonger. Ah Tok also does not have the expertise in selling tinned preserved prawns
15
[1936] AC 85.
16
[1947] 1 All ER 284.

17
[1925] 1 KB 260.
18
Frost v Aylesbury Dairy Co Ltd [1905] 1 KB 608.

4
as he is a fishmonger at the market, who deals with fresh seafood his ordinary course of business,

not tinned ones. Therefore, S.16(1)(a) cannot be applied.

2.2 Whether the preserved tin prawns were of merchantable quality according to S.16(1)(b) of

SOGA?

According to S.16(1)(b), there is no implied warranty or condition required as to the quality and

fitness of the goods unless such goods were bought by description from a seller who deals in

goods of that description, regardless of whether he is the manufacturer or producer or not, then

there is an implied condition that the goods shall be of merchantable quality. However, if the

buyer has examined the goods, there shall be no implied condition as regards defects which such

examined ought to have revealed.

The words “where goods are bought by description from a seller who deals in goods of that

description” in S.16 (1)(b) depicts that this condition only arises if the seller sold the goods in his

ordinary business. In order for Sta Mak to bring an action against Ah Tok, he needs to prove that

the buyer must have bought the goods from a seller whose business it is to deal in goods of that

kind.19 For example, in the case of Grant20 the seller was held liable under the equivalent S.16(1)

(b) since the buyer proves that he has bought the underpants by the description from the seller

manufacturer or seller.

In the present case, Sta Mak bought the tin prawns from Ah Tok who is only reselling the tins

after consuming it. The facts are silent on whether Sta Mak has relied on the description of the

tins. Nevertheless, the fact that Ah Tok is merely a fishmonger and the nature of his business

deals with raw fishes and seafood, it can be argued that he does not deal with the tin prawns in

his ordinary course of business especially manufactured foods. Therefore, S.16(1)(b) is

inapplicable against Ah Tok since Ah Tok does not deal with the tin prawns in his ordinary

course of business.
19
Sale of Goods Law in Malaysia – Abdul Majid and Krishnan Arjunan
20
Supra, n.15

5
The next crucial element in this particular section was the element of merchantable quality and

there are two tests to determine if the goods are merchantable quality, namely, the acceptability

test and the usability test. The acceptability test is a stricter test in which the members of the

coram in the case of Henry Kendall & Sons (A Firm) v William Lillico & Sons Ltd & Ors 21

ruled that goods are not of merchantable quality if the buyer bought the goods with full

knowledge on the quality and defects of the good without a discounted price.

Applying the test to our case, if Sta Mak had no knowledge on the quality and defects of the

tinned prawns when he first purchased it. If he had known that the prawns were not properly

preserved or contained chemicals that was harmful to his gastric, he would not have bought the

tins of prawns. Therefore, the tins of preserved prawns not a merchantable quality good under

this test.

On the other hand, the usability test as laid out in Cammell Laird & Co Ltd v Manganese

Bronze & Brass Co Ltd 22

said that goods are not considered as a merchantable quality if they

are of no use for any purpose for which such goods would normally be used and the goods are

not saleable under the description. The Malaysian case of Seng Hin v Arathoon & Sons Ltd 23

has applied such test and ruled that a non-merchantable quality of goods are goods that serve no

purpose than how it is normally be used.

Applying the test to our case, the ordinary purpose of the tinned prawns is to be safely

consumed. The facts showed that Ah Tok and Sta Mak have consumed the tinned prawns by

cooking it, but the only difference is that Sta Mak had consumed it without adequately cooking

it. However, this would not negate the fact that the tinned prawns are not of a merchantable

quality just because it was inadequately cooked because the prawns inside the tins itself were

carelessly preserved and contained harmful parasites and chemical especially to consumers

21
[1969] 2 AC 31
22
[1934] AC 402
23
[1968] 2 MLJ 123

6
suffering from gasto-entrirtis like Sta Mak. Unlike the case of Seng Hin, the tin prawns did not

serve its ordinary purpose. Therefore, the tin prawns are not of merchantable quality.

Another element here is the proviso to S.16 (1)(b) which states that if the buyer has examined the

goods, there shall be no implied condition as regards defects which such examination ought to

have revealed. A seller could avail himself from being liable under S.16(1)(b) if he could prove

that there was some examination done by the buyers. The case of Frank v Grosvenor Motor

Auctions24 said that such condition of merchantable quality will only be excluded by an actual

examination and only as regards discoverable defects.

In the present case, the facts are silent as to whether Sta Mak has examined the tins before

purchasing them. However, the defects were actually context of the tinned prawns and the

method of preserving them, which could not have been inspected except by opening the tins. The

proviso could not be applicable here as Sta Mak had no opportunity to examine the prawns inside

the tin until he opens it. Thus, S.16(1)(b) as a whole cannot be relied upon because it cannot be

proven that there is any implied condition to be complied by the tinned prawns sold by Ah Tok.

Although SOGA could be applied, but it seems that Sta Mak could not rely on S.16 of the SOGA

to claim against Ah Tok because the tinned prawns did not fulfill the available implied

conditions stipulated under the said section. But, alternatively, we may refer to the CPA to

determine whether Sta Mak can bring an action against Ah Tok.

ISSUE 3: WHETHER STA MAK CAN CLAIM FOR DAMGES USING CONSUMER

PROTECTION ACT 1999?

3.1 Whether CPA 1999 is applicable in the present case?

S.2(1) of the CPA provides that this Act shall apply in respect of all goods and services that are

offered or supplied to one or more consumers in trade. Trade means any trade relating to the

24
[1960] VR 607

7
supply or acquisition of goods or services.25 ‘Goods’ is defined as goods which are primarily

purchased used or consumed for personal, domestic or household purposes.26

In this case, Sta Mak acquired the preserved prawns for his personal consumption, making him a

qualified ‘consumer’27 under the CPA while Ah Tok was clearly a ‘supplier’ 28 within the

definition given in CPA. Moreover, Ah Tok had not only fulfilled the meaning of supplier within

the CPA, but it was also proven that he has the right to sell pursuant to S.31(a) of the CPA as he

has supplied goods, in this case the 6 tins of preserved prawns to a consumer. A supplier by

supplying goods also means resupplying by way of sale. Hence, CPA is applicable here as a

trade has occurred between Ah Tok the supplier and Sta Mak the consumer.

3.2 Whether the tinned prawns sold by Ah Tok to Sta Mak complied to S.32 of CPA on

acceptable quality?

S.32(1) of the CPA states where goods are supplied to consumer there shall be implied guarantee

that the goods are of acceptable quality. For a good to be deemed as acceptable quality, the

elements under S.32(2)(a) and (b) must be fulfilled. S.32(2)(a) has outlined the prerequisite of

goods which are of acceptable quality, inter alia, fit for all the purposes for which goods are

commonly supplied, safe and durable. In addition, a reasonable consumer would regard the

goods as acceptable goods having fully acquainted with the state and condition of the goods,

including any hidden defects, the nature of the goods, the price, and statements on packaging or

label of goods, representation made by supplier and all other relevant circumstances.29 

25
Definition of ’trade’ can be found under Section 3 of the SOGA
26
Definition of goods can be found under Section 3(1) of the CPA to include (a) goods attached to, or incorporated in, any real or
personal property; (b) animals, including fish; (c) vessels or vehicles; (d) utilities; and (e) trees, plants and crops whether on,
under or attached to land or not
27
S.3(1) of CPA. Consumer means a person who acquires or uses goods or services of a kind ordinarily acquired for personal,
domestic or household purpose, use or consumption and does not acquire or use the goods or services, or hold himself out as
acquiring or using the goods or services, primarily for the purpose of resupplying them in trade, consuming them in the course of
a manufacturing process or repairing or treating, in trade, other goods or fixtures on land.
28
Supplier is defined as a person, in trade, who supplies goods to a consumer by transferring the ownership or the possession of
the goods under a contract of sale.
29
Section 32(2)(b)

8
The preserved tins prawns sold by Ah Tok was unsafe to be consumed as the preserved prawns

where not properly prepared which contained active and harmful parasites, and a reasonable

consumer upon knowing that the prawn tins were not properly prepared would not regard the

prawn tins as acceptable. Furthermore, the prawn tins were not of acceptable quality as it was not

fit for all purposes for which the goods of the types are commonly supplied. This is due to the

fact that the preservative used, ‘axenocodine’ is extremely harmful to persons suffering from

gastro-entiritis. Therefore, the tinned prawns were not of acceptable quality. Moreover, it could

be argued that the tinned prawns were not of acceptable quality because Sta Mak was not fully

acquainted with the state and condition of the goods because he did not rely or regard to any of

the circumstances listed under S.32(2)(b) when he was purchasing the tinned prawns. 

S.32(3) of CPA also provided an exemption to sellers who have ‘specifically drawn the

consumer’s attention’ of the defects in the goods before supplying them. However, this would

inapplicable as Ah Tok did not specifically warn or draw Sta Mak’s attention to the defects of

preservation and about the harmful chemicals.

However, S.32 (5) provides for another circumvention for sellers to avail themselves from

liability. Under this section, goods are not deemed to have failed to comply with the implied

guarantee as to acceptable quality if they are being used inconsistent with the manner of which it

commonly being used by a reasonable consumer. Applying into our current case, though Sta

Mak consumed the prawn tins without adequate cooking it, it does not negate the fact that the

prawn tins were careless prepared for contacting active and harmful parasites. 

However, Ah Tok may argue that the effect of the parasites would have been substantially

reduced if it was being adequately cooked. Furthermore, Sta Mak also did not inform Ah Tok

that he was suffering from gastric nor the fact that Ah Tok is aware that the prawns were

contaminated since he had consumed it before selling it and did not suffer any extreme reaction

to the chemical like Sta  Mak had.

9
In conclusion, Sta Mak will stand a chance to claim under S.32 of CPA for goods of acceptable

quality, if he managed to prove that the goods are not fit for the purpose of consuming due to the

carelessly prepared prawn tins and a reasonable consumer would not have regard it as an

acceptable quality.

3.3 Whether the selling of tinned prawns fits the requirement of S.33 of the CPA?

S.33 of the CPA states that implied guarantee shall exist where the goods are that the goods are

reasonably fit for any particular purpose that the consumer makes known, expressly or implied,

to the supplier as the purpose for which the goods are being acquired by the consumer 30 and that

the goods are reasonably fit for any particular purpose for which the supplier represents that they

are or will be fit.31 It is to be noted that the implied guarantees shall not apply where consumer

does not rely on supplier's skill or judgment32 or it is unreasonable for the consumer to rely on

the supplier's skill or judgment.33

In the present case, it is clear that Sta Mak bought the prawn tins to consume it. Furthermore, it

may be inferred that Ah Tok represents that the prawn tins are safe to be consumed as he had put

it up for sale in his stall at the local market. However, it may be argued that it is unreasonable to

rely on Ah Tok’s judgement as to the fitness of the prawn tins as he appeared to be fine after

consuming one of the tins.

On the other hand, the fact does provide that one of the reasons as to why Sta Mak suffered from

severe infections on his throat and stomach was due to the fact that he consumed the contents of

one of the tins without adequately cooking the same. As a result, the parasites were not killed by

the cooking of the prawns. This shows that there has been negligence on part of Sta Mak.

30
Section 33(1)(a) of the CPA
31
Section 33(1)(b) of the CPA
32
Section 33(2)(a) of the CPA
33

10
Hence, in order for Sta Mak to succeed in his claim under this section, Sta Mak must prove that

the prawn tins were not fit for its purposes to a reasonable consumer.

ISSUE 4: WHAT ARE THE REMEDIES AVAILABLE FOR STA MAK?

4.1 Whether Sta Mak can claim damages from the supplier, Ah Tok?

As concluded above, the tinned prawns sold by Ah Tok were unfit for sale and failed to comply

with implied guarantees stipulated under the CPA. Therefore, Sta Mak is able to exercise his

right to remedies against the supplier under S.41(1)(a) for the supplier to remedy the failure

within a reasonable time in accordance to S.42.

S.42(1)(c) enables a consumer to be remedied by the supplier replacing the goods which failed to

comply with guarantee with goods of identical type. Sta Mak has the right to request a

replacement for the tinned of preserved prawns from Ah Tok with other identical products

available. It is to be noted that S.42(2) of the Act states that the replacement goods claimable

under S.42(1)(c) shall be deemed to be supplied by the supplier and the replacement goods must

also fulfil the guarantees and obligations of supply of goods to a consumer under the Act.

However, if in the case that Ah Tok does not have any other identical goods to replace the goods

bought by Sta Mak which failed to comply with guarantee, Sta Mak may claim against Ah Tok

for a refund of the money paid or other consideration provided for the purchase of goods under

S.42(1)(d). Pursuant to S.42(3), a refund in this sense means a refund in cash of money paid or

the value of any other consideration, or both, provided by the consumer.

In addition to the remedies under S.41(1), S.41(2) provides that the consumer may obtain from

the supplier damages for any loss or damage suffered by the consumer, other than loss or damage

through a reduction in the value of the goods, which is proved to be a result or consequence of

the failure. In our present case, this means that other than asking for a refund or replacement of

11
goods, Sta Mak may obtain for the medical expenses of RM1650 from the supplier, Ah Tok as

Sta Mak has suffered pain and anxiety after consuming the preserved prawned sold by Ah Tok.

S.41(3) Where the supplier refuses or neglects to remedy the failure as required under paragraph

(1)(a), or refuses or neglects to do so within a reasonable time, the consumer may— (a) have the

failure remedied elsewhere and obtain from the supplier all reasonable costs incurred in having

the failure remedied.

4.2 Whether Sta Mak can claim for loss and damages from the manufacturer of the preserved

prawns under the brand name ‘Sek Fan’?

Other than claiming from Ah Tok the supplier and in instances where Ah Tok refuses to remedy

the failure in a reasonable time, Sta Mak may also consider claiming damages from the

manufacturer of the product.

In S.50(a) of the CPA, it states that a consumer has a right of redress against a manufacturer of

goods when the goods fail to comply with the implied guarantee as to acceptable quality under

S.32 of the Act. However, if the manufacturer can prove that the failure of the goods to comply

with the implied guarantee under S.32 is due to an act, default or omission of, or any

representation made by, a person other than the manufacturer; or a cause independent of human

control, occurring after the goods have left the control of the manufacturer, then Sta Mak shall

have no right of redress against the manufacturer as stated under S.51 of the Act.

The facts of the present case showed that the act of the manufacturer did not fall within any of

the exceptions listed under S.51 and have failed to comply with the implied guarantees under the

Act as the preserved prawns were carelessly preserved and a harmful chemical was used. A

manufacturer should have known the ingredients and methods of the products should be such

which are safe to be consumed or used by its consumers. Therefore, Sta Mak has the right of

redress against the manufacturer of the preserved prawns pursuant to S.50 of the CPA. The

12
available redress that can be sought by Sta Mak from the manufacturer is provided under S.52(1)

(b), which includes claiming damages for any loss or damages, such as his medical bill

amounting to RM1650.

4.3 Whether Sta Mak can claim against the producer for defective products under S.68 of the

CPA?

Additionally, S.68(1) states that a producer of a defected product could be held liable where any

damage is caused wholly or partly by a defect in a product. A producer can be defined as the

person who manufactured the product under S.66 of the CPA.

In this case, it is fair to say that the manufacturer of the product could be held liable as he did

carelessly prepare the preserved tin prawns as they were preserved using ‘axenocodine’ which is

harmful towards consumers who have gastroenteritis and it contained active and harmful

parasites. It is unknown to a manufacturer of who will be purchasing and consuming his

products, or whether the consumers have any particular disease or medical conditions. He should

have always carefully and responsibly prepared his products in order to be sold on the basis that

he owes a duty of care to his customers and consumers. Also, it does not matter whether the

damage is caused by a partial or substantial defect of the product according to S.68(1), once the

damage is done, the producer could be made liable.

4.4 Whether Sta Mak’s negligence of not adequately cooking the preserved prawns would

deny his claims against the supplier, the manufacturer or the producer?

The question of whether Sta Mak’s contributory negligence of not cooking the prawns

adequately would play apart in affecting the claims against both supplier and manufacturer will

arise. However, Sta Mak can raise S.12(1) of the Civil Law Act 1956, which reads as follows:

Where any person suffers damage as the result partly of his own fault and partly of any other

person or persons, a claim in respect of that damage shall not be defeated by reason of fault of

13
the person suffering the damage, but the damages recoverable in respect thereof shall be reduced

to such extent as the Courts think just and equitable having regard to the claimant’s share in the

responsibility for the damage.

Therefore, even if the supplier or manufacturer raise the defense of contributory negligence, it

will not deny the rights of Sta Mak to claim damages from them. But the court will look at the

situation and severity in deciding the amount claimable.

CONCLUSION

14