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BMLW5103 Final Exam 40% Sem 5 2023 Fahmi
BMLW5103 Final Exam 40% Sem 5 2023 Fahmi
BMLW5103 Final Exam 40% Sem 5 2023 Fahmi
MAY 2023
BMLW 5103
BUSINESS LAW
MATRICULATION NO : CGS02285401
IDENTITY CARD NO. : 870123385481
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PART A
Q1
a)
The principle that "an acceptance must be absolute and unqualified" is a fundamental concept
in contract law. It means that when a party receives an offer and intends to accept it, the
acceptance must mirror the terms of the offer precisely, without adding, modifying, or
contradicting any terms. Any attempt to introduce new terms or conditions in the acceptance
would be considered a counter-offer, rather than a valid acceptance. This principle ensures
clarity and certainty in contract formation, as both parties need to be on the same page
regarding the terms of the agreement.
In the context of Malaysia business law, this principle is guided by the Contracts Act 1950,
which governs contracts in Malaysia. Let's discuss this understanding with relevant legal
provisions and cases:
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4. Case: Tek Seng Holdings Bhd v Hing Nyit Enterprise Sdn Bhd (2005) - Application in
Malaysia:
In this case, the court emphasized that an acceptance must be identical to the offer and must
not introduce new terms. Any variation in the terms of acceptance would result in a counter-
offer. This case highlights the significance of maintaining consistency between the offer and
acceptance.
In conclusion, the principle that "an acceptance must be absolute and unqualified" is a
foundational concept in contract law, ensuring that parties are in clear agreement on the terms
of the contract. In Malaysia, this principle is codified in the Contracts Act 1950, and various
legal cases have illustrated its application in contract disputes. Adhering to this principle
promotes certainty, prevents misunderstandings, and maintains the integrity of contract
formation in business transactions.
b)
In Malaysia, the Contract Act 1950 governs contracts and provides guidance on various
aspects of contract law, including the intention to create legal relations. Section 2(h) of the
Contract Act 1950 defines a contract as "an agreement enforceable by law." This definition
highlights the essential element that an agreement must be legally enforceable to be
considered a contract.
The principle that parties must have an intention to create legal relations for an agreement to
be legally binding is established in the Contract Act 1950 and is reflected in various
provisions and cases. Let's delve into this principle based on the Contract Act 1950:
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4. Case: Chan Wai Keung v UCPB Malaysia Bhd (2010) - Application in Malaysia:
In this Malaysian case, the court emphasized the requirement of an intention to create legal
relations. The court ruled that informal discussions and agreements during preliminary
negotiations do not necessarily constitute a legally binding contract if the parties did not
intend to create legal obligations.
In essence, the Contract Act 1950 reflects the principle that parties must intend to create legal
relations for an agreement to be enforceable as a contract. While the Act does not explicitly
mention "intention to create legal relations," it encompasses this concept through its various
provisions and the broader legal framework it establishes. This principle ensures that parties
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are only bound by duties and liabilities if they genuinely intended to enter into a legally
binding agreement.
Q2
a)
That agreements in restraint of trade or profession are generally considered void and
unenforceable due to their potential to hinder competition and restrict individuals' economic
freedom. However, under the Contract Act 1950 in Malaysia, there are certain circumstances
where such agreements can be regarded as valid and enforceable. These exceptions are based
on specific conditions that need to be met to ensure fairness and reasonableness in the
agreement. Here are a few circumstances where an agreement in restraint of trade or
profession might be considered valid:
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4. Trade Secrets and Confidential Information:
Agreements that restrict a party from disclosing or using trade secrets or confidential
information obtained during the course of employment or business relationship may be
upheld. The courts generally view protecting trade secrets as a legitimate interest that justifies
certain restraints.
6. Reasonableness Test:
In all the circumstances mentioned above, the courts in Malaysia apply a reasonableness test
to determine the validity of the restraint. An agreement will be upheld if it's deemed
reasonable to protect the legitimate interests of the parties involved and doesn't go beyond
what's necessary to achieve that protection.
It's important to note that the reasonableness of the restraint is a critical factor in determining
its validity. Agreements that are excessively broad, overly restrictive, or go beyond what is
necessary to protect legitimate interests are more likely to be deemed unenforceable.
b)
Under the Contract Act 1950 in Malaysia, a consideration or object in an agreement can be
regarded as opposed to public policy if it goes against the principles and values that society
deems as essential for the public good. Agreements that are against public policy are
considered void and unenforceable. Let's discuss when a consideration or object in an
agreement is regarded as opposed to public policy:
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1. Unlawful Acts or Offences (Section 24):
Consideration or object that involves the commission of an unlawful act or an offence is
against public policy. Agreements that promote or involve illegal activities, such as fraud,
theft, or harm to others, are void. This is because society aims to deter and prevent such
behavior.
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Agreements that are designed to defeat the provisions of any law are void. If parties enter into
an agreement with the intention of evading legal requirements or consequences, such an
agreement is against public policy.
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PART B
Q1
A
Under the Contract Act 1950 in Malaysia, an agency relationship is formed when one person,
known as the principal, appoints another person, known as the agent, to act on their behalf.
The authority of an agent to act on behalf of the principal can be either express or implied.
Express authority is explicitly granted by the principal to the agent, while implied authority
arises from the conduct and circumstances of the parties, even if not explicitly stated in the
agency agreement or verbally communicated.
The Contract Act 1950 provides a framework for understanding the scope and extent of an
agent's authority, even if not expressly mentioned in the agency agreement or verbal
instructions. This concept is crucial because it allows for flexibility in agency relationships
and enables agents to fulfill their duties effectively.
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interests and the agent cannot communicate with the principal in a timely manner. This
implies that an agent can have implied authority to take necessary actions when immediate
action is required, even if such authority is not explicitly provided for in the agency
agreement.
3. Case: Ong Leong Poh v William Jacks & Co. (M) Sdn Bhd (1981) - Application in
Malaysia:
In this case, the court emphasized that implied authority can arise from the nature of the
agency relationship, the agent's position, and the usual course of dealing between the parties.
In situations where an agent has acted within the scope of their role and in accordance with
the common practices of the trade, the court may find that implied authority existed, even if
not explicitly mentioned.
In conclusion, the Contract Act 1950 in Malaysia recognizes that an agent's authority can be
implied from the circumstances, even if not explicitly mentioned in the agency agreement or
orally communicated. This concept allows for flexibility and practicality in agency
relationships, as agents may need to make decisions within the scope of their role without
constant communication with the principal. The Act's provisions and relevant case law
emphasize the importance of considering the nature of the agency, the agent's position, and
the usual course of dealing when determining the scope of implied authority.
B)
In the situation where an individual (Dadu) continues to interact with clients on behalf of a
company (Kutu Sdn Bhd) as if he is still their agent, even after his formal agency relationship
has ended, there are potential legal and practical implications to consider. Additionally, if
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Kutu Sdn Bhd is aware of Dadu's actions but chooses to ignore them, this can have further
consequences. Let's explore the implications of these actions:
In this scenario, if Dadu continues to interact with clients and they reasonably believe he is
still an agent of Kutu Sdn Bhd, those interactions might bind Kutu Sdn Bhd due to the
principle of apparent authority. If Kutu Sdn Bhd is aware of Dadu's actions but ignores them,
it might not necessarily shield them from potential legal implications.
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Dadu could potentially make commitments or representations that the company is not aware
of or may not approve of.
6. Case: Kelang Lama Sdn Bhd v Menteri Kesejahteraan Bandar (1988) - Application in
Malaysia:
In this case, the court held that even though a principal did not directly authorize an agent's
actions, if the principal allowed the agent to act in a certain way and clients believed the
agent had authority, the principal could still be bound by the agent's actions.
In conclusion, under the Contract Act 1950 in Malaysia, if Dadu continues to interact with
clients as if he is still an agent of Kutu Sdn Bhd and Kutu Sdn Bhd is aware of this but
ignores it, there are potential implications. These implications include the principles of
apparent authority, ratification, and estoppel, which might lead to legal consequences where
Kutu Sdn Bhd could be held responsible for Dadu's actions. It's advisable for Kutu Sdn Bhd
to take appropriate actions to clarify Dadu's status and avoid any misunderstandings or legal
complications.
Q2
A
Under the Partnership Act 1961 in Malaysia, the death of a partner generally leads to the
dissolution of the partnership, unless there is an agreement to the contrary. However, the
assumption of the deceased partner's position by their next-of-kin does not happen
automatically based solely on the Contract Act 1950. Partnership law has its own set of rules
and principles that govern the transfer of partnership interests upon the death of a partner.
Let's discuss this matter in more detail:
1. Dissolution of Partnership:
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Section 33 of the Partnership Act 1961 stipulates that the death of a partner results in the
dissolution of the partnership, unless the partnership agreement specifies otherwise. This
means that the partnership as a whole is dissolved upon the death of a partner.
3. Rights of Representatives:
Upon the death of a partner, the deceased partner's rights and interests in the partnership are
typically transferred to their legal representatives, such as their estate administrators or
executors. These legal representatives have the authority to handle the deceased partner's
affairs, including their interests in the partnership.
6. Case: Yong Fah Tung Sdn Bhd v Yap Tuan Huat (1989) - Application in Malaysia:
In this case, the court held that the personal representatives of a deceased partner could not
automatically become partners in the firm without the unanimous consent of the existing
partners.
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In conclusion, while the Contract Act 1950 is relevant to general principles of contract law,
the rules governing the assumption of a deceased partner's position are outlined in the
Partnership Act 1961. The next-of-kin or legal representatives of a deceased partner do not
automatically become partners in the absence of an agreement to the contrary. Any such
assumption would require a new agreement among all existing partners and the legal
representatives.
B
Rita's liability in the partnership business after her resignation depends on the terms of the
partnership agreement, the nature of her resignation, and the applicable partnership laws in
Malaysia. It's important to note that partnership law is primarily governed by the Partnership
Act 1961 in Malaysia. Based on the information provided, here are some considerations:
2. Notice of Resignation:
If Rita properly provided notice of her resignation in accordance with the partnership
agreement or applicable laws, her liability should be limited to the partnership's financial
obligations up to the date of her resignation.
3. Continuing Liability:
If Rita continues to receive notices regarding the partnership's financial debts, there could be
a few reasons for this:
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Unsettled Debts at Resignation: If there were outstanding debts or financial obligations of the
partnership at the time of her resignation, Rita might still be liable for her share of those debts
up to the date of her resignation.
Partnership Agreement: The partnership agreement might contain provisions related to the
distribution of financial obligations and liabilities upon the resignation of a partner. If the
agreement holds her responsible for certain obligations even after resignation, she might have
ongoing liability.
4. Notice to Creditors: It's important for Rita to ensure that her resignation was properly
communicated not only to the other partners but also to the creditors of the partnership. This
is to prevent any misunderstandings or claims against her for debts incurred after her
resignation.
5. Dissolution and Winding Up: If the partnership is being wound up or dissolved after Rita's
resignation, she should not be liable for any debts incurred during the winding-up process, as
her liability would generally be limited to the partnership's debts up to her resignation.
6. Consult Legal Advice: Given the potential complexity of partnership matters and the
specific details of the situation, it's advisable for Rita to consult with a legal professional who
specializes in partnership law. They can review the partnership agreement, assess the
circumstances, and provide specific guidance based on applicable laws and the terms of the
partnership.
In summary, Rita's liability in the partnership business after her resignation depends on
various factors, including the terms of the partnership agreement and the nature of her
resignation. Consulting with a legal expert can help Rita understand her rights, obligations,
and potential liabilities in this situation.
Q4
A
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Under the Hire-Purchase Act 1967 in Malaysia, which governs hire-purchase agreements, a
hirer does have the right to terminate the agreement due to financial hardship. This provision
is outlined in Section 40 of the Hire-Purchase Act. Here's the procedure for such a
termination based on the Contract Act 1950:
5. Timing of Termination:
The notice of termination due to financial hardship should be given as soon as possible after
the hirer realizes their inability to continue with the payments. Delaying the notice might lead
to the accrual of additional charges or complications.
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It's important to note that while the Contract Act 1950 does provide some general principles,
the specific procedures and requirements for termination due to financial hardship are mainly
outlined in the Hire-Purchase Act 1967. If you're considering terminating a hire-purchase
agreement due to financial difficulties, it's advisable to refer to the relevant sections of the
Hire-Purchase Act and seek legal advice to ensure that you're following the correct
procedures and protecting your rights.
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The scenario states that Danny's car was repossessed by Sakan Finance in his absence. While
the Hire-Purchase Act does not explicitly address the presence or absence of the hirer during
repossession, it is generally advisable and considered best practice for the owner to repossess
the vehicle in a peaceful and non-confrontational manner, respecting the hirer's property
rights. It's also important to note that the repossession notice serves as a warning and an
opportunity for the hirer to address the breach before repossession occurs.
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