Chapter 1

Written law – Known as statute law that enacted by a governing body or body that having the
authority to make law. It comprises of constitution, legislation and subsidiary legislation.

Unwritten law – Known as non-statutory law. It means that these laws are not made by
Parliament and it is not part of constitution. It comprises of English law, decisions of the
superior courts and local customs.

Federal constitution – Federal constitution is the supreme law of the country and applies to
all states in the federation. The federation comprises of 13 states controlled by a central
government. It lays down the powers of the Federal and State governments and also enshrines
the basic of fundamental rights of the individual. Any law that goes against the constitution is
invalid

Judiciary – The constitution states that the judiciary is to carry out the judicial powers. The
judiciary decide on civil and criminal cases, interpret the federal and state constitution and
legislation, determining whether legislative and executive acts are legally correct and apply
the law made by the legislative power

Subsidiary legislation – Interpretation Act 1967 states that subsidiary legislation means any
proclamation, rule, regulation, resolution, order, notification or other instrument made under
any Ordinance and having legislative effect.

Advantages of subsidiary legislation FLAS

Flexibility and speed of making law – The ability to accommodate the changing needs of
society quickly
Less time required to enact such law – Parliament’s time is limited, and as such Parliament
cannot make laws on every details
Ability to handle emergency situations – Majlis keselamatan negara made new SOP and
requirements for vaccination during Covid-19
Specialized expertise – Since not all members of Parliament are experts in that particular
area, it would be better for the experts in the respective government department to make the
rules in those areas

Disadvantages of subsidiary legislation TTO

-There is too much power in the hands of non-elected civil servants who are not directly
accountable to either Parliament or the other people
-The function and power to make law which is given to parliament is transferred to non-
elected government bodies, raising the risk of misuse of power
-Over delegation may result in the legislature abdicating - 过度授权可能会导致立法机关推
卸责任

Hierarchy of courts
Superior courts
i) Federal court
ii) Court of appeal
iii) High court of Malaysia / high court of Sabah & Sarawak
Subordinate courts
iv) Sessions court
v) Magistrates court
Courts in Malaysia are structured in a hierarchy with superior courts such as the Federal
Court, Court of Appeal, and High Courts, and subordinate courts like Sessions Courts and
Magistrates Courts. The principle of binding judicial precedent states that decisions made by
superior courts must be followed by lower courts. This hierarchy allows for appeals and
ensures that cases can be reviewed if a party believes there has been an injustice. It also
allows for specialization among courts, with higher courts handling more serious cases and
lower courts dealing with less significant matters.

Judicial precedent - Judicial precedent refers to judges following past decisions with similar
facts. It's based on the principle of stare decisis, meaning lower courts must apply legal
principles from higher courts' past cases. This ensures consistency and predictability in the
law.

Advantage CUF
Certainty – pass resolutions provide guidance which allow lawyers to predict case outcomes
and advice clients accordingly
Uniformity – every person is treated equally
Flexibility – new principles of law can be established from the situation

Disadvantage
Judges must keep themselves updated with the ever increasing bulk of new reported cases

Methods of Interpretation of statute LMGP

Literal rule – The rule states that the words in question must be given its literal or ordinary
meaning. The duty of the court is to interpret the words that the legislature has used. It is not
the duty of the court to “fill in the gaps in the law”

Fischer v Bell [1961]

The law said it was illegal to 'letterfor sale' certain weapons like flick knives. A shopkeeper
had a flick knife in their shop window with a price tag. In contract law, putting something in
a shop window is seen as inviting others to make offers, not actually offering to sell. So,
according to the literal rule, the shopkeeper hadn't technically offered to sell the knives and
wasn't guilty of the offence. Therefore, they were not held responsible for the crime

Mischief rule – The rule states that the word in the statute are unclear with multiple meaning.
The court has to determine the right meaning to give the right effect to the law

Smith v Hughes [1960]

The law said prostitutes couldn't solicit "in a street." Prostitutes started soliciting from their
windows or balconies to avoid breaking the law. The court said "in a street" included
soliciting from windows and balconies because the law aimed to stop people from being
bothered on the street.

Golden rule – This rule lets judges change the words of a law if there's a mistake that leads
to something ridiculous happening.

Adler v George [1964]

The law said that obstructing 妨碍 HM Forces in the 'vicinity of a prohibited area' was an
offense. Adler was arrested for obstructing forces while inside a prohibited area. According
to the Literal Rule, Adler wasn't considered to be 'in the vicinity of the area' but rather 'in the
area,' so he wasn't breaking the law. However, the Golden Rule was used to broaden the
meaning of 'vicinity'邻近 and prevent a potential absurd outcome.防止出现潜在的荒谬结
果。

Purposive approach – the rule states that sometimes the court is faced with difficulty
deciding because some words used in the statute did not give a clear meaning and intention of
the law.

United Hokkien Cemeteries, Penang v Majlis Perbandaran Pulau Pinang [1979]

The court had to determine if a columbarium, a place for storing ashes, could be considered a
place of worship according to a local law. The court decided it could, since honoring the
deceased could be seen as a type of religious worship.

Chapter 2

Offer – S.2(a) defines an offer is when someone tells another person that they're willing to do
or not do something, hoping to get the other person's agreement to it.

Bilateral offer – Where the offer is made to a particular person or group of persons. The
identity of the offeror and the identity of the offeree are known to the parties.

Unilateral offer – Where the offer is made to the world at large. Only the identity of the
offeror is known as in. For example Carlill v Carbolic Smokeball Co.Ltd.

In the case of Carlill v Carbolic Smokeball Co. Ltd., the company advertised that they would
offer £100 to anyone who used their product as directed and still contracted influenza. Mrs.
Carlill, having followed the instructions and fallen ill, sued the company for the promised
reward. The court determined that the advertisement constituted a unilateral offer to the
public, allowing anyone to fulfill the conditions outlined in the advertisement and claim the
reward.

Offer must be communicated

How can offer be made?
S.9 Express – made in words whether oral or written
S.9 Implied – made other than words, body language

How is the communication of offer made?

S.3 By the act of the proposer by which he intends to communicate such proposal or which
has the effect of such communication

When is the communication of offer complete?

S.4(1) When it comes to the knowledge of the person to whom it is made, offeree

Invitation to treat – An invitation to treat is a way to encourage others to make an offer, but
it doesn't create a binding agreement on its own. One party is extending the invitation, and it's
up to the interested person to make the actual offer
Example of invitation to treat
 Display of goods
Pharmaceutical Society of Great Britain v Boots Cash Chemist Ltd
the court ruled that displaying goods is just an invitation for customers to make an offer. The
actual proposal happens when the customer brings the item to the cashier. When the cashier
rings up the sale, it's considered acceptance, and the contract of sale is formed at the cashier's
desk. Following the principle, the shop owner had not made any unlawful sale.

Fischer v Bell
Lord Parker stated that when a shop displays an item with a price tag, it's not an offer to sell
but rather an invitation for customers to make an offer. Acceptance of the offer, therefore,
doesn't create a contract.

 Advertisements
Partridge v Crittenden
The appellant placed an ad in a bird magazine offering Bramble Finch cocks and hens for 25s
each. The ad didn't explicitly say it was an offer for sale. He was charged for unlawfully
selling wild live birds, but it was ruled that there was no offer for sale. When it comes to ads,
they're often seen as invitations for offers, not offers themselves.

Majumder v AG of Sarawak
An ad in a newspaper for a doctor's position was seen as an invitation for job applications,
not an actual job offer.

 Price list, request for price quote, supply of information

Harvey v Facey
Party P inquired about buying Bumper Hall Pen through telegraphs, which were seen as
invitations to treat. Party D responded with the lowest price, £900, also considered an
invitation to treat. Party P then expressed agreement to buy at that price and asked for title
deeds, constituting an offer. However, since there was no further communication, the court
ruled there was no contract. The telegrams weren't offers but indications of the minimum
price, and Party D's response was merely informative.

 Auctions
Payne v Cave
The defendant made the highest bid at an auction but withdrew it before the auctioneer
accepted it by the fall of the hammer. The court ruled that the bid itself was an offer, which
the auctioneer could either accept or reject by the fall of the hammer. Since the bid was
withdrawn before acceptance, no contract existed.

Harris v Nickerson
The plaintiff attended an auction where certain goods, including office furniture, were
advertised for sale. However, the furniture the plaintiff was interested in was withdrawn. The
plaintiff sued for the loss of time and expenses. The court determined that the advertisement
for the sale was just an intention to hold a sale and not an offer that could be accepted to form
a binding contract.

 Tenders
The party inviting for bids or tenders for the supply of goods or services is no making an
offer but an invitation.
The party who submits his bids or tenders is the one making the offer.
It is now for the other party to accept of reject the offer. If the offer is accepted, then there
will be a binding contract.

Acceptance – S.2(b) defines acceptance to mean when the person to whom the proposal is
made signifies his assent…the proposal is said to be accepted
(absolute and unqualified / prescribed manner)

S.7(a) states , to convert a proposal into a promise the acceptance must be absolute and
unqualified. If the parties are still negotiating, there is no agreement yet or if any new terms
or conditions are brought into the picture then there would be no acceptance

Situation where acceptance is not absolute and is qualified:

Counteroffer – A counteroffer is no acceptance. The effect of a counter offer is that it rejects
or destroys the original offer and replaced it with a new offer, this time, from the other party
who was offered originally

Hyde v Wrench
6 June – D offered to sell his estate to P for £1000.
8 June – P replied that he will pay £950 – here P made a counter-offer.
7 June – D refused to accept P’s proposal.
When D refused, P wrote again this time agreeing to pay £1000 – this is an attempt
to revive the original proposal. It was held that no acceptance had taken placed because P’s
letter of 8 June amounts to a rejection of the original proposal which could not be revived.

Acceptance in prescribed manner

Consideration – S.2(d) defines consideration to mean when, at a desire of the promisor, the
promisee or any other person, has done/abstained from doing, or does/ abstains from doing or
promises to do/ abstain from doing, something, such act/ abstinence/ promise is called a
consideration for the promise

Past consideration - This is an agreement to compensate for a past act carried out at the
request of the promisor.
X lost his camera and ask Y to help find it. Y finds and returns X’s camera and in gratitude X
promise to give Y a reward. Here Y performed the act of finding the camera at the request of
X, and the promise of reward made by X was after the act of finding the camera was done.

S54

Consideration need not be adequate

There is no requirement that the consideration must be market value, providing something of
value e.g., RM1.00 in exchange for a house would be valid. The courts are not concerned
with whether the parties have made a good or bad bargain.

Phang Swee Kim v Beh I Hock

Respondent agreed to transfer to the appellant a parcel of land on payment of RM500 when
the land was subdivided although the land was worth much more. The respondent later
refused to honour the promise, contending that the promise was unenforceable. The Federal
Court held that although the consideration was inadequate, the contract was valid.
Natural love and affection is valid consideration
An agreement on account of natural and affection does not require any consideration to be a
valid contract.
S. 26(a) states that an agreement without consideration is void, unless it is an agreement on
account of natural love and affection.
However, it is only valid if it has the following requirements:
i. it is express in writing;
ii. it is registered (if applicable); and
iii. it is between parties standing in near relations to each other.
S. 26 Illustration (b): A, for natural love and affection, promises to give his son B, RM1000.
A puts his promise to B into writing and registers it under the law for thetime being in force
for the registration of such documents. This is a contract.

Intention to create legal relation (domestic)

Domestic, family and social agreements have no intention to create legal relations where
the parties are involved in an agreement concerning family, domestic or social matters unless
it can be proven otherwise. However, even though the parties to the contract have such a
relationship, they still would be presumed to have the intention if the nature of the agreement
is of a commercial one.

2 examples of domestic, social and family agreements are:

Between spouses 配偶

Balfour v Balfour
D was a civil servant in Ceylon and while on leave in England, he promised to pay his wife a
monthly allowance as maintenance. The wife was unable to accompany her husband due to
poor health. D defaulted and the wife sued for breach of contract.

The court held it was not a legally enforceable agreement because it was presumed that the
parties (spouses) did not intend that they should be attended by legal consequences.

However, in the case of Meritt v Meritt [1970], the presumption was rebutted the court held
that there was intention to create legal relations between husband and wife and the agreement
was enforceable because:
– It was made when the parties were not living together under ordinary circumstance and;
– The wife, in performing the act of paying the mortgage for the property, had given ample
consideration. (She had honoured the promise of the husband. She was not getting the
property for free; she was paying a price for it).
– The agreement was made in writing.

Between friends/ relatives

Choo Tiong Hin & Ors v Choo Hock Swee (1959) (agreement between relatives)
– Husband and wife lived in a house on a farm in Singapore in 1916. They had 2 daughters, 5
adopted sons. Most of the family members, including their grandchildren lived together on
the premises. Those who were of aged worked on the farm and in other business enterprises.
In 1953 the wife died. In 1955, following numerous family quarrels, the husband left the
family home, and later sued 3 of his adopted sons and 2 of his grandsons for possession of the
farm and the family house and as well as damages for trespass.
– The defense contended that there were contracts between the man and the three adopted
sons whereby the latter agreed to work for the former for the acquisition of wealth to be
administered by him. They claimed that having been adopted and having helped in the farm
there was an intention to create legal relations.
– The court held that the agreements were not intended to create legal relations and
were therefore not binding in law as contracts.

However, the presumption was rebutted in Simpkins v Pays (Agreement between friends
where intention to create legal relations is present)
• Simpkins v Pays
– Here, P had been living for over 4 years with the defendant, an elderly woman, and her
grand-daughter as a lodger. The three of them bought some tickets and entered the contest,
which was taken out in the defendant’s name. All expenses towards the entry were shared
amongst them. One of the entries won a prize of £750, but the defendant refused to share it
with the other two, P brought an action over her share of £250.
– Court held that this was a joint enterprise to which each contributed to the expectation of
sharing any prize that was won. Therefore, there was an intention to create legal relation.