THE CONCEPT OF RULE OF LAW
- Parliament, the Government, the Courts and all
other Constitutional institutions can only do what the
law allows them to do
- Laws must be clear and made available to everyone
- Laws must be just, fair, and must respect human
rights and the independence of the Courts
- Everyone must obey the law
- Everyone is equal before the law
THE POWERS OF OUR GOVERNMENT
In Malaysia, the powers of government are not placed
in a single authority, but they are divided into three
authorities known as branches of government
namely:
- the legislative
- the executive
- the judiciary
DOCTRINE OF SEPARATION OF POWERS
- The Doctrine of Separation of Powers
propounded by the English philosopher, John
Locke, and a French writer, Baron de
Montesquieu, described the separation
between the legislative, executive and the
judiciary (L,E,J)
- This doctrine is about these three functions
of government to be discharged by
independent institutions from one another for
the purpose to avoid over concentration of
power in the hands of few and to ensure the
government is responsible and accountable (to
check and balance).
GENERAL FUNCTIONS OF THE GOVERNMENT BRANCHES
INTRODUCTION TO MLS Part 2 (Doctrine of separation)
YDPA – GENERAL FUNCTIONS
- The YDPA is the Supreme Commander of the armed forces of
the Federation (Art. 41)
- He is head of Islam in his home state, Malacca, Penang and in
the Federal Territories (Art. 3).
- The YDPA is the head of the Parliament, the Executive and the
Judiciary.
- To safeguard the special position of the Malays and natives of
Sabah and Sarawak (Art. 153).
YDPA – LEGISLATIVE DUTIES
- A Bill (draft of a law) passed by the Parliament must be presented
to the YDPA for his assent (consent; approval) before it can
become a law.
- The YDPA must give his Royal Assent to the Bill within thirty days
after of its presentation to him. Art. 66(4).
- If the YDPA fails to do so within the specified thirty days, the - Bill
in question shall become a law after the expiration of the thirty
days.
- The YDPA summons, prorogues and dissolves the Parliament.
(Art. 55)
YDPA – EXECUTIVE DUTIES
- According to Art. 39, executive authority is vested in the
YDPA.
- But he must act in accordance with the advice of the
Cabinet or of a Minister acting under the general authority of
the Cabinet - Art. 40(1).
LGISLATIVE : Enacts, amends, abolishes legislation (law)
EXECUTIVE : Handles and manages administrative matters
JUDICIARY : Executes the process of justice
THE YDPA AND THE DOCTRINE OF CONSTITUTIONAL
MONARCHY
- We have the constitutional monarchy in both state and federal
level.
- As opposed to absolute monarchy, constitutional monarchy
means the monarchs are bound by advice except in few areas
where royal discretion is explicitly permitted.
THE YDPA - STATUS
- Art. 32 (1) of the Federal Constitution provides that
the Yang di-Pertuan Agong is the ‘Supreme Head of
the Federation’.
- He takes precedence over all persons including the
rulers (Heads) of the other states.
- The government of Malaysia carries out its
business in the name of the YDPA.
- The office of Yang di-Pertuan Agong is both
hereditary and elective: -
# The YDPA must be one of the state rulers and state
rulers inherit their positions.
# It is elective because one of the nine state
rulers is elected from among themselves to hold
office for a term of five years.

YDPA – EXECUTIVE DUTIES
- He is allowed a certain amount of discretion (Art.
40(2):-
# the withholding of consent to a request for the
dissolution of Parliament
# the requisitioning of a meeting of the Conference of
Rulers.
# he can appoint the Prime Minister.
# But the person he appoints must be a member of the
Dewan Rakyat ‘who in his judgment is likely to
command the confidence of most of the members of
that House’ – Art. 43(2)(a).
- And the YDPA must follow the advice of the Prime
Minister when he appoints the Cabinet of Ministers –
Art. 43(2)(b)
YDPA: JUDICIAL DUTIES
- The YDPA has the power to appoint judges of the Federal
Court (the highest court), Court of Appeal and of the High
Courts – Art. 122B.
- However, the YDPA must follow the advice of the Prime
Minister and consult the Conference of Rulers before he
can exercise his power to appoint judges.
- As the head of the judiciary, the YDPA appoints all judicial
personnel except magistrates outside the Federal
Territories and justice is dispense in his name.
- He can grant pardons in relation to all offences
committed in the Federal Territories – Art. 42(1). The same
goes for the rest of the rulers in their own respective
states.
MLS 2
THE LEGISLATIVE (L)
COMPOSITION OF THE DEWAN RAKYAT - Doctrine of Parliamentary Democracy –The
(HOUSE OF REPRESENTATIVES) parliament of Malaysia represents the
democratic structure of the government and
reflects the people's aspiration through the
- The House of Representatives has 222 elected
elected representatives.
members and each member represents a
- It is the highest legislative body of the country
Parliamentary Constituency.
- The Parliament in Malaysia makes Federal laws,
- A General Election is held every five years to
makes amendments to existing Federal laws or
elect members of the House of Representatives.
abolish it, examines the government’s policies,
- Parties with the most elected members can form
approves the government’s expenditures and
a federal government to rule the country.
approves new taxes
- Eligibility to be an MP (Article 47,48 of FC):–
- Malaysia has a bicameral parliament [A
#Malaysian citizen
parliament with two houses] consisting of the
# Not less than 18 years old
the House of Representatives also known as the
# Sound mind
Lower House or Dewan Rakyat and House of
# Does not hold any office of profit
Senate also known as the Upper House or Dewan
# Not an undischarged bankrupt
Negara.
# Has been sentenced for an offence with an - It consists of three main components:
imprisonment of not less than a year or fine more
# The YDPA
than RM2000
# House of Senate/ the Upper House/ Dewan
# Must not be a member of both houses at the
Negara
same time.
# House of Representatives/ the Lower House/
Dewan Rakyat
- The Legislative power in Malaysia is divided
between the Federal and State legislatures.
COMPOSITION OF THE DEWAN NEGARA (THE SENATE) - Federal – Parliament, State – State Legislatives
Assembly.
- The Senate consists of 70 Senators. - Article 44 Fed Cons – Legislative branch of the
- The membership of the Senate is made up of two categories (Article 45 nation consists of: YDPA, House of
of FC):- Representatives (Dewan Rakyat) and Senate
- 26 members elected by the State Legislative Assembly to represent 13 (Dewan Negara)
states (each state represented by two members).
- 44 members appointed by His Majesty The King on the advice of the
Prime Minister, including two members from the Federal Territory of
Kuala Lumpur and one member each from the Federal Territory of Labuan
and Putrajaya.
- The tenure of office is a three-year term for a maximum of two terms.
- The life of the Senate is not affected by the dissolution of Parliament.
COMPOSITION OF THE DEWAN NEGARA
(THE SENATE)
- The Senate consists of 70 Senators.
- The membership of the Senate is made up
of two categories (Article 45 of FC):-
- 26 members elected by the State
Legislative Assembly to represent 13 states
(each state represented by two members).
- 44 members appointed by His Majesty The
King on the advice of the Prime Minister,
including two members from the Federal
Territory of Kuala Lumpur and one member
each from the Federal Territory of Labuan
and Putrajaya.
- The tenure of office is a three-year term
for a maximum of two terms.
- The life of the Senate is not affected by the
dissolution of Parliament.
- Eligibility to be an MP (Article 47 & 48 of
FC):–
# Malaysian citizen
# Not less than 30 years old
# Sound mind
# Does not hold any office of profit
# Not an undischarged bankrupt
# Has been sentenced for an offence with an
imprisonment of not less than a year or fine
more than RM2000
# Must not be a member of both houses at
the same time.
MLS 2
THE ROLE OF THE SPEAKER LAW MAKING PROCESS:
FROM A BILL TO AN ACT
- Art. 57(1)(a) states that the Dewan Rakyat ‘shall from - The highest legislature in Malaysia, the Parliament,
time to time elect as Yang di-Pertua Dewan Rakyat follows a certain procedure to make law.
(Speaker), a person who either is a member of the - It involves stages of process that turns a bill into an
House or is qualified for election as such a member. …’. act/statute.
- The Speaker acts as the Chairman of the Dewan - An Act is a Bill that has been approved by both the
Rakyat, presiding over meeting and debates held in the - House of Representatives and the Senate and been
House. given Royal Assent by His Majesty The Yang di-Pertuan
- The Dewan Rakyat cannot conduct any business while Agong.
the Speaker’s office is vacant unless that business is the - A bill is a proposed legislation to be considered by the
election of a Speaker Parliament.
- The Speaker should be completely impartial
(fair/neutral) and be above party politics.
- He calls on the members to speak and is responsible
for the maintenance of order during debates. TYPES OF BILL
- He can order MPs conducting themselves in a
- PUBLIC BILL
disorderly manner to withdraw.
# a bill dealing with public general interests as opposed to
- He can suspend a meeting of the House if there is
a private bill which is intended to affect or benefit some
general disorder among the members.
particular person, associate or corporate body
- GOVERNMENT BILL
# a bill that originates from The Executive
- PRIVATE MEMBER’S BILL
# a bill brought by a private member of parliament who is
not a member of the Executive.
- HYBRID BILL
# a bill that affects both private and public matters. In
other words, there is both a widespread public, possibly
national interest, but also a specific effect on particular
individual and organization who may be adversely
affected.
 SUGGESTING AND DRAFTING MLS 2 THE EXECUTIVE (E)
- A draft legislation is proposed by a certain The Executive consists of:-
minister, ministry or MP. - Conference of Rulers
- The draft legislation is usually formulated by - YDPA
the Attorney General Chambers of Malaysia, - Prime Minister and the Ministers = Cabinet
before being introduced as a bill into the - Public Services
Parliament. - Statutory bodies
- Commissions

THE FIRST READING

- Minister introduces Bill. GENERAL FUNCTION OF
- Reads out the title of the Bill. THE EXECUTIVE
- Names a day for the Second Reading of the
The Executive authority of the Federation is vested
Bill.
in The YDPA (Art. 39).
- No debate takes place at this stage.
Generally, the Executive govern the country based
- Bill is printed and published.
on laws made by the Legislative.
ROYAL ASSENT & GAZETTE The Executive also makes policies for the federation.
THE SECOND READING Each component of the Executive has their own
- If Bill is passed by both Houses, it is sent to the functions.
YDPA for the Royal Assent.
- Minister asks that the Bill be read a second
- The YDPA must give his assent within thirty
time.
days.
- This motion must be seconded. THE PRIME MINISTER
- If not, Bill becomes law after expiration of the
- The House debates the principles of the Bill.
thirty days – Art. 66(4A). - PM is appointed by YDPA [Art. 43(2)]
- Vote to allow Bill through or reject it totally.
Bill is published (gazetted) – becomes law. - PM IS the head of the Cabinet.
- Who can be appointed as PM? ME!! YES, MEEE!!!

THE COMMITTEE STAGE THE THIRD READING

- Bill is debated and amendments may be put to
- Committee of the whole House/ Select
a vote.
Committee considers Bill in detail.
- House either passes or rejects Bill.
- Amendments can be proposed.
- If the bill passed, it would go through to the
- Minister proposes to report Bill to the House.
Dewan Negara for the same process.
- If motion accepted, committee stage ends.
- If the Senate amends the Bill, the amended Bill
must be sent back to the Dewan Rakyat for
approval.
 THE CABINET
- Cabinet (Jemaah Menteri) consist of all ministers
appointed by YDPA from the Dewan Rakyat or Dewan
Negara [Art. 43(2)]
- It is the highest policy-making body in the federation.
- Control the functions of the various ministries that
govern the country.
- Members of the Cabinet must also be members of
Parliament (either the Dewan Rakyat or the Dewan
Negara). Ministers are appointed by the YDPA upon
the advice of the Prime Minister, which means that
they are selected by the Prime Minister.
Article 43 (2) of the FC says:
- The Cabinet shall be appointed as follows:
# the Yang di-Pertuan Agong shall first appoint as
Perdana Menteri (Prime Minister) to preside over the
Cabinet a member of the House of Representatives who
in his judgment is likely to command the confidence of
the majority of the members of that House; and
# he shall on the advice of the Prime Minister appoint
other Menteri (Ministers) from among the members of
either House of Parliament;
MLS 2
FUNCTIONS OF THE CABINET THE JUDICIARY(J)
- The judiciary is the third organ of government.
- To discuss, formulate and coordinate the government policies to
- Though there is no explicit mention of the
steer the country in the right direction politically, socially and
doctrine of separation of powers in the FC, the
economically. (The governmental machinery receives and
overall constitutional scheme is to devise
implements directives from the Cabinet. The machinery namely
institutional as well as functional separation of the
various ministries and statutory bodies. Each one has a specific
judicial organ of the state.
function to ensure the smooth operation of the country).
- To promote public confidence in our system of
- To monitor the effectiveness of the implementation of policies
justice, the independence of the higher ranks of
carried out by the governmental machinery.
the judiciary is guaranteed by the Federal
- To discuss various issues which affect the interests of the people
Constitution.
and strive to solve them (example: the implementation of the
- The main function of the Judiciary is to administer
Goods and Services Tax);
and uphold justice while guarding the FC against
To act as an advisory board to the YDPA.
excesses of the administration and unconstitutional
action.
- In countries with a written constitution, judges act
INDEPENDENCE OF THE JUDICIARY as the guardians of the constitution.
- In countries with unwritten constitutions, judges
- The independence of the judiciary is the cornerstone of a
democratic society and a safeguard for the freedom and rights of ensure that the government conducts it’s business
according to the law.
the citizen under the rule of law.
- The justice in a country can only exist if the judges can make
impartial decisions based solely on fact and law, without
interference, pressure or influence from other branches of
government.
- Independence of the judiciary can be seen from its position of
impartiality and its freedom from the other two branches of
government, L&E .
- Independence of the judiciary can be seen in the following
matters:-
# the procedure for the removal of superior judges (Art 125)
# A guarantee on the judges’ remuneration and terms of office (Art
125)
# Prohibition on parliamentary discussion on judges’ conduct (Art
127)
Power of the judges to punish contempt of court (Art 126)
 APPOINTMENT OF JUDGES
- Appointment of the Federal Court, CoA and High
Court is dealt by Art 122B
- The Chief Justice of the Federal Court, the
President of the CoA and Chief Judges of the High
Courts and other judges in the superior courts shall
be appointed by the YDPA acting on the advice of
the PM, after consulting with Conference of Rulers.
BETWEEN THE LEGISLATIVE AND THE
EXECUTIVE
- Parliament’s role is by no means restricted to law-
making. In addition, it is the forum in which the
Government is called to account through several
ways:-
- Question time;
- Control and pass the government budget through
the Dewan Rakyat;
- Examine the government’s expenditure through
Public Accounts Committee (PAC);
- Vote of confidence of the current government;
and
- Opposition can ask question on the government’s
action.
BETWEEN THE JUDICIARY AND THE
EXECUTIVE + LEGISLATIVE
The judiciary is an independent body to check and
balance the government is several ways:-
- Judicial review of the executive’s action
- Review the constitutionality of the law made by
the legislative
- Consultation
MLS 2
PROCLAMATION OF EMERGENCY
Article 150
(1) If the Yang di-Pertuan Agong is satisfied
that a grave emergency exists whereby
the security, or the economic life, or
public order in the Federation or any part
thereof is threatened, he may issue a
Proclamation of Emergency making
therein a declaration to that effect.
- During the period of the Emergency, the
YDPA may promulgate ordinances
(“Emergency laws”), if he is satisfied that
certain circumstances exist which render it
necessary to take immediate action (Article
150(2B).
- The Emergency laws are deemed valid even
if they are inconsistent with the FC (Article
150(6),(6A))
* Despite the subject subjective language of
the article, the declaration of emergency by
the YDPA is a non-discretionary power which
ought to be exercised on advice.
* Thus, Art 150 must be read together with
Art 40(1) and art 40 (1A), that is, YDPA must
act on advice of the cabinet or the minister.
* Related case : Stephen Kalong Ningkan
Government of Malaysia [1968] 11 MLJ 1999,
Teh Cheng Poh v PP [1978] LNS 202
Legislation against Subversion, Action Prejudicial to Public Order,
etc.
Art. 149 states as follows: -
‘(1) If an Act of Parliament recites that action has been taken or threatened
by any substantial body of persons, whether inside or outside the
Federation –
a) to cause, or to cause a substantial number of citizens to fear, organized
violence against persons or property; or
b) to excite disaffection against the Yang di-Pertuan Agong or any
Government in the Federation; or
c) to promote feelings of ill-will and hostility between different races or
other classes of the population likely to cause violence; or
d) to procure the alteration, otherwise than by lawful means, of anything
by law established; or
e) which is prejudicial to the maintenance or the functioning of any supply
or service to the public or any class of the public in the federation or any
part thereof; or
f) which is prejudicial to public order in, or the security of, the Federation
of
any provision of that law designed to stop or prevent that action is valid
notwithstanding that it is inconsistent with any of the provisions of Article
5, 9, 10 or 13, or would apart from this Article be outside the legislative
power of Parliament; and Article 79 shall not apply to a Bill for such an Act
or any amendment to such a Bill.
- Art. 149 allows Parliament to create laws that are inconsistent with Arts.
5, 9, 10 and 13. Examples of such laws include:
# The Security Offences (Special Measures) Act 2013; and
# The Dangerous Drugs (Special Preventive Measures) Act 1985.
WHAT IS THE EFFECT OF THE PROCLAMATION OF
EMERGENCY TO THE DOCTRINE OF SEPARATION OF
POWERS?
 STATE LIST FEDERAL LIST CONCEPT OF FEDERALISM BY
BASIC CONCEPT OF FEDERALISM
(LIST II, NINTH SCHEDULE) (LIST I, NINTH SCHEDULE EMERITUS PROF DATUK DR. SHAD
- involves a sharing of power between SALEEM FARUQI
the federal government and the MLS 3 - Islamic Law - External Affairs.
- Land - Defence of the 1. Association of States
states
- - Agriculture and Forestry Federation, 2. Dual Government
Both gments have the authority to
- Local Government. - Internal Security 3. Division of Powers
make laws and regulations and have
- State works and Water - Civil and Criminal law 4. Constitutional Guarantees
the authority to enforce them
- State Holidays - Federal Citizenship. 5. Autonomy
- Turtles and riverine - Finance, 6. Equality
DEFINITION OF FEDERALISM
- Fishing - Trade, Commerce and Industry. 7. Cooperative federalism
- Shipping, Navigation and Fishery, 8. Judicial Review
WHO MAKES LAWS FOR FEDERAL
- Communication and Transport.
AND STATE GOVERNMENTS? - Federal Works and Power.
CONCURRENT LIST FEDERAL AND STATE’S JURISDICTION
- Federal laws are made by federal (LIST II, NINTH SCHEDULE) - Surveys, inquires and Research.
Parliament, and normally propose by the - Education. i) Federal Laws:
- Social welfare; such as protection - Laws made by Federal Parliament and
Executive - Medicine and Health.
of woman, children and young applicable under the jurisdictions of the
- States’ laws make by State’s Legislative - Labour and Social Security.
person Federal government.
Assembly (SLA) or known as Dewan - Welfare of the Aborigines
- Scholarship ii) State’s Law:
Undangan Negeri (DUN) - Newspaper; Publications; Publishers;
- Protection of wild animals and - Law made by State Legislative Assembly
wild birds; National Parks - Printing and Printing Presses.
- Censorship (SLA) or known as Dewan Undangan
THE RELATIONS BETWEEN FEDERAL GOVERNMENT - Town and Country planning Negeri (DUN). It’s applicable within the
AND STATE GOVERNMENTS - Vagrancy and itinerant Hawkers respective state only.
- The very concept of federalism is that powers of a country - Public health iii) Federal Parliament can make laws stated
are shared between federal and state governments. in the first and third list of the Ninth
- Hence, the division of powers is one of the essential CAN THE FEDERAL PARLIAMENT MAKE LAWS N STATE Schedules of Federal Constitution [Art.
features of Malaysian government since Malaysia practices LIST? 74(1), Art.77].
Example:-
federal system of government. iv) State Legislature can make laws as per
- To ensure harmonious relationship between the two tiers the Second and Third List of the Ninth
Parliament can amend “the Malaysian Land Code” that give
of government and the smooth and effective functioning of Schedule [Art. 74(2), Art 77]
an overview guidelines matters pertaining land through out
administration, such relationship is governed by the Federal v) If any state law is inconsistent with the
the country to supersede state’s power though “land” is
Constitution. federal law, the federal law shall prevail and
under state’s jurisdiction.
- This relationship can be viewed in these two areas: the state law shall to the extent of the
i) Distribution of legislative powers; inconsistency, be void. (Art. 75).
ii) Distribution of executive powers.
FEDERALISM
 RESIDUAL MATTER DISTRIBUTION OF EXECUTIVE POWERS DEPARTURE FROM FEDERAL MODEL IN MALAYSIA
- Subject matter that not stated in i) Power of amending the Constitution
- Since the two tiers of government are sovereign, both of them are not only
Federal or State List ii) Emergency
empowered to make policies and laws within the sphere of federal
- SLA can make law on such subject iii) International Treaties
constitution but also to implement them [that is to say the ability to
matter (Art. 77) iv) Uniformity of laws
exercise executive power].
- Thus far, no such matters occur. v) Power to amend state constitution
- In general, pursuant to Article 80 of the FC, the federal government has
executive powers in matters within its legislative competency and the same vi) Acquisition of State land
applies to the states. vii) Financial resources
ISSUES BETWEEN FEDERAL AND
STATE GOVERNMENT’S - Notwithstanding the generality of Article 80 of the FC, in Article 95 (1) of
-
JURISDICTION the FC, the federal government may inspect any department or work of a
State Government with a view to making a report to the Federal
- ENVIRONMENT Government.
- Such power conferred to the Federal Government is subject to clauses (2)
- PETROLEUM
- LAND ACQUISITION and (3) of the same Article which are as follows:
- A report made under this Article shall be communicated to the State
- SHARIAH CRIMINAL
- JURISDICTION Government and laid before the Legislative Assembly of the State.
- It does not authorize the inspection of any department or work dealing
- GRANT
only with or carried on only with respect to matters within the exclusive
legislative authority of a State
- Notwithstanding the generality of Article 80 of the FC, in Article 95 (1) of
the FC, the federal government may inspect any department or work of a
MLS 3 State Government with a view to making a report to the Federal
Government.
- Such power conferred to the Federal Government is subject to clauses (2)
and (3) of the same Article which are as follows:
- A report made under this Article shall be communicated to the State
Government and laid before the Legislative Assembly of the State.
- It does not authorize the inspection of any department or work dealing
only with or carried on only with respect to matters within the exclusive
legislative authority of a State
 Law of Contract 6. Certainty 4. Capacity to
Contract Definition: Contract elements (6) (Part I) Certain, clear, relevant contract
agreement enforceable by law

S.2. a CA S.26 S.11 Unsound mind

Contract made 1. Offer 3. Consideration
S.2 (b)
oral Affin Credit v Yap Yuen Fui 2. Acceptance S.69 Minor
S. 26
writing Affin Credit v Yap Yuen Consideration exep it is Mohori Bibee v.
bilateral Fui made in writing and Dhurmodas Ghose
By conduct registered
A offer to B motor worth 1k S.4 (2)
S. 5(2) Withdraw / ** Terms of contract
unilateral notCommunicated S. 2(d)
notice Consideration can
5. Intention to create legal Carlil v Carbolic Smokeball move from a third Express-has been
relations Harvey v Facey
party specifically agreed upon by
S.4 (2) the parties -orally, in writing
Balfour v Balfour (never *Invitation to Treat Communicate or both.
intended it to have legal d / notice Consideration must be
force.) sufficient but need not be
Good display at window S.7 (a) adequate Implied-term that is read
Pharmaceutical v Boots Cash Absolute & unqualified into the contract by the
Merrit v Merrit.(the agreement Chappel v Nestle court.
Chemist Ltd
in writing showed that there Lau Bros v China Pacific Navigation
was an intention to create legal Advertisement
relations.) Counter offer Exclusion-The tour operator
Partridge v Crittenden will not be responsible for
Hyde v activities that are cancelled
Wrench due to bad weather and act
Menu (1840) of God.
Harvey v Facey
 Pengaruh salah
paksaan penipuan kesilapan
Law of Contracts Part 2 tidak wajar nyata

Vitiating Coercion Undue Fraud Misrepresent Mistake

factor Influence ation

1 Vitiating Factors
(faktor pengganggu)
Contract must be agreed
upon & enter freely
Effect

Section of CA
1950
Voidable

S15
Voidable

S16
Voidable

S17
Voidable

S18
Void

S21, S22,
S23
4. Injunction

2
Case Law Nuri Saw Gaik Tay Tho Low Kon Fatt Coutorier Is a court order to
Discharged of Contract Meaning: situation when defendant
Asia Beow Bok
(dilepaskan kontrak) contract has come to an • will be granted if the
end

1. Discharge by 2. Discharge by breach
performance (where a party fail to
(when both parties fulfill one or more of it
fulfilled their contractual contractual obligation)
obligation) • S40 CA 1950
• S38 CA 1950 • Have 2 ways:
• Case law : Cutter v i. Actual breach
Powell # contract due and one
• Four exception (partly party fails to carry his
enforceable): obligation
 Divisible contract ii. Anticipatory breach
 Substantial contract (dijangka)
 Acceptance and #one party, prior to date
partial performance of performance, informs
 Prevention of the innocent party, that
complete he does not intend to
performance complete the obligation.
(case law : Hochster v De
la Tour)
3
3. Discharge by
frustration
(where event outside the
control of either party
occurs, such that it is
impossible or illegal to
perform the contract)
• S57 CA 1950
• Case law : Taylor v
Caldwell
• S24 CA 1950 :
Agreement that are
forbidden by law,
fraudulent, immoral
are illegal
• Must occur through
no fault if either party
• Examples : War,
injuction, death,
government order
Contractual Remedies
(pampasan)
Meaning : legal solutions
that an innocent party is
entitled to, in the event
the defaulting party has
breach the contract
There are 6 remedies
1. Rescission (pemansuhan)
• Allow the innocent party to
terminate the contract
• Two context
i. One can rescind the
contract which was not
entered freely
ii. One can rescind the
contract where the other
party is in breach
• An innocent party who is
entitled to rescind has also
the option to affirm (not to
rescind)
damages isconsidered
2. Damages aka Money inadequate
• Is not to punish but to restore compensation for
innocent party financial position Plaintiff
• Granted as compensation for the • S50 to 55 SRA 1950
damage, loss or injury
• S74 to 76 CA 1950 sets out the
provision of such compensation
5. Restitution
• Not entitle to claim for every losses. • No one should be
Only can recover
made richer through
i. Losses that arises naturally from the
loss of another
breach of contract • Case law : Dream
ii. Losses that the party knew are likely
Property S/B V Atlas
to result from the breach
Housing S/B
• Who have breached the contract
should pay whatever amount
compensation stated in contract (S75 6. Quantum Merit
CA 1950) • If the promise accept
the partial
performance of the
contract, the other
3. Specific performance party may claim for
Is a discretionary court order requiring quantum merit ( a
defendant to perform promise in the reasonable sum in
contract respect of the benefit
• S11 Specific Relief Act 1950 conferred by the
• SP will be granted if the damages is partial performance
inadequate compensation for Plaintiff • Case law : Sumpter v
(S11 (2) SRA 1950) Hedges
TORT I
 Warning notice Exclusion clause interference was unreasonable
Southwark London Borough Council v Mills & ors
interference had caused
Notice Of Exclusion Indirect interference with the damage to the claimant
enjoyment of the land St Helen’s Smelting Co v
Definition of
Noise : Christie v Davey Tipping
occupier
Smell : Wheeler v JJ Saunders Ltd Could not prove damage
Definition of premises
Land : Davey v Harrow Corporation OG Heights v One Aug Land

Occupier liability
(FELDA) v Mariam
Duty of entrants
Invitees
Takong Tabari v Gov. of
Sarawak
Private
: Ang
TORTHock
II Tai v Tan Sum Lee & Anor
(OCCUPIER)
Nuisance
Licensees
Glasgow Corporation v Taylor Public
UDA Holdings Bhd v Koperasi
Pasaraya Malaysia Bhd & Other
Appeals
Trespasses
Rules Rylands v Fletcher
Contractual entrants Sathu v Hawthornden Rubber
Estate Cambridge Water Co Ltd v Eastern
MacLenan v Segar Counties Leather – foreseeability damage
object escaped : Ang Hock Tai v Tan Sum Lee &
Anor
 TORT III
TRESPASS TO LAND

CONCEPT OF POSSESSION
DEFINITION
- Possession means generally the
occupation pr physical control of the
- When an individual enters onto another individual’s land
land. The degree of physical control
without their permission or without a legal right to be on
necessary to constitute possession
the property.
may vary with the type of land.
- The tort may be committed only against a person who
- For trespass, a mere physical
has possession of the land on which the acts complained
presence on the land or actual
of are committed.
control of it does not amount to
- Therefore, a plaintiff in trespass is entitled, even though
possession. Example : temporary
he has sustained no actual loss, to recover loss.
lodgers, servants, workers, squatters
TRESPASS OCCURS WHEN:
- There exists an intention to trespass; or
- The act of entry is voluntary; or
- The interference to the plaintiff’s land is a foreseeable
consequence of the defendant’s act or omission.