Contract and Hire Purchase Act

1. What ar the principles at a lower plant the philosophy of binding precedent? When it comes to deciding on fortune, judges do non decide solely on their own. They be bound to go over certain evaluate principles which argon comm just now known as the doctrine of binding precedent. The doctrine of binding precedent required that like cases fixed alike. If a case now ahead the cost has facts and raises issues similar to those of a antecedently decided case, then the present case will be decided in the same way as the earlier atomic number 53.In this way, the earlier case, referred to as a precedent will have provided a legal posterior on which the latter case and subsequent cases could be decided. Generally, lower courts are bound to follow the decisions of courts higher than them in the same hierarchy. If the judge fails to follow a binding precedent, the decision of the said judge will be legally wrong and it whitethorn be reversed on draw in or over predominated in a later case. at a lower place is how The Doctrine operates in Malaysia. The court system in Malaysia, was last restructured by the Constitution (Amendment) act upon 1994.The present court structure, which has been in force since then, is as follows * The Federal hook stands at the apex of the Malaysian court system. It is headed by the Chief Justice. * Below the Federal tap is the court of jurisprudence of Appeal. This court is headed by the President of the hail of Appeal. * Below the administration of Appeal are two in high spirits Courts with coordinate jurisdiction. One is the High Court of Malaya which serves Peninsula Malaysia, while the other is the High Court of Sabah and Sarawak, which serves East Malaysia, i. e. Sabah and Sarawak.Each of the High Courts is headed by a Chief Judge. * Below the High Courts are the Subordinate Courts, the highest of which are the Sessions Courts, each of which is headed by a Sessions Court Judge. * Below the Sessions Courts are th e Magistrates Courts, each of which is presided over by a magistrate. mate to the Magistrates Court is the Juvenile Court (Court For Children) which is also presided over by a magistrate. * In Peninsular Malaysia (West Malaysia) thither are provisions for Penghulus Courts below the Magistrates Courts.These are headed by a penghulu or village headman. He has in truth limited jurisdiction and usually aims with local disputes in an in levelal manner. However, in practice, these courts hardly function. * There are also the Native Courts and the Syariah Courts. These courts operate only at the State level. The Native Courts exist only in Sabah and Sarawak and they deal with native properlys while the Syariah Courts deal with matters pertaining to Islamic law in the single states. 2. Does relieve amount to credenza? Kindly support your answer with designate.Silence does non necessarily indicate that there is bridal. However, there are exceptional instances where silence whitethor n amount to betrothal itself. The rationale behind this general rule is based on the idea that acceptance essential take or so form of objective manifestation of the offeringees intention though close to form of positive action. This is to ensure that no one should be satisfactory to enforce a condense upon an unwilling party. Based on sectionalization 3 of the Contract serve 1950 provides that acceptance essential be do in the manner prescribed by the offer.However, based on element 7(b) of the Contract spot 1950 states that when the acceptor deviates from the prescribed manner, the offeror essential non sustainment silent. If he does so and fails to insist upon prescribed manner, he is considered as having accepted the modified manner. For instance, refer to the below case of Felthouse v. Bindley (1826) facial expression Felthouse v. Bindley (1826) 11 CB (NS) 869 142 ER 1037 * The plaintiff had discussed with his nephew, tin croup, on the grease ones palms of a knight belonging to John, and wrote to him, pass to taint his horse and added, If I hear no more from him, I consider his horse is mine at ? 0 15s. However, John did non reply. * Six weeks later, John, whilst selling his faming stock, told the auction off offeer to keep the horse out of the bargains event as he planned to reserve the horse for his uncle. But the auctioneer sold it by mistake. The plaintiff then sued the auctioneer. * Held There was no acceptance of the plaintiffs proposal by John. Therefore, the plaintiff had no right to impose upon his nephew a deal of his horse by silence. However, there are exceptions to this, and a strong case to find for silence mounting to acceptance is when the offeree explicitly states that he wants his silence to be regarded as an acceptance. Using the supra case of Felthouse v. Bindley (1826), if the fact is twist by saying that complainant and John have communicated with each other about the change of the horse, and John told plaintiff that he should write him a none about the sale of the horse, and if Plaintiff does not receive any reply from him, Plaintiff can learn that John has agreed to the sales. In such an instance, should John not replying to Plaintiff, acceptance may be found and a binding, enforceable iron out may be found.Hence, communication becomes effective when it has been communicated. 3. A consideration must be competent. Do you agree with the statement? Is a contract without adequate consideration void? Support your answer with cases and statuses whenever necessary. I do not agree with the statement above as consideration need not be adequate scarcely must be sufficient. There is no requirement that the consideration must be at market place, as long as the promisee provides something in value in example ? 2 for an exchange of a car would be valid. The courts are not have-to doe with the adequacy.For example, we may refer to the below case of Chappell & Co v. clutch (1960) facial expression Chappell & Co v. Nestle (1960) Nestle had a special offer involving if client sent in 1s6d and three deep brown bars wrappers, they would get a record of a song called Rockin Shoes. Chappell & Co who owned the copyright of the song has brought an action for breaches of copyright and claimed royalties. Nestle willing to pay the royalties at 6. 25% of 1s6d however Chappell and Co argued that it should be include the chocolate wrappers although Nestle thrown it away after they veritable it.The court held that consideration must be sufficient but need to be adequate hence, the chocolate wrappers were part of consideration as it was part to increase sales and provided value. Therefore, Chappell & Co granted the injunction and Nestle could not sell the records. Under the Malaysian Law, explanation 2 to Section 26 of Contract meet 1950 provides that an bargain to which the consent of the promisor is not void plainly because the consideration is pathetic but the i nadequacy will be question by the court whether the consent of the promisor is freely given.The illustration (f) to Section 26 of Contracts Act 1950 clearly states the application of the rule A agrees to sell a horse worth RM1,000 for Rm10. As consent to the cartel was freely given. The covenant is a contract notwithstanding the inadequacy of the consideration. This was illustrated in the case of Phang Swee Kim v. Beh I Hock (1964), the respondents solicitor notified the appellate that she had trespassed on the said land and claimed for vacant possession and for an account of all income received by her from the land. In May 1963, the respondent instituted an action against her claiming the relief stated.The appellant counter-claimed for a declaration that she was empower to the said land. At the hearing, the appellant agreeable that there was an oral agreement made between her and the respondent in which the respondent agreed to transfer the land to her on payment of $ergocalci ferol in 1958. The learned trial judge accepted her evidence, but held that the agreement is void due to inadequacy of consideration. However, on appeal the Federal Court held that by lawfulness explanation 2 to Section 26 of Contracts Act 1950, there was adequate consideration as being no evidence of misrepresentation or fraud.The appellant was therefore en cognomend to the declaration seek by her. 4. Is an invitation to take an offer? Support your answer with cases, whenever necessary. An invitation to airiness is not the same as an offer. In order for binding contract to be formed, there must be an offer and an acceptance of that offer. An invitation to cope is sometimes mistaken for an offer. There are many similarities between an invitation to treat and offer, making the distinction can be difficult.A good way of aspect at the difference between the two terms is that an offer is a definite promise to be bound on specific terms, whereas an invitation to treat is only an in dication that someone is prepared to receive offers with the view of forming a binding contract. Thus, the distinction turns on the specificity of the offer and the degree of vagueness or conditionality devoted to it. The chief(prenominal) situation where an invitation is mistaken for an offer is in advertising. Advertising is not an offer, but rather an attempt to induce offers. Advertising is therefore classed under contract law as an invitation to treat.Only when the customer offers to pay for the goods at the publicize price has an offer been made. Similarly, the exhibition of good for sale can be confused as an offer when really it is an invitation to treat. When goods are displayed in a store this constitutes invitation to customers to make offers to purchase the items. Another situation is in auction sales. At an auction the bid itself is an offer then the auctioneer can either accept or reject the offer. Refer below heed of cases of invitation to treat - * An auctioneer inviting bids offers an invitation to treat when a bidder makes a bid.Case Payne v. Cave (1789) In this case, the defendant made the highest bid for the plaintiffs goods at an auction sale, but he withdrew his bid before the fall of the auctioneers hammer. It was held that the defendant was not bound to purchase the goods. His bid amounted to an offer, which he was entitled to withdraw at any time before the auctioneer signify acceptance by knocking down the hammer. * When a customer puts goods in basket, he or she makes an offer. Case Pharmaceutical Society of Great Britain v. Boots silver Chemists Lts (1952)Certain brand name medicines were displayed for sale in a self inspection and repair store. The issue arose as to when and where the sale of the medicines took place. The reason this was an important issue was because the pharmaceutics and Poisons Act 1933 S 18(1) provided that it was unlawful to sell such medicines unless the sale is make by, or under the supervision of , a registered pharmacist. If the sale took place when the customer put the medicines in her shopping basket the sale would not take place under the supervision of, a registered pharmacist because a pharmacist was present at the checkout desk.The issue here is before the court was when did the sale tale place? Was it when the customer put the medicines in her shopping basket or was it when the customer presented the goods to the cashier? The court held that the sale took place when the customer presented the goods to the cashier. The placing of the medicines in the shopping basket has no contractual significance. It was not even an invitation to treat since there had been no communication between the shopper and the shop. The contract would only be made at the cashiers desk. The display of goods in a shop by shopkeeper is an invitation to treat. Case Fisher v. Bell (1961) A shopkeeper was convicted of offering for sale a film lingua contrary to the Restriction of Offensive Weapo ns Act 1959 S 1(1) he had displayed the knife in his shop window. The shopkeeper appealed. The issue here is, before the court was whether the shopkeeper was offering a flick knife for sale. On the appeal the shopkeeper was acquitted of offering a flick knife for sale. Before the magistrates court he was actually convicted of offering the knife for sale.This case shows that goods on display are inviting customers to make an offer to buy them from the shopkeeper. In other words goods on display in a shop are an invitation to treat not an offer to buy. * Supply of cultivation is an invitation to treat. It is considered to be in the process of negotiation and not a shape offer to sell. Case Harvey v. Facey (1893) The prospective vendee, Harvey, sent a telegram to the trafficker Facey, asking Will you sell us Bumper house Pen? wire lowest cash price. Facey responded by telegram Lowest price for Bumper Hall Pen ? 900. Harvey later eplied We agree to buy Bumper Hall Pen for the add up of nine hundred pounds asked by you. Please send us your title deed in order that we may get early possession, but received no response. Harvey brought an action to enforce the contract. The court held a contract for the sale of the property could only have been concluded of Facey accepted Harveys final telegram. Facey had not said that he would sell the property and had merely stated the lowest price he was willing to sell at. Harvey could not imply Faceys telegram was an offer to sell as this must be expressy given.In essence, a price quotation of itself does not amount to an offer but is merely an invitation to treat. An invitation to treat is quite literally an invitation to another party to negotiate, which does not suggest an intention of being bound. Hence, an invitation to treat is a musical instrument to get negotiations going and show the terms which one party may be willing to accept, as opposed to an offer in which one party is prepared to be legally bound by upo n acceptance. 5. What is the interpretation of contract of sale of goods under the law?A contract of sale of goods is a contract whereby the seller agrees to transfer the property in goods to the buyer for a consideration called the price, consisting wholly or partly of money. Where, by virtue of one or more contracts, a somebody has agreed for value to bail goods to a bailee on such terms that the property in the goods will or may at the option of the bailee pass to the bailee then, for the purposes of this Act, that person is deemed to have agreed to transfer the property in goods to the bailee, and the bailor shall be deemed to be the seller and the bailee shall be deemed to be the buyer.There may be contract of sale between one part owner and another. Thus, a contract of sale may be absolute or conditional. 6. Does the choose corrupt Act cover all enlist purchase transaction? The Hire procure Act does not in actuality cover all hire-purchase transaction. Hire Purchase agree ment is used by Financial Institutions to fund the purchase of consumer goods (goods purchased for personal, family and household purposes), vehicles and other business equipment and industrial machinery.In Malaysia, the legislation governing hire purchase transaction is the Hire Purchase Act 1976, which came into force on 11 April 1968 after hire purchase became popular in the learning of expensive consumer goods such as cars, business equipment and industrial machinery. In revere of goods not specified in the First Schedule of the Hire Purchase Act, the parties are free to contract outside the provision of the Act or agree to be bound by the provisions. However, the First Schedule may be amended by the Minister concerned from time to time. 7. i) What is the main legislation governing confederacy in Malaysia? In Malaysia the governing law that addresses partnership matters is provided in the Partnership Act 1961 (Act 135) (ii) What is the statutory definition of partnership as p rovided under the Malaysian Law? Partnership is defined by Section 3(1) of the Partnership Act 1961 as the relation, which subsists between persons carrying on a business in common with a view of profit. No person may be a partner with himself. There must be at least two or more persons to form a partnership.