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COMMERCIAL LAW MGM 3351

COMMERCIAL LAW MGM 3351. DR SUHAIMI AB RAHMAN DEPARTMENT OF MANAGEMENT AND MARKETING FACULTY OF ECONOMICS AND MANAGEMENT UPM LABORATORY OF POLICY AND MANAGEMENT HALAL PRODUCTS RESEARCH INSTITUTE UPM Tel: 89467623 / 89417344 email: suhaimi@econ.upm.edu.my. WHAT IS LAW?.

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COMMERCIAL LAW MGM 3351

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  1. COMMERCIAL LAW MGM 3351 DR SUHAIMI AB RAHMAN DEPARTMENT OF MANAGEMENT AND MARKETING FACULTY OF ECONOMICS AND MANAGEMENT UPM LABORATORY OF POLICY AND MANAGEMENT HALAL PRODUCTS RESEARCH INSTITUTE UPM Tel: 89467623 / 89417344 email: suhaimi@econ.upm.edu.my

  2. WHAT IS LAW? LAW IS A SET OF RULES THAT GOVERN AND REGULATE HUMAN BEHAVIOUR

  3. JUSTICE JUSTICE IS AN ABSTRACT IDEA OF RIGHT AND WRONG, FAIRNESS AND EQUALITY

  4. JUSTICE ETHICS LAW MORALITY

  5. MALAYSIAN LEGAL SOURCES • WRITTEN LAW • UNWRITTEN LAW

  6. WRITTEN LAW • FEDERAL CONSTITUTION • FEDERAL LEGISLATION • STATE LEGISLATION • SUBSIDIARY LEGISLATION

  7. FEDERAL CONSTITUTION • SUPREME LAW OF THE LAND • PRESCRIBES THE RELATIONSHIP BETWEEN STATE AND FEDERAL

  8. NINTH SCHEDULE • LIST I :- FEDERAL LIST • LIST II :- STATE LIST • LIST III :- CONCURENT LIST

  9. FEDERAL LEGISLATION • LAWS MADE BY THE PARLIAMENT • BEFORE INDEPENDENT ALL FEDERAL LEGISLATIONS WERE KNOWN AS ORDINACES

  10. THE PROCESS OF MAKING RWU POLICY INTO AN ACT OF PARLIAMENT POLICY CABINET PAPER MINISTER WILL BRING THE PAPER TO THE CABINET CABINET MEETING APPROVAL FROM THE CABINET AG WILL PREPARE A DRAFT TO BE TABLED IN PARLIAMENT • APPROVAL FROM THE PARLIAMENT • (LEGISLATIVE PROCESS) • HOUSE OF REPRESENTATIVE • HOUSE OF SENATE • THE KING GAZZETTED

  11. LEGISLATIVE PROCES

  12. STATE LEGISLATION • LAW MADE BY THE STATE • KNOW AS ENACTMENT EXCEPT SARAWAK

  13. SUBSIDIARY LEGISLATION • RULES • REGULATIONS • BY-LAWS • ORDERS

  14. SUBSIDIARY LAW THE SUBSIDIARY LAW CAN ONLY BE MADE IF THE RESPECTIVE ACT (KNOWN AS ENABLING ACT) GIVES POWER

  15. EMPOWERING CLAUSE THE PROCESS OF MAKING RWH BY-LAWS: A TYPICAL TCPD EXAMPLE TECHNICAL COMMITTEE DRAFT LEGAL DEPARTMENT THE DRAFT WILL BE DISCUSSED AT THE JAWATANKUASA PERLAKSANAAN AKTA MEETING THE DRAFT WILL BE DISCUSSED AT THE TCPD STATE DIRECTORS MEETING THE DRAFT WILL BEDISCUSSED AT THE JAWATANKUASA PERANCANGAN & PEMBANGUNAN (TCPD) THE DRAFT WILL BE DISCUSSED AT THE JAWATANKUASA PERANCANGAN & PEMBANGUNAN (MINISTRY) REVISED BY LEGAL ADVISOR THE DRAFT WILL BE PRESENTED AND APPROVED AT THE MAJLIS PERANCANGAN FIZIKAL NEGARA MPFN WILL HAND THE DRAFT TO THE STATE AUTHORITY MPFN WILL HAND THE DRAFT TO THE MINISTER LEGAL ADVISOR (STATE ) WILL GAZZET THE DRAFT LEGAL ADVISOR (MINISTRY) WILL GAZZETT THE DRAFT BY-LAWS

  16. CONTROLS OVER SUBSIDIARY LAW • CONSULTATION • PUBLICITY • PARLIAMENTARY CONTROL • JUDICIAL REVIEW

  17. JUDICIAL DECISION NEW PRINCIPLES CREATED IN COURT

  18. JUDICIAL DECISION • PREVIOUS DECISION MADE BY PREVIOUS COURT IN A SIMILAR FACT • FAILURE TO FOLLOW THE PRECEDENT WOULD RESULT TO REVERSE ON APPEAL • PRECEDENT IS OBTAINED FROM THE DECISION OF THE SUPERIOR COURT

  19. HOW JUDICIAL PRECEDENT WORKS • THE COURT WILL ONLY FOLLOW THE PRECEDENT WHEN THE FACT IS SIMILAR • IF THE FACT IS NOT SIMILAR THE COURT WILL DISTINGUISH THE CASE AND NEED NOT TO FOLLOW THE EARLIER DECISION • THE COURT CAN OVERULE THE PRECEDENT IF IT IS PROVED THAT THE PREVIOUS DECISION WAS WRONG

  20. ENGLISH COMMON LAW AND EQUITY S 3(1)(a) CIVIL LAW ACT 1956, ‘ THE COURT SHALL IN WEST MALAYSIA OR ANY PART THEREOF, APPLY THE COMMON LAW OF ENGLAND AND THE RULES OF EQUITY AS ADMINISTERED IN ENGLAND ON THE 7TH APRIL 1956

  21. ENGLISH COMMON LAW AND EQUITY ANY CHANGES OR DEVELOPMENT AFTER 7TH APRIL 1956 THE ENGLISH COMMON LAW AND EQUITY WILL NOT BECOME THE LAWS OF MALAYSIA, IT ONLY ACTS AS PERSUASIVE AUTHORITY

  22. ENGLISH COMMON LAW AND EQUITY TWO CONDITIONS FOR THE APPLICATION:- • ABSENCE OF LOCAL STATUTE COVERING THE SAME MATTER • ONLY IF SUITED TO LOCAL CIRCUMSTANCES

  23. ENGLISH COMMERCIAL LAW S 5(1) CIVIL LAW ACT 1956, ‘IN ALL QUESTIONS OR ISSUES WHICH ARISE OR WHICH HAVE TO BE DECIDED IN THE STATES OF WEST MALAYSIA OTHER THAN MALACCA AND PENANG WITH RESPECT TO THE LAW OF PARTNERSHIPS, CORPORATIONS, BANKS AND BANKING, PRINCIPALS AND AGENTS, CARRIERS BY AIR, LAND AND SEA, MARINE INSURANCE, AND WITH RESPECT TO MERCHANTILE LAW GENERALLY, THE LAW TO BE ADMINISTERED SHALL BE THE SAME AS WOULD BE ADMINISTERED IN ENGLAND IN THE LIKE CASE AT THE DATE OF THE COMING INTO FORCE OF THIS ACT, IF SUCH QUESTION OR ISSUE HAD ARISEN OR HAD TO BE DECIDED IN ENGLAND, UNLESS IN ANY CASE OTHER PROVISION IS OR SHALL BE MADE BY ANY WRITTEN LAW’

  24. CUSTOMS EACH RACIAL AND RELIGIOUS GROUP IS GOVERNED BY THEIR OWN SET OF PERSONAL LAWS, EG. ISLAMIC LAW FOR MUSLIM, IRRESPECTIVE OF THEIR ETHNICITY, NATIVE LAW FOR THE NATIVES (KHADAZAN, BIDAYUH, MURUT, ETC.) CHINESE AND INDIAN CUSTOMARY: PREVIOUSLY JUDICIAL RECOGNITION ON VARIOUS CUSTOMARY LAW ON MARRIAGES LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976 GOVERNS MARRIAGES AMONG NON-MUSLIM (ABOLISHMENT OF POLYGAMOUS MARRIAGES)

  25. LAW OF CONTRACT: SOURCES • STATUTES • CONTRACT ACT 1950 • CASE LAWS • CASES DECIDED IN COURTS • ENGLISH COMMON LAW • BEFORE 7TH APRIL 1956

  26. LAW OF CONTRACT: INTRODUCTION CONTRACT IS THE NUCLEUS OF ALL COMMERCIAL TRANSACTIONS

  27. WHAT IS CONTRACT? CONTRACT IS AN AGREEMENT WHICH IS ENFORCEABLE IN LAW

  28. WHAT IS AGREEMENT MEETING OF THE MINDS TWO OR MORE PERSONS ARE SAID TO CONSENT WHEN THEY AGREE UPON THE SAME THING IN THE SAME SENSE CONSENSUS AD IDEM

  29. … BUT … NOT ALL AGREEMENTS ARE CONTRACT. THERE ARE SOME AGREEMENTS WHICH ARE NOT CONSIDERED AS CONTRACT EG. SOCIAL AGREEMENTS

  30. AGREEMENTS WHICH ARE CONTRACT • PROPOSAL • ACCEPTANCE • CONSIDERATION • INTENTION TO CREATE LEGAL RELATIONSHIP • COMPETENCE • FREE CONSENT

  31. PROPOSAL A PROPOSAL IS AN ACT THAT SIGNIFIES A PERSON’S WILLINGNESS TO DO OR TO ABSTAIN FROM DOING SOMETHING WITH A VIEW TO OBTAINING THE ASSENT OF ANOTHER

  32. PROPOSAL IT IS AN OFFER OR A PROMISE TO BE BOUND BY HIS/HER TERMS IF THEY ARE ACCEPTED BY THE OTHER

  33. LEGAL PRINCIPLE IT IS UPON THIS BASIS THAT A PROPOSAL SHOULD BE MADE CLEAR AND DEFINITE A PROPOSAL SHOULD NOT BE MADE IN UNAMBIGUOUS STATEMENT IF BARGAINING IS STILL POSSIBLE IN THE ARRANGEMENT THE SUPPOSED PROPOSAL SHOULD NOT BE CONSIDERED AS PROPOSAL AT ALL

  34. PROPOSAL THE STATEMENT SHOULD SHOW A CLEAR WILLINGNESS TO BE BOUND BY HIS/HER TERMS IF ACCEPTED BY THE OTHER PARTY

  35. A RESPONSE TO A REQUEST FOR INFORMATION HARVEY V FACEY PLAINTIFF: WILL YOU SELL US A BUMPER HALL PEN? TELEGRAPH LOWEST CASH PRICE. DEFENDANT: LOWEST PRICE FOR BUMPER HALL PEN, GBP 900

  36. INVITATION TO TREAT INVITATION TO TREAT IS AN ACT TO INVITE OTHERS TO MAKE AN OFFER INVITATION TO TREAT IS NOT A PROPOSAL IT WILL NOT RESULT TO A CONTRACT IF ACCEPTED BY OTHERS

  37. EXAMPLES OF INVITATION TO TREAT • AUCTIONS • PAYNE V CAVE • ADVERTISEMENTS • COELHO V THE PUBLIC SERVICES COMMISSION • ITEMS DISPLAYED IN SHOPS • PHARMACEUTICAL SOCIETY OF GREAT BRITAIN V BOOTS CASH CHEMIST LTD

  38. PROPOSAL: LEGAL PRINCIPLE A PROPOSAL CAN BE ADDRESSED TO A PARTICULAR PERSON OR TO A GENERAL PUBLIC • BOULTON V JONES • CARLILL V CARBOLIC SMOKE BALL

  39. LEGAL PRINCIPLE A PROPOSAL MAY BE WRITTEN, SPOKEN OR IMPLIED FROM CONDUCT

  40. COMMUNICATION OF PROPOSAL EVERY PROPOSAL MADE SHOULD BE COMMUNICATED TO THE OTHER PARTY THE OTHER PARTY SHOULD HAVE THE KNOWLEDGE BEFORE ACCEPTING A PROPOSAL • R V CLARKE ‘There cannot be assent without knowledge of the offer’ Higgins J

  41. COMMUNICATION OF PROPOSAL: WHEN COMPLETE ‘THE COMMUNICATION OF A PROPOSAL IS COMPLETE WHEN IT COMES TO THE KNOWLEDGE OF THE PERSON TO WHOM IT IS MADE’ SECTION 4 (1)

  42. ACCEPTANCE AN ACCEPTANCE IS AN ACT WHICH SHOWS THAT THE PERSON TO WHOM THE PROPOSAL IS MADE GIVES HIS/HER ASSENT TO THE PROPOSAL

  43. LEGAL PRINCIPLE TO CONVERT A PROPOSAL INTO A PROMISE THE ACCEPTANCE SHOULD BE ABSOLUTE AND UNQUALIFIED SECTION 7 (a)

  44. LEGAL PRINCIPLE THE LEGAL PRINCIPLE IS THAT THE ACCEPTANCE SHOULD BE A ‘MIRROR IMAGE’ TO THE PROPOSAL

  45. COUNTER OFFER ANY MODIFICATION OR VARIATION OF THE PROPOSAL DOES NOT CONSTITUTE AN ACCEPTANCE BUT AMOUNTS TO A ‘COUNTER OFFER’. A COUNTER OFFER DESTROYS THE ORIGINAL OFFER.

  46. HYDE V WRENCH DEFENDANT OFFERED TO SELL HIS ESTATE FOR GBP 1000 PLAINTIFF AGREED TO BUY BUT FOR GBP 950 DEFENDANT REFUSED TO SELL PLAINTIF AGREED WITH THE ORIGINAL OFFER

  47. BATTLE OF THE FORMS Butler Machine Tool v Ex-Cell-O-Corporation [1979] 1 All ER 965 – An arrangement to sell a machine. Both parties have their own standard terms. A makes an offer with ‘price variation clause’. B accepts but with its own terms i.e. without ‘price variation clause’ The court give the judgment to the person who last make an offer.

  48. LEGAL PRINCIPLE ‘SILENCE’ SHOULD NOT BE ACCEPTED AS A FORM OF ACCEPTANCE FELTHOUSE V BINDLEY

  49. GENERAL RULE AN ACCEPTANCE SHOULD BE MADE KNOWN (COMMUNICATED) TO THE PERSON TO WHOM THE PROPOSAL IS MADE • FACE TO FACE CONTRACT • CONTRACT THROUGH TELEPHONE • CONTRACT THROUGH TELEX

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