Dec 31, 2007

Business Law Tutorial 12

1. Negligence is defined in Winfield and Jolowicz on Tort as the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff.

Negligence consists of a legal duty of care, breach of that duty and damages.
[ It depends on the marks allocation. If the marks are higher, then you should explain more of each elements.]


2. (a) In the case, it states the neighbour principle, which is the test of reasonable foresight. It says that you owe a duty of care to your neighbour. A neighbour is person who is so closely and directly affected by one's act and one ought to have them in contemplation before such act is done.

2. (b) In the case, the plaintiff husband is sick and the plaintiff sends her husband to hospital but the doctor refuses to treat her husband and asks her to bring her husband to her own doctor. Eventually her husband died. The plaintiff sues the doctor for not treating her husband.

Here, there is a duty of care but that duty is not breached because the plaintiff's husband death is not due to negligence of the doctor. The plaintiff husband is died due to arsenic poisoning.


3. Neighbour principle is the test of reasonable foresight. Under this test, a duty of care exists if it was reasonably foreseeable that the plaintiff would be injured as a consequence of the defendant's acts or omissions. Neighbour is person who is so closely and directly affected by my act that i ought to have them in contemplation before such act is done.


4. It is the reasonable man test. Would the reasonable man have done the same thing?If yes, there is no breach of duty. If no, there is a breach of duty.


5. When there is a breach of duty, there are 3 factors to be considered:

(a) Magnitude of risk

- The likelihood that injury will be incurred and the seriousness of the injurt that is risked- Bolton v. Stone

- If the plaintiff suffers from some disability, which is or should be known to the defendant, which increases the magnitude of the risk to him, that the disability must be taken into account - Paris v. Stepney Borough Council


(b) The importance of object to be attained

If the purpose in taking the risk is justified then the defendant is not liable - Watt v. Herdfordshire County Council


(c) The practicability of precautions

The risk must be balanced against the measures necessary to eliminate the practical measures which the defendant could have taken must be considered - Latimer v. A.E.C.


6.The test for remoteness of damage is named Reasonable Forseability Test - The Wagon Mound.

The damage would consider to be remote if the reasonable man would not have foreseen them. Thus the plaintiff must show that he suffered loss which was caused by defendant's breach of duty and was not too remote a consequence of it.


7. A break in the chain of causation can be due to:

(a) Intervening natural event

- which occurs independantly of the defendant's breach of the duty but which would have caused the plaintiff no damages of the breach of duty has not occurred, the defendant is not liable for such loss.

(b) Intervening act of a third party - If the act of third party as not truly independant then, the defendant act will be liable

(c) Intervening act of the plaintiff

- If the plaintiff has done something which severes the injury or damages not truly, the defendant only liable for his part.


8. (a) Volunti Non Fit Injuria - no harm can be done to someone who consents it.

(b) Inevitable event - an accident which is beyond control of the defendant or no intention to do it.

(c) Necessity - if the injury was done to prevent a more severe injury

(d) Private Defence - self defence in order to prevent injury or damages from happening

(e) Act of God - something happened independently due to natural event which severes the damage.

(f) Act of Stranger - if chain of causation is broken by stranger, the plaintiff wil bear loss caused by the stranger.

(g) Contributory negligence - Section 12 Civil Law Act, 1956 provides that if plaintiff himself contribute to the damages, the plaintiff will be liable for his own act.


9. If a third party asks a professional for advice, and the professional gives the advice, knowing very well that the third party is going to rely on that advice. Third party relies on it and changes his position then the professional can be sued when the third party suffer damages, unless there is disclaimer. The professional is liable for negligence but not liable due to presence of disclaimer.



10. Professional negligence is defined as whether a professional person can be liable for what he says.

For a professional to be liable, three things must be proved, of which there is duty of care, breach of duty of care, and damages.

Elements of the cause of action for professional negligence are:

  • Professional made a statement to a third party , knowing very well that third party is going to rely on it
  • Third party relies on it
  • Third party changes his position
  • Third party suffers damages
  • There is no presence of disclaimer

This principle in Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. is then reaffrimed in Caparo Industries v. Dickman.


11. Negligence is defined in Winfield and Jolowicz on Tort as the breach of a legal duty of care, which results in damages, undesired by the defendant, to the plaintiff.

For a professional to be liable, he must prove three things, of which the duty of care, the breach of duty of care and damages.

When See Bok has appointed Keera as his accountant to advise him on financial matters, is there a duty of care? Lord Atkin in Donoghue v. Stevenson stated that you owe a duty of care to your neighbour. A neighbour is person who so closely and directly affected by my act and i ought to have them in contemplation before such act is done. In this case, See Bok is Keera's neighbour, therefore, there is a duty of care.

To determine whether there is breach of duty of care, there are 5 elements to be looked into. Is there a statement made by professional, knowing very well that third party is going to rely on it? Yes. Keera did advice See Bok, knowing that he has great confidence on her and will rely on her advice. Is there reliance by third party? Yes. See Bok relies on Keera's advice. Does the third party change position? Yes. See Bok acted on the advice given by Keera. Does the third party suffer damages? Yes. See Bok lost RM300000 because he acted on Keera's advice. Can See Bok sue Keera for professional negligence? Yes unless there is a disclaimer. In this case, is there any disclaimer? No. Therefore See Bok can sue Keera for professional negligence.

This is the last tutorial for Business Law...

Wish all of you good luck in this paper. To score this paper, you need to work hard. So don't you do revision for this paper last minute... It does you no good..

Thank you...

Dec 25, 2007

Business Law Tutorial 11

1. [ Refer notes - creation of agency ]

2. [ Refer notes - Duties of Agent to Principal ]

3. [ Refer notes - Duties of Principal to his Agent ]

4. 4 remedies available:
  • Principal may repudiate the contract - Section 168 Contracts Act, 1950
  • Principal may recover the bribe from agent - Section 169 Contracts Act, 1950
  • Principal may refuse to pay commission to Agent
  • Principal may dismiss agent for breach of duty

5. [ Refer notes - Termination of Agency ]

6. (a) 3 conditions:

  • It is impossible for the agent to get principal's instruction
  • Agent's act is necessary to prevent loss to the principal with respect to the goods, for example, perishable goods
  • Agent's necessity must have acted in good faith

6. (b) 9 conditions:

  • the act must be unauthorised
  • agent must expressly act as agent for principal. He must not allow the third party to think that he is principal.
  • Agent must have a principal in actual existence when the contract is made
  • principal has the contractual capacity to enter into the contract when the contract is made and at the time of ratification
  • principal must have full knowledge of all material facts at the time of ratification - Section 151 Contracts Act, 1950
  • principal must ratify the whole contract - Section 152 Contracts Act, 1950
  • the ratification does not injure a third party - Section 153 & Illustration Contracts Act, 1950
  • ratification must done within a reasonable time, which is decided by the judges
  • the unauthorised act must be legal.

7. Agency is defined in Section 135 Contracts Act, 1950 as a relationship which exists between s principal and the agent authorised to act for him or represent him in dealings with third parties.

(i) How can an agency be created? In this case, it is an express appointment by the Principal - Section 140 Contracts Act, 1950 because Abu appointed Batu as his agent. Therefore,Batu has actual authority to act on behalf of Abu.

To terminate an agency, it can be done by mutual consent of both parties, or by revocation by principal - Section 154 Contracts Act, 1950, or renunciation by agent - Section 154 Contracts Act, 1950. Where the agency is for a fixed period of time, the agency cannot be terminated before expiry of that period without a good reasonable cause, otherwise the another party can sue for damages - Section 158 Contracts Act, 1950. In this case, the agency is for six months, can Abu terminate it before six months? Abu cannot do so unless he has a very good reason, which will be the breach of one of the duties by agent, under Section 164 Contracts Act, 1950 to Section 178 Contracts Act, 1950.

(ii) Under the duties of agent to principal, an agent has to obey the principal's lawful instruction - Section 164 Contracts Act, 1950. Batu has to obey Abu's instruction. If the instruction is not clear, Batu can act according to the customs - Section 164 Contracts Act, 1950.

When Batu act, he must exercise care and diligence -Section 165 Contracts Act, 1950. Batu must be able to render proper account - Section 166 Contracts Act, 1950. An agent must communicate with the principal with all reasonable diligence - Section 167 Contracts Act, 1950. Batu must communicate with Abu and get his consent before he can buy one of the lots for himself in the name of his mother. Under Section 169 Contracts Act, 1950, an agent cannot let his own interest conflict with his duty. If Abu consents it, Batu can buy. If Abu does not allow Batu to do so, he cannot buy.

8. Agency is defined in Section 135 Contracts Act, 1950 as a relationship which exists between a principal and the agent authorised to act for him or represent him in dealings with third parties.

When Paul asks Tom to sell his two computers for him for not less than RM1500 each, he has appointed TOm as agent by express appointment. Therefore Tom has actual authority in carrying out his duties.

Under Section 164 Contracts Act, 1950, agent must obey principal's instructions. Here, Tom has to obey Paul's instruction to sell two computers for not less than RM1500. He also does his job properly and exercises care and diligence - Section 165 Contracts Act, 1950. Under Section 167 Contracts Act, 1950, agent must communicate with principal with all reasonable diligence. Agent must not allow his own interest conflict with his duty - Section 169 Contracts Act, 1950. Here, Tom has not communicated with Paul before buying one of the computers for himself. Therefore Paul does not consent it. There is a breach of duty.

Under Section 166 Contracts Act, 1950, agenc must render proper account. Here, Tom does not provide proper account as he sold the computer to Janet for RM 2000 but he only reported RM1500. Under Section 171 Contracts Act, 1950, agent must pay all sums received on his behalf. Tom does not pay RM 2000 for selling the computer to Janet. There is a secret profit of RM500. Therefore, there is a breach of Section 168 COntracts Act, 1950.

Paul can repudiate the contract - Section 168 COntracts Act, 1950, or recover the bribe from Tom - Section 169 Contracts Act, 1950, or refuse to pay commission to Tom, or dismiss Tom as an agent for breach of duty.

9. (a) [ Refer notes-Authority of An Agent ]

9. (b) [ Same with question 5 ]

Dec 23, 2007

Untitled

Without self realisation,

it has been such a long time that i have not really sit down in front of my desktop and spend my own sweet time to blog, careless for the BUsines Law Tutorials Answers...

SBS PROM NIGHT 2007 will be going soon...on 27th of December 2007

There had been lots of preparation going on...
Since a month before, our effort in searching potential sponsors have been rigorously carried out.
Though there are much disappointment...so influential that i have somehow lost my own mood and energy for a particular week, which i had not appeared for the booth promotions...
Soorrry to all my Xtreme family!!

However, i am glad that my department can at least managed to prove that we can do something on our own.

Two weeks before 27th of December, Me myself, as a "Door Gift and Souvenir Director" along with my " Assistant Door Gift and Souvenir Director" Hui Xing have been boosted up our courage and walked into every shop in Genting Klang to ask for sponsor.

HOnestly, i am not that good in sponsorship. Previously, the fund raising's sponsorship was done by both Diana and Alan.

Our first attempt was on wednesday 12th of December 2007, if i am not mistaken.
How lucky we were, which the day itself, the whole GK was experiencing total Electricity black out. Many shops were not open for business. Few shops opened were not welcoming.

As you can guess, the outcome was a total bravo "0". (can it be eaten?)

Our second attempt was much much better.
Our first approach granted us a good response. Thank goodness...It actually boosted our confidence that urged us to work harder next...The outcome for the day was much satisfying.

Simply can't help but feel proud for what our department has contributed to, even though, Alan and Diana are indeed a good helper in this kind of things. Now that my door gift looks much interesting and not just whole bags of recycle papers anymore.

What to be worried now is the souvenir. Besides preparing the souvenirs for officials and head of school, now we have to prepare more for the coming sponsors on that day.

For the co-sponsors and officials, we have wine glass fully furnished and glittered. On that night itself, we would light up the scented candle in the glass. Hope that the effect is good enough and the glass would not break up due to the heat.

As for the Head of School and main sponsor, we have white ceramic plate, which will be decorated accordingly with the theme, Atlantis.

There are so much things to be done. The collection of the sponsor things, the completion of the souvenirs, and the preparation of the goodie bags. None of them is done yet.

That's all my update. Thanks for keeping up with my blog. Thanks.
I promised i will have all the updates n the SBS Prom Night 2007.

Danke Schoen

Dec 20, 2007

Business Law Tutorial 10

1. Partnership is defined in Section 3(1) of Partnership Act, 1961 as a relation which subsists between persons carrying on business in common with a view of profit.

Business is defined in Section 2 Partnership Act, 1961 as every trade, occupation or profession.

Section 3(2) Partnership Act, 1961 specifically excludes co-operative societies and registered statutory and chartered companies.


2.A partnership can be formed with or without a written agreement. It can be created orally or in writing.

It is easier to form than a company. The minimum number of members is 2. Section 47(2) Partnership Act, 1961 provides that there cannot be a partnership of more than 20 persons.


3. There can be a partnership between a minor and an adult. A minor can be a partner for any duration of time until he wants to cancel it. A minor cannot liable for any debts of the partnership until the age of majority. On the age of majority, a minor can, if he wishes, discharge himself from all future debts of the firm by terminating the partnership. Failure to repudiate the agreement will make him liable for the partnership debts.


4. [The whole section of liability in notes.]


5.(a) Advantages

Wider capital base – as more partners contribute to the capital of partnership;if compared to the sole trader, of which the capital solely from him himself.

Different skills – Each partner has different skills and knowledge in operating the partnership; in sole trader, only the owner contributes his skills.

Losses can be shared equally – as partners re jointly liable; in sole trader, the owner bears all the losses.

Divide workload – The more partners enables the segregation of work to different partners depending on their skills and knowledge; in sole trader, the owner has to work all by himself.

Easier to get bank loan – partnership is more organized as compared to sole trader.


Disadvantages

Be liable for debts even if other partners cause it – partners are jointly liable for the partnership debts

Not able to work together – as conflicts do exist in between partners, which makes the cooperation with one and other becomes harder

Profits have to be shared – as agreed the profit and loss sharing ratio

Hard to change the nature of the business – as you need the agreements of all the partners on the issue.



5. (b) Advantages

Easy to perform – less rigidity in procedure to performance in a partnership, rather than in company.

Less formalities – obligations for the company to abide to the extensive rules and regulation set by the government.

Easier to change the nature of business – only needs majority of shareholders to agree.


Disadvantages

No separate entity – the partnership can sue of be sued through partners

No perpetual succession – once the partners leave and unable to replace the partners, the partnership will end

Unlimited liabilities – personal assets will be liable for the partnership debts, if needed so.

Limited capital base compare to company – company can raise capital through issuance of shares and debentures but partnership only can raise capital from the partners


6. [ Refer notes – Termination of partnership ]


7. (a) Section 3(1) Partnership Act, 1961 defines partnership as a relation which subsists between persons carrying on business in common with a view of profit. In this case, Syarikat JJ is a partnership because it is a food catering business, for a view of profit.

Under Section 47(2) Partnership Act, 1961, a partnership cannot be more than 20members. Here, Syarikat JJ only have two partners, therefore it is a partnership.

Partners are jointly liable in civil cases but not so in criminal cases – Section 11 Partnership Act, 1961 and Section 14 Partnership Act, 1961. Here, it is a civil case. Therefore, it binds Jill.

According to Section 7 Partnership Act, 1961, as partners are agents of partnership firm, any act or omission committed by one partner binds the rest of the partners if it is carried out within the ordinary scope of the firm’s business. In this case, Jack took the loan within the ordinary scope of the food catering business. Therefore, it binds Jill.

Under Section 8 Partnership Act, 1961, partners are bound by acts on behalf of firm. In this case, Jack took the loan on behalf of Syarikat JJ to develop its business. Therefore, Jill is liable for the loan. Section 9 Partnership Act, 1961 provides that if the partner uses credit of firm for private purposes, the firm is not bound but that particular partner will be personally liable. Here, Jack borrowed the loan to buy some cooking equipment for the business. It is not for his personal purposes, thus, Jill is liable.

For a third party to hold the partnership firm and partners liable, the following conditions must be satisfied:
  • The act must be done for the purpose of the business of a partnership
  • The act must be done in the firm’s ordinary course of business.
  • The act must be done by the partner as a partner of the firm and not in his own personal capacity.

In this case, Jack borrowed the bank loan for the benefit of the partnership business and within the ordinary scope of partnership business, and not for himself. Therefore, the 3 conditions are satisfied.
Section 10 Partnership Act, 1961 provides that if the third party has noticed of the partner acts on behalf the partnership is lack of authority by the time the act is carried out, the partnership is not binding to the act done in contravention of the agreement. In this case, Moni Bank as a third party has not noticed Jack lack of authority to act on behalf of Syarikat JJ, therefore Moni Bank can sue Jill and the partnership firm liable for the loan.

7. (b) Under Section 11 Partnership Act, 1961 and Section 14 Partnership Act, 1961, the partners are jointly liable in civil cases but not so in criminal cases. Here, it is a criminal case, therefore Jill and partnership firm are not liable.

Dec 10, 2007

Business Law Tutorial 9

1. The General Rule states that the property in goods passes when the parties to a contract of sale intend that it should pass. Mere possession of goods does not mean the person has the title.

Section 18 of Sale of goods Act, 1957 states that the property in goods passes when the unascertained goods are ascertained.Section 19 of Sale of Goods Act, 1957 states that the property in goods passes when the specific or ascertained goods is intended to pass.


To find out the intention of the parties, you must look at the terms of the contract, the conduct of the parties, and the circumstances of the case.


Under Section 20 of Sale of Goods Act, 1957, for contract of sale for specific goods in a deliverable state, the property in goods passes when the contract is made.


According to Section 21 of Sale of Goods act, 1957, for contract of sale for specific goods and seller is bound to do something to put the goods in deliverable state, the property in goods passes when the seller has done it and the buyer has noticed of it.


Section 22 of Sale of Goods Act, 1957 states that for contract of sale for specific goods in deliverable state, but the seller is bound to weigh, measure, the property in goods passes when such act is done and the buyer has noticed of it.

Section 23 of Sale of GOods Act, 1957 provides that for contract of sale for unascertained of future goods by description and in a deliverable state, the property in goods passes when the contract is made. Under Section 24 of Sale of Goods Act, 1957, for goods are delivered to the buyer on approval or"sale on return", the property in goods passes when the buyer signifies his acceptance or the retains the goods without giving notice of rejection, on expiration of such fixed return time or reasonable time.



The significance of determining the time when property in goods passes to the buyer because the general rule says that the seller bears the risk-Section 26 of Sale of Goods Act,1957. However, there is exception. When the property in goods passes to the buyer, buyer bears the risk.



2. For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section 2 of Sale of Goods Act, 1957 as every kind of movable property other than auctionable claims and money, and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Land is excluded from the Sale of Goods Act, 1957. Here, Ahmad’s bicycle is a movable property, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. In Section 4(1) of Sale of Goods Act, 1957, contract of sale is defined as a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Here, it is an agreement to sell for a price because Ahmad had agreed to sell his bicycle to bob. Therefore, Sale of Goods Act, 1957 can apply.

The General Rule in transfer of property in the goods states that title passes when the parties to a contract of sale intend that it should pass.

Under Section 19 of Sale of Goods Act, 1957, where there is a contract for the sale of specific or ascertained goods, the property in goods passes to the buyer when the parties to the contract intend it to pass. According to Section 21 of Sale of Goods Act, 1957, where there is a contract for the sale of specific goods and seller is bound to do something to the goods for the purpose of putting the goods in a deliverable state, the property in goods passes to the buyer when the seller has done it and the buyer has noticed of it. In this case, the title of the bicycle is with Ahmad, because he has not changed the battery.

Section 26 of Sale of Goods Act, 1957 states that seller always bears the risk. However there is exception: when the property passes to the buyer, buyer has to bear the risk. In this case, the property has not passed, therefore Ahmad, the seller, bears the risk.



3. According to Nemo dat quod non habet rule, the seller must have a good title in order to pass a good title. It is reaffirmed in Section 27 of Sale of Goods Act, 1957. However, there are 6 exceptions under this:

(a) Estoppel, which is governed by Section 27 of Sale of Goods Act, 1957, states that estoppel may arises when the owner of the goods is by his conduct precluded from denying the seller’s authority to sell. When the owner of goods give the buyer an impression that the seller has the authority to sell, and the buyer who takes in good faith and for value will get a good title by estoppel.

(b) Sale by Mercantile Agent is governed by the provision in Section 27 Sale of Goods Act, 1957. A mercantile agent is defined in Section 2 of Sale of Goods Act, 1957 as an agent who has authority to sell the goods in customary course of business. Examples of mercantile agent are auctioneer, and second hand car dealer.

The buyer can obtain good title, even though the mercantile agent has sold the goods without owner’s authority to sell, as long as 4 conditions below are satisfied:
(i) Mercantile Agent must possess the goods or document of title to goods
(ii) The possession must with consent of owner
(iii) Sales must made during ordinary course of business
(iv) The buyer must have acted in good faith and does not notice the Mercantile Agent has no authority to sell

(c) Sale by one of joint owners is governed in Section 28 of Sale of Goods Act, 1957. Joint owners are two or more person who owns a particular goods. This section provides a good title to the buyer if the seller (one of the joint owners) has the sole possession with the consent of another joint owner and the buyer has acted in good faith and does not notice the defect of title.

(d) Sale under a voidable title, which is governed by Section 29 Sale of Goods Act, 1957, provides that a buyer with good faith and have no notice of the defect of title will still require a good title, even if the goods is bought under a contract entered by coercion, fraud, misrepresentation or undue influence.

(e) Sale by a seller in possession after sale, which is governed by Section 30(1) of Sale of Goods Act, 1957, provides that the second buyer who has acted in good faith and does not notice the defect in title will still acquire a good title.

(f) Sale by a buyer in possession, which is governed by Section 30(2) of Sale of Goods Act, 1957, provides that a buyer who has acted in good faith and has no notice of the defect in title can obtain a good title even if the seller who has no title but merely possession of the goods with consent of the owner, sold it to the buyer



4. Under Section 45 of Sale of Goods Act, 1957, unpaid seller is defined as seller whom the whole price has not been paid or the payment by cheque has subsequently dishonored.

Unpaid seller has 3 rights under Section 46(1) of Sale of Goods Act, 1957, notwithstanding that the property may have passess to the buyers:

(i) Right of lien

Unpaid seller who has possession of goods is entitled to retain possession until payment by buyer; even the property has passed to the buyer.
Under Section 46(2) of Sale of Goods Act, 1957, if the property in goods has not passed to the buyer, the seller may withhold delivery in addition to his other remedies.


(ii) Right of stoppage in transit

Section 50 of Sale of Goods Act, 1957
provides that unpaid seller can stop goods in transit if he has no possession of the goods, when the buyer becomes insolvent. He can have a lien over them until the buyer pays.
Section 52 of Sale of Goods Act, 1957 provides that the seller can either take actual possession of goods or claim to the carrier and the carrier has the responsibility to redeliver the goods to the seller.


(iii Right of seller to resell

Under Section 54(3) of Sale of Goods Act, 1957, unpaid seller can resell after he has exercised his right of lien or stoppage in transit. A good title can be given to the second buyer as against the first buyer even though the property in goods may have passed to the first buyer.

Section 54(2) of Sale of Goods Act, 1957 gives seller the right to resell the goods provided that the seller continues to have a lien over the goods.

Section 54 of Sale of Goods Act, 1957 gives the seller a right to resell if
(i) the goods are of perishable nature – Section 54(2) of Sale of Goods Act, 1957 – the seller
can resell the goods without the notice of the buyer, as to reduce the losses; if the goods
are non perishable nature, the seller must give notice to the buyer of his intention to
resell of wait till the buyer pays off.
(ii) the seller who has exercised the right of lien or stoppage in transit gives notice to buyer
of his intention to resell and buyer fails to pay within a reasonable time – Section 54(2)
of Sale of Goods Act, 1957.
(iii) Seller has in the original contract “expressly reserved a right of resale in case buyer
defaults” – Section 54(4) Sale of Goods Act, 1957



5.(a) For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section 2 of Sale of Goods Act, 1957 as every kind of movable property other than auctionable claim and money, includes stock and shares, growing crops, grass, things attached to or forming part of the land which are agreed to be severed before sale or under contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, Ginny’s car is a movable property, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of sale is defined in Section 4(1) of Sale of Goods Act, 1957 as a contract whereby seller transfers or agrees to transfer the property in goods for a price. Here, it is an agreement to sell for a price as Ginny agreed to sell her car to Joshua for RM40000. Therefore, Sale of Goods Act, 1957 can apply.

The General Rule in transfer of property in goods provides that the property in goods passes when the parties to a contract intend that it should pass.

Under Section 19 of Sale of Goods Act, 1957, where the contract for sale of specific or ascertained goods, the property in goods passes when the parties to the contract intend it to be passed.

Under Section 21 of Sale of Goods Act, 1957, for a contract for sale of specific goods, and the seller is bound to do something in order to put the goods in a deliverable state, the property in goods passes to the buyer when the seller has done it and the buyer has noticed of it. In this case, Ginny has not changed the air conditioning system of the car and resprayed it as the car was still at the workshop, so the property in goods has not passed to Joshua.

Section 26 of Sale of Goods Act, 1957 provides that seller bears the risk. However, there is exception, whereby the property in goods has passed to the buyer, the buyer bears the risk. In this case, the property in goods has not passed to Joshua, therefore, Ginny bears the loss.



5.(b) For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section 2 of Sale of Goods Act, 1957 as every kind of movable property other than auctionable claim and money, includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, Nalla’s tables is movable property, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of sale is defined in Section 4(1) of Sale of Goods Act, 1957, as a contract whereby the seller transfers or agrees to transfer the property in goods for a price. Here, it is a contract of sale because the tables are delivered to Anu , therefore Sale of Goods Act, 1957 can apply.

The General Rule in transfer of property in goods states that the property in goods passes when the parties to the contract intend that it should pass.

Under Section 18 of Sale of Goods Act, 1957, where the contract of sale for unascertained goods, the property in goods passes to the buyer when the goods are ascertained.

Under Section 23 of Sale of Goods Act, 1957, where contract of sale for unascertained of future goods bought in description, in a deliverable states are unconditional appropriated to the contract, either by the seller with the assent of the seller, the property in goods thereupon passes to the buyer. In this case, the property in goods passes to Anu when the contract is made, even though the payment is delayed.

Under Section 26 of Sale of Goods Act, 1957, the seller bears the risk. However, there is exception. When the property in goods passes to the buyer, the buyer bears the risk. Therefore, the loss should be borne by Anu.



6. For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section 2 of Sale of Goods Act, 1957 as every kind of movable property other than auctionable claim and money, includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, the piano is a movable property, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of sale is defined in Section 4(1) of Sale of Goods Act, 1957, as a contract whereby the seller transfers or agrees to transfer the property in goods for a price. In this case, it is a contract of sale, therefore Sale of Goods Act, 1957 can apply.

According to Nemo dat quod non habet rule, the seller must have a good title in order to pass a good title. It is reaffirmed in Section 27 of Sale of Goods Act, 1957. If under Section 27 of Sale of Goods Act, 1957, Macy cannot have good title because Richard has no title of the piano because Sing Sdn Bhd is an unpaid seller. However, there are 6exceptions.

Under Section 30(2) of Sale of Goods Act, 1957, sale by a buyer in possession, it provides that if a buyer who has acted in good faith and has no notice of the defect of title can obtain a good title, even if the seller who has no title but possession of the goods under the consent of the owner, sold it to the buyer. In this case, Macy has acted in good faith and has no notice of the defect of title, therefore she can get a good title. Therefore, Sing Sdn Bhd cannot claim the piano from Macy

Dec 9, 2007

Phew~~

Why am i having so less time for myself??
CAn it just be so neglible??

Sparing my own time blogging for others, and sparing myself non to blog about everything??

Tiring it must have been...
To strenghten me up....what shall i do?
or what you can do?

Give me some kind of compensation...it will just fine...^^

Dec 3, 2007

Business LAw Tutorial 8

1. For Sale of Goods Act, 1957 to apply, it must be a goods. Under Section 2 Sale of Goods Act, 1957, goods is defined as every kind of movable property other than auctionable claims and money, and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Land is excluded from Sale of Goods Act, 1957.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of Sale is defined in Section 4(1) Sale of goods Act, 1957 as a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.

(a) When Ahmad agrees to exchange his pen for Thomas’s watch, is there a goods? Here, Section 2 Sale of Goods Act, 1957 is satisfied because both pen and watch are movable properties. Is there any price? Here, there is no price because it is a barter agreement. Therefore, Section 4(1) Sale of goods Act, 1957 is not satisfied. Hence, Sale of Goods Act, 1957 cannot apply in this transaction.

(b) When Jenny agrees to sell her house to George for Rm200000, is there a goods? Here, Section 2 Sale of Goods Act, 1957 is not satisfied because house is not a movable property. Therefore, Sale of Goods Act, 1957 cannot apply in this transaction.

(c) When Frank agrees to buy shares in ABC Sdn Bhd from Sam for RM10000, is there a goods? Here, Section 2 Sale of Goods Act, 1957 is satisfied because shares is movable property. Is there a price? Here, there is a price of RM 10000, therefore Section 4(1) Sale of Goods Act, 1957 is satisfied. Hence, Sale of Goods Act, 1957 can apply in this transaction.

(d) When Tan wants to buy a TV set from Fella Design for RM2000 to be paid over a twelve months period by equal installments, is there a goods? Here, Section 2 of Sale of Goods Act, 1957 is satisfied because TV set is a movable property. Is there a price? Here, there is a price of RM2000, therefore Section 4(1) Sale of Goods Act, 1957 is satisfied. Hence, Sale of Goods Act, 1957 can apply.



2. [This question will not be asked in exam. Teacher only gives short answers.]
(a) Existing Goods if the 5 Kilo of wheat is weighted
(b) Existing Goods
(c) Future Goods



[Questions 345 are standard exam questions. So be prepared! For Sale of Goods Act, 1957 questions, Section 2 and Section 4(1) must be mentioned as introduction.]

3. For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section2 Sale of Goods Act, 1957 as every kind of movable property other than auctionable claims and money, includes stock and shares, growing crops, grass, things attached to or forming part of the land which are agreed to severed before sale or under contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, woolen clothes are goods, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be contract of sale for a price. Contract of Sale is defined in Section 4(1) Sale of Goods Act, 1957 as a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Here, there is a contract of sale as Vain purchased the woolen clothes from Carrie’s shop. Therefore Sale of Goods Act, 1957 applies.

Section 16(1)(a) Sale of Goods Act, 1957 provides an implied condition that goods are reasonably fit for a particular purpose. For this section to apply, there are 5conditions to be satisfied. Firstly, the sale must be in the ordinary course of business. Secondly, it must be fit for normal purpose or particular purpose. If the goods are for normal purpose, buyer need not to expressly inform the seller-Priest v. Last, but if the goods are for special purpose, buyer must expressly inform the seller-Griffith v. Peter Conway Ltd..Thirdly, the buyer must rely on the seller’s skill or judgement. Fourthly, the goods are of a description, which it is in the course of the seller’s business to supply. Lastly, if the goods are specific, they must not be bought under their patent or brand name.

Here, the sale in occurred in the ordinary course of business, because it took place in Carrie’s shop. Since Vain has sensitive skin against woolen material, she should have expressly informed Carrie but she did not, therefore she cannot sue Carrie under Section 16(1)(a) Sale of Goods Act, 1957.



4. For Sale of Goods Act, 1957 to apply, it must be a goods. Section 2 Sale of Goods Act, 1957 defined goods as every kind of movable property other than auctionable claims and money, includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, the chicken feed is movable property, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of Sale is defined in Section 4(1) of Sale of Goods Act, 1957 as a contract whereby seller transfers or agrees to transfer the property in goods to the buyer for a price. Here, there is a contract of sale, because Ali ordered the chicken feed from Sam.

Section 16(1)(b) of Sale of Goods Act, 1957 provides an implied condition as to merchantable quality. The buyer need not make known the purpose as long as he bought by description and must be bought from a seller who deals in goods of that description.

The proviso in this section provides that if the buyer has the opportunity to check the goods, this section cannot be applied-Thornett & Fehr v. Beers & Sons. In this case, the buyer does not check the goods even though he has given the chance to check, and so later if there is any defect detected later, the buyer cannot complain.

Section 32 Consumer Protection Act, 1999 states that goods are supplied to a consumer shall be implied a guarantee that the goods are of acceptable quality. Here, even though the chicken feed supplied by Sam, a dealer of animal feed products, is not antibiotic-free, but it is still edible for the chickens. Therefore the chicken feed is of acceptable quality. Hence, Ali cannot sue Sam under Section 16(1)(b) Sale of Goods Act, 1957.

Under Section 15 of Sale of Goods Act, 1957, so long as the buyer relies on the description of the goods before he has decided to enter into a contract of sale, this implied term could be applied. In this case, Ali had entered into the contract of sale because the chicken feed is described as being free from antibiotics. Therefore Ali can sue under this section.



5. For Sale of Goods Act, 1957 to apply, it must be a goods. Goods is defined in Section 2 of Sale of Goods Act, 1957 as every kind of movable property other than auctionable claims and money, includes stock and shares, growing crops, grass and things attached to the or forming part of the land which are agreed to be severed before sale of under the contract of sale. Land is excluded from Sale of Goods Act, 1957. Here, Singer knitting machine is a goods, therefore Sale of Goods Act, 1957 can apply.

For Sale of Goods Act, 1957 to apply, it must be a contract of sale for a price. Contract of sale is defined in Section 4(1) of Sale of Goods Act, 1957 as a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. Here, there is a contract of sale because Kenny bought the knitting machine for RM550, therefore Section 4(1) of Sale of Goods Act, 1957 is satisfied.

Under Section 16(1)(b) of Sale of Goods Act, 1950, it provides an implied condition as to merchantable quality. The buyers need not to make known the purpose as long as they bought by description and they must be bought from a seller who deals in goods of that description.

Proviso under this section provides that if the buyer has the opportunity to check the goods, this section cannot be applied- Thornett & Fehr v. Beers & Sons. In this case, the buyer is given the opportunity to check the goods but he did not check. Later, when the defects are detected, he cannot complain.

Section 32 Consumer Protection Act, 1999 provides that goods which are supplied to a consumer shall be implied a guarantee that the goods are of acceptable quality.

Here, Section 16(1)(b) of Sale of Goods Act, 1957 cannot apply because proviso says so. When Kenny is allowed to check the knitting machine, this implied term couldn’t be applied.

Under Section 15 of Sale of Goods Act, 1957, so long as the buyer relies on the description of the goods before he has decided to enter into a contract of sale, this implied term could be applied. In this case, Kenny purchased the knitting machine by relying on the description in the brochure. Even though he had the try out, still he cannot know whether the description is true or not- Beale v. Taylor- the seller of a car advertised it as a “Herald Convertible, White, 1961…”. The buyer viewed the car before agree to buy it. Later he discovered that while the rear halve of the car was part of a 1961 Herald Convertible, the front part was part of an earlier model. It was held that he could sue under Section 15 of Sale of Goods Act, 1957 because even though the buyer can try the good, defects may be concealed from the buyer.

In conclusion, Kenny can sue under Section 15 of Sale of Goods Act, 1957.

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