scholarly journals The Legal Saga of Exclusion Clauses in Malaysia

2019 ◽  
Vol 1 (1) ◽  
pp. 43-52
Author(s):  
Tan Pei Meng
Keyword(s):  
Legal Reasoning ◽  
Federal Court ◽  
Contract Law ◽  
Breach Of Contract ◽  
Legal Risk ◽  
Business Organisation ◽  
Legal Principles ◽  
Legal Position ◽  
Appeal Decision ◽  
Court Of Appeal

One of the issues that could affect the success or the sustainability of a business organisation is its ability to manage the legal risk of liability that it faces in running its business. One common tool utilised by businesses is to insert an exclusion or limitation clause in their contracts. This would allow them to predict and apportion the possible amount of liability that could arise from breach of contract or negligence. The courts usually exercise caution in allowing such clauses to be enforced in order to prevent unfairness especially to the weaker party. Malaysia is of no exception. The Malaysian courts have display willingness to strike down the validity of an exclusion clause to ensure that a business organisation does not escape liability arising from its own fault. The Federal Court and the Court of Appeal decision in Bourke v CIMB Bank Bhd (2018) are good examples of such an approach. However, the legal reasoning adopted by the courts in this case has led to numerous confusions on the legal principles of contract law in Malaysia. It is therefore necessary to examine the legal position of exclusion clauses in Malaysia today and to determine what is the most appropriate way forward. This research found that there are difficulties with the legal coherency and application of Bourke in future cases.

12. Discharge by frustration: subsequent impossibility

2021 ◽  
pp. 467-492
Author(s):  
Robert Merkin ◽  
Séverine Saintier ◽  
Jill Poole
Keyword(s):  
Contract Law ◽  
Legal Basis ◽  
Breach Of Contract ◽  
General Terms ◽  
Force Majeure ◽  
Common Purpose ◽  
Legal Position ◽  
The Common ◽  
The Law ◽  
Legal Consequences

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.

Poole's Casebook on Contract Law

2019 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Legal Principles ◽  
Wide Range ◽  
The Subject ◽  
Selection Of

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book begins with some guidance on reading cases, and then turns to agreement and agreement problems. Next it looks at the enforceability of promises and intention to be legally bound and the capacity to contract. The content of the contract is examined. Exemption clauses and unfair contract terms are analysed in detail. The book also considers issues relating to breach of contract and remedies, and excuses for non-performance. Finally it discusses initial impossibility, misrepresentation, duress, undue influence, and illegality.

Poole's Casebook on Contract Law

2021 ◽  
Author(s):  
Robert Merkin QC ◽  
Séverine Saintier
Keyword(s):  
Case Law ◽  
Contract Law ◽  
Undue Influence ◽  
Breach Of Contract ◽  
Legal Principles ◽  
Wide Range ◽  
The Subject ◽  
Selection Of

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book begins with some guidance on reading cases, and then turns to agreement and agreement problems. Next it looks at the enforceability of promises and intention to be legally bound and the capacity to contract. The content of the contract is examined. Exemption clauses and unfair contract terms are analysed in detail. The book then considers initial impossibility, misrepresentation, duress, undue influence, and illegality. The book ends by discussing issues relating to breach of contract and remedies, and excuses for non-performance.

Contract variation in the common law

2018 ◽  
Vol 47 (3) ◽  
pp. 196-207
Author(s):  
James C Fisher
Keyword(s):  
Common Law ◽  
Contract Law ◽  
The Common ◽  
Appeal Decision ◽  
English Law ◽  
The Law ◽  
The Uk ◽  
Business Exchange ◽  
Court Of Appeal

This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s ( obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.

Isn’t all loss consequential?

2015 ◽  
Vol 7 (3) ◽  
pp. 176-194 ◽  
Author(s):  
Adam Connell ◽  
Jim Mason
Keyword(s):  
Sources Of Information ◽  
Breach Of Contract ◽  
Content Type ◽  
Legal Principles ◽  
Secondary Sources ◽  
Legal Position ◽  
Construction Law ◽  
Definition Of ◽  
First Time

Purpose – The purpose of this paper is to demystify the meaning of the term “consequential loss” in relation to the practice of construction law. Parties may have different understandings of the term and typically an exclusion clause will not solely relate to consequential loss, but will also include other heads of losses for which the party will not be liable for, such as loss of profit, loss of revenue and loss of business. Design/methodology/approach – The question emerges as to whether the term consequential loss has a definitive legal meaning in its own right. This study seeks to ascertain the definition of the term consequential loss within the construction industry through a review of the legal position regarding liability for breach of contract and consequential loss through the consideration of the case law relating to this topic and the associated secondary sources of information. Findings – The study concludes by elucidating a clear interpretation of the term consequential loss and guidance of how it should be used in contract law. Originality/value – Recent cases and established authorities are considered together for the first time in this work which assists in the development of legal principles of direct and indirect losses and the determination of how they apply to the built environment.

scholarly journals Pembeli Bona Fide Dalam Penipuan Tanah:Isu Dan Cabaran

2015 ◽  
Author(s):  
Noraida Harun ◽  
Jady @ Zaidi Hassim
Keyword(s):  
Document Analysis ◽  
Federal Court ◽  
Good Faith ◽  
Legal Principles ◽  
Land Title ◽  
Original Owner ◽  
Bona Fide ◽  
Legal Position ◽  
The Right

The legal position applicable in Malaysia based on the decision of Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133 is that the right of the original owners of a land title is not fully protected if the property was transferred to another party by means of fraud, provided the new owner (buyer) has acquired ownership with bona fide (good faith) with consideration. The original owner is not legally entitled to recover the land from the new buyer. In other words, with this decision even though the conversion of ownership was obtained by fraud, if the registered buyer is a bona fide purchaser, the ownership is undeniable. The decision of this case became a binding precedent to all courts in Malaysia and the principle in this case can only be restored or corrected by another decision of the Federal Court. In 2010, the case of Tan Yin Hong v Tan Sian San [2010] 2 CLJ 269 which was decided by the Federal Court was a landmark case which revised the legal principles applied in Adorna Properties.The legal position after the decision of the case in 2010 clearly shows that the original owner has undeniable ownership and has the right to reposses the land when fraud is proven. This purpose of the article is to study the position and the remedy of the bona fide purchaser when the decision in favor of the landowner which may invite injustice to the bona fide purchaser as they solely depending on the document title when dealing with transfer of land matters.The methodology used in this study is a library based research which includes document analysis such as the decided cased, books and articles. This study also raises suggestions of improvement and outcome to ensure the interests and rights of the parties involved.   Keywords: bona fide purchaser, ranking and remedies, challenges, suggestions for improvement.

Englander v. Telus: Protection of Privacy in the Private Sector Goes to the Federal Court of Appeal

2016 ◽  
Author(s):  
Marc-Aurele Racicot
Keyword(s):  
Private Sector ◽  
Personal Information ◽  
Information Age ◽  
Federal Court ◽  
Personal Life ◽  
Information Protection ◽  
Public Places ◽  
Electronic Documents ◽  
Full Force ◽  
Court Of Appeal

These days, is there a topic more significant and provocative than the protection of privacy in the private sector? The importance of this topic has been highlighted since the Canadian Parliament adopted the Personal Information Protection and Electronic Documents Act which came into full force on 1 January 2004 and which is scheduled for review in 2006. Although it seems that everywhere we turn, the word "privacy" and its companion PIPEDA are at centre stage, many say that this attention is unwarranted and a knee-jerk reaction to the information age where one can run but cannot hide. Like it or not, we are subject to the prying eyes of cameras in public places, the tracking and trailing of Internet activities, the selling of address lists and other such listings, and the synthesizing by marketers of frightful amounts of personal information that, when pulled together, reveals a lot about our personal life, our ancestry, our relationships, our interests and our spending habits.

Fracturing Constitutional Rights: The Prosecution of Alleged Broadcast Infringers in Nigeria

2020 ◽  
pp. 1-15
Author(s):  
Bankole Sodipo
Keyword(s):  
Civil Liability ◽  
Copyright Infringement ◽  
Law Reform ◽  
Constitutional Rights ◽  
Appeal Decision ◽  
Written Law ◽  
Court Of Appeal ◽  
Material Form

Abstract Infringement of broadcasts is often treated as a crime. The Nigerian Constitution guarantees that no-one can be prosecuted for any act that is not prescribed in a written law. Section 20 of Nigeria's Copyright Act only criminalizes dealing with infringing copies. A “copy” is defined in terms of material form. An infringing broadcast therefore connotes a recorded broadcast or a copy of a broadcast. This article argues that, statutorily, not every act that gives rise to civil liability for broadcast copyright infringement constitutes a crime. The article reviews the first broadcast copyright prosecution Court of Appeal decision in Eno v Nigerian Copyright Commission. Eno was unlawfully prosecuted, convicted and imprisoned. The article seeks to stem the wave of prosecutions on the type of charges used in Eno. In the absence of law reform, the prosecutions based on the line of charges in Eno constitute a fracturing of constitutional rights.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Sign in / Sign up

Export Citation Format

Share Document