Legal Management

Q1) State any rights in which the Employment Act 1955 given exclusive protection to Female employees

Answer:-

As stipulated in Employment Act 1955:

a)                 Under Section 34(1), employers are not permitted to employ women to carry out industrial and agricultural work between 10.00pm to 5.00am without exemption from the Director General of Labour Department; and No female employee shall commence work for the day without having had a period of 11 consecutive hours from such work.

                      

b)                 Under Section 35, no female employee shall be employed in any underground working.

c)                   Under Section 37 to 44 is about maternity protection:-

·        Every female employee shall be entitled to maternity leave  for a period of not less than 60 consecutive days ("eligible period")

·        Where she is entitled to maternity leave but is not entitled to receive maternity allowance she may, with the consent of the employer, commence work at any time during the eligible period if she has been certified fit by a registered medical practitioner

·        She shall be entitled to receive maternity allowance for the eligible period if  she has been employed at any time in the four month immediately before her confinement and not less than 90 days during the 9 months immediately before her confinement.·  Maternity allowance for each day shall be equivalent to one day ordinary rate of pay.

Q2)

State whether the parties below are required by law of contract to fulfill their legal obligations in the following situations and explain your answer:-

a)     Ronaldo wants to accept the offer made by Tom. Since Tom does not stipulate the mode of acceptance, Ronaldo decides not to take any action and presumes that Tom shall understand and accept his silence as an acceptance.

Answer 2 a)

By law of contract (Proposal and Acceptance), Tom or Ronaldo are necessary to complete their legal obligations since silence does not an acceptance. Acceptance only becomes effective when it has been communicated. Referring to Section 3 of the Contracts Act 1950, acceptance must be made in the way prescribed by the offer. In this case even Tom did not stipulate the mode of acceptance. However, according to section 4(1) of the Contracts Act 1950, the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made which is Ronaldo.

b)     Aiman placed the following advertisement in Motor Trader magazine: “For sale- 1965 Mini Austin in good condition. A bargain at RM12, 000”. Tom, who was interested in vintage cars, wrote a letter to Aiman on Monday offering to buy the car for RM10, 000. Aiman wrote back saying, “I’m afraid I cannot accept anything less than RM12, 000. Let me know by Friday evening if you still wish to buy the car”. On receipt of the letter, Tom wrote back immediately saying:”RM12, 000 seems a bit pricey, but I’ve always wanted to own a Mini Austin, so consider it a deal. I am a bit short of money this month. Would you be willing to accept RM6, 000 immediately and the rest next month? If I hear no more from you I shall take it that we’ve got a deal and I will collect the car on Friday”. The letter was lost in the post and never arrived. Aiman having heard nothing from Tom assumed that Tom was not interested in the car and agreed to sell it to Zul on Friday morning. Tom arrived at Aiman’s house to collect the car on Friday afternoon and saw Zul drive off in the car. Advise Tom whether there exist a contract for the sale of the car between him and Aiman.

Answer 2 b):- In the case of Aiman (proposer) and Tom (acceptor) by law of contract (Contracts Act 1950) this case is classified as counter offer. The acceptance must be made in exactly the same terms as the proposal. There should not be any modification of the proposal. If an offer is modified, the modification will become a counter offer and not acceptance. It is concluded that there is no contract exist between Aiman and Tom even though Tom had communicated his acceptance to Aiman. By making a counter offer, Tom had rejected the original offer. Referring case: Hyde v Wrench (1840) 49 ER 132 Chancery Division (Decided by Lord Langdale MR)

The defendant offered to sell a farm to the claimant for £1,000. The claimant in reply offered £950 which the defendant refused. The claimant then sought to accept the original offer of £1,000. The defendant refused to sell to the claimant and the claimant brought an action for specific performance.

Held:

There was no contract. Where a counter offer is made this destroys the original offer so that it is no longer open to the offeree to accept.

Q3)

Mr. Irfan, a sixteen year old boy, wants to know as to whether he can enter into commercial contracts. Advise him as to what types of contracts he may enter into legally.

Answer:-

In Irfan case, according to the law of contract, capacity to contract, in order to form a valid and binding contract, the parties must have the capacity and are competent to enter into contract. Section 10(1) of the Contracts Act 1950 states that "all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void". The following persons are considered not competent to enter into a contract:

1. Minors

2. Insane person

3. Bankrupts

In term of effect of contracts made by minors, according to general rule in Malaysia: contracts made by infants are void. This can be referred to case of Mohori Bibee v. Dhurmodas Ghose (1903) 30 Cal 539, 30 1A 114.

However, there are exceptions to the general rule which are contracts of insurance, contracts of necessaries and contracts of scholarship which Irfan may enter into legally.

1. Contracts of insurance:

According to the Insurance Act 1963 (revised 1972): an infant over the age of 10 years may enter into a contract of insurance. But if he or she is below the age of 16 years, he or she can only enter into a contract of insurance with the written consent of his or her parents or guardian.

2. Contracts for necessaries:

Necessaries: things which are essential or necessary to the existence and reasonable comfort of the infant, such as food, clothes. Luxurious articles do not fall within category of necessaries.

Education was held to be included under necessaries in the case of Government of Malaysia v Gurcharan Singh & Ors (1971) 1 MLJ 211.

Contracts of scholarship:

Contracts (amendment) Act 1976: A scholarship agreement entered into by an infant is valid when the scholarship, award, bursary, loan or sponsorship is granted by federal or state government, a statutory authority or an educational institution such as university.

Q4)

Discuss the legal rights of unpaid seller against the buyer.

Answer:-

In remedies for breach of contract, the definition of unpaid seller according to the Sale of Goods Act 1957 is: a seller to whom the whole of the price has not been paid or tendered; or when a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled due to the fact that the instrument has been dishonored etc.

1. Legal rights of unpaid seller against the goods are:

a)     A lien on the goods for the price, where he is in possession of the goods (section 46 (1) (b) of the Sale of Goods Act 1957)

b)     A right of stopping the goods in transit in the case of the buyer's insolvency, where he has parted with the possession of the goods (section 46(1)(b) of the Sale of Goods Act 1957)

c)      A right of resale, subject however to section 54 (section 46(1)(c) of the Sale of Goods Act 1957.

d)     A right of withholding delivery, where the property in goods has not passed to the buyer (section 46 (2) of the Sale of Goods Act 1957)

2. Rights of the seller to sue for breach of contract.

The seller can take legal action to the buyer for breach of contract if:

a)     It is contracted that the price be paid on a certain date regardless of delivery and the buyer wrongfully neglects or refuses to pay such price even though the property in the goods has not passed and the goods have not been appropriated to the contract (section 55(2) of the Sale of Goods Act 1957)

b)     The property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods; (section 55(2) of the Sale of Goods Act 1957)

c)      Also referring to Section 31 of the Sale of Goods Act 1957: it is the duty of the seller to deliver the goods whereas it is the duty of the buyer to accept and to pay for them in accordance with the terms of the contract of sale.

Q5)

In what ways may an agency be created? When the agent would lose his right of remuneration?

Answer:-

1. Creation of agency according to Contracts Act 1950

a)     Definition of Agency: the relationship which subsists between a principal and an agent, where the agent has been authorized to act for the principal or represent him in dealing with others.

b)     Definition of a principal: a person who authorizes the agent to act on behalf of him.

c)      Definition of an agent is a person who is employed by the principal to do certain act for him or to represent him in dealings with third party (Section 135 of the Contracts Act 1950)

d)     According to Contracts Act 1950, creation of an agency is created by the agreement of both the principal and the agent. No specific formality in order to form a contract of agency. Consideration is not necessary in order to form a contract of agency (Section 138 of the Contracts Act 1950)

e)     Creation of agency may be made by:

                    i.            By express appointment

The agent is appointed either orally or in writing (Section 140 of the Contracts Act 1950)

                  ii.            By implied appointment

It may occur in three situations:

§         Implied by the Partnership Act 1961

ü      Section 7 of the Partnership Act 1961 states that: "every partner is an agent of the firm and his other partners for the purpose of business of the partnership"

ü      The firm or other partners are liable to whatever contracts which had been entered into by any of the partners.

§         Implied from the circumstances of the case

ü      The creation of agency may be implied by referring to the words, conduct or the regular conduct of the business between parties.

ü      It appears to third parties that certain person is having authority to act on behalf of another person (Section 140 of the Contracts Act 1950)

§         Implied from the relationship of husband and wife.

§         It is implied that the wife has power to pledge the husband's credit in a contract, on a condition that the contracts are for necessaries and suited to their condition and style of living. In other words, the wife is an agent of the husband.

Ø      But the husband can rebut this implied authority by proving that:

§         He expressly forbade his wife from pledging his credit;

§         He expressly warned the tradesman not to supply his wife with goods or credit;

§         His wife was given enough allowance for buying goods without having to pledge her husband's credit; or

§         The contract was unreasonable, taking into consideration her husband's income at that time.

                iii.            By ratification

·        Definition of ratification is certification or acceptance by the principal for an act done without authority or exceeding the authority given.

·        Agency by ratification may arise in two situation:

ü      When an agent who was appointed by the principal, has exceeded his given authority; or

ü      When a person, who has no authority to act for the principal, has acted as if he has the authority to act on behalf of the principal.

ü      The principal has a choice either to reject or to accept the contract which has been made on behalf of him.

ü      If he accepts and affirms the contract, this means that he ratifies the contract and there exists an agency relationship between the principal and the agent (Section 149 of Contracts Act 1950). The principal is bound to the said contract.

ü      But, if the principal does not accept such contract, then no agency relationship exists and the principal would not be liable upon such contracts.

                 iv.            By necessities or emergency

It may occur in two situations:

·        When a wife is deserted and has no means of support

ü      Wife can pledge her husband's credit for necessaries suited to the income and life condition of her husband.

ü      But, she cannot become an agent by necessity if her husband has provided her with sufficient allowance.

·        When a person is entrusted with another person's property and it becomes necessary for him due to the emergency situation, to do something in order to preserve and to protect that property although he has no authority to do so. Reference case is Great Northern Railway v Swaffield.

                   v.            By estoppel

·        When the principal himself induces a third party to believe that a person has an authority to act for him, as if that person is his agent, he is estopped by law from denying that agent's authority (Section 190 of the Contracts Act 1950) In other words, the principal cannot avoid the liability upon the contract being made by that particular agent.

·        When the principal does not inform the third party that his agent has no authority or the agent's authority has been terminated, but the agent continues acting on behalf of the principal, then the principal is estopped by law from again denying the agent's authority. In this case, the principal would be liable for the contract made by such agent regardless as to whether the agent had acted with or without the principal's knowledge. Reference case is Freeman & Lockyear v Buckhurst Park Properties Ltd.

·        Agency by estoppels happens only if the principal himself, through his own words or conduct, induced the third party to believe that a certain person is having the authority to act on behalf of the principal. It does not happen if the third party was induced by agent only. Reference case is Armagas Ltd. v. Mundogas S.A. (The Ocean Frost) - Court of Appeal (Stephenson, Dunn & Robert Goff L.JJ.) - 18 October 1984 Chartering manager has no ostensible authority to say that top management approved charter-back arrangement. Armagas bought the vessel Ocean Frost from Mundogas and chartered her back to Mundogas. Mr. M. was Mundogas’s Vice President (Transportation) and Chartering Manager. He negotiated the charterparty with Mr. J., a friend and broker. Mr. M. signed a three year charterparty with Armagas on behalf of Mundogas. In fact, Mr. M. had no authority to conclude such a charterparty. Mundogas subsequently repudiated the charter on the ground that it knew nothing about the three year charter, and that Mr. M. was acting without authority.

2. When the agent would lose his right of remuneration?

The agent would lose his right of remuneration when the agent is guilty of misconduct. This is provided under Section 173 of the Contracts Act 1950. The reference case is Andrew v. Ramsay. In the case, it was held that the principal is not bound to pay the agents commission due to the fact that the agent had received secret profit or a bribe when performing his duties as an agent.

Q6)

Ahmad, Abu and Ali have decided to form a partnership business for selling books and stationeries. Among the agreed terms in their agreement was that Ali is excluded from sharing any profit. Is Ali a partner? Justify your answer.

Answer:-

In the case of Ahmad, Abu and Ali, Ali is not a partner.  As per the definition partnership A type of business organization in which two or more individuals pool money, skills, and other resources, and share profit and loss in accordance with terms of the partnership agreement. In absence of such agreement, a partnership is assumed to exit where the participants in an enterprise agree to share the associated risks and rewards proportionately . And according to Section 3(1) of the Partnership Act 1961: "Partnership is the relation which subsists between persons carrying on business in common with a view of profit".

Referring to case: Gulazam v. Noorzaman and Sobath, GULAZAM v NOORZAMAN AND SOBATH [1957] 23 MLJ 45

The plaintiff, who was an ex-police constable and a watchman on a rubber estate, claimed that both defendants who were cattle dealers met him and made arrangements to form a partnership among the three of them to purchase, keep and sell cattle. The conditions were that the plaintiff was to provide RM 200 as capital to purchase, and defendants to look after it and sell it and the profits to be divided among them in equal shares. The plaintiff provided the capital. He received some shares of the profit. There was no account rendered. The plaintiff brought the action for an account to be taken and payment of any sum of money due on him. The defence of both defendants was a denial of the existence of partnership.