REVISION QUESTIONS AND ANSWER

MALAYSIAN LEGAL SYSTEM

1.Abu arrives at Hotel Safe. Once he steps in the lobby area, he slips and falls
as the floor was wet and slippery. There were no warning signs cautioning that thr floor
was wet. As a result of the fall, Abu sustained severe injuries and he now wants to
commence a legal action against the Hotel.

Abu seeks your advise as to what law is applicable to the above situation.
Abu is advised to bring an action in the law of tort for the negligence of Hotel Safe.

This is not an area in

contract law as contract law deals with agreements that are enforceable by law. Here there
is nothing to suggest that John Cautious is in a contractual relatioship with the hotel.
Abu has to prove that Hotel Safe was negligent.
There are 3 elements of the law of negligence. Abu must prove that the Hotel owes
him a duty of
care. This duty is primarily fixed by law. Hotel Safe must ensure that the premises is safe for
personsentering the Hotel.
On the facts of the case Hotel Safe failed to provide any warning signs to cautioning
that the floor
was wet. Hence Hotel Safe has breached it's duty towards Abu. The breach of duty
must have resulted in the person suffering damages.
On the facts this is satisfied as Abu sustained severe injuries and Abu can claim for
damages as
compensation.

2.Briefly explain and give examples of the following classes of law

i) Public law
- law governing the relationship between individuals and the State
- public law consists of constitutional law and criminal
- constitutional law concerns any right and duties of citizens under the constitution.
- criminal law covers offences against the state.
ii) Private law
- concerns matters that affect the rights and duties of individuals amongst
themselves. - known as civil law - consists of law on contract, tort and trust
- give an example under contract , tort or trust.

iii) International law

- international law concerns law
- divided into public international law and private international law.
- Public international law is the law that prevails between States
-Private international law is part of municipal law as a result of which in every country
there will be a different version of it. Private international law consists
of the rules that guide a judge when the laws of more than one country
affect a case (conflict of laws).

iv) Syariah law

Article 121(1A) FC provides for dual justice system:
- Secular laws (Public and Private)
- Shariah laws (only applicable to Muslims)
- Shariah law administered in each State
- deals with property matters
- enforced in the Syariah courts

3.Briefly describe the functions of the following courts in Malaysia

i)Federal court
- It is the highest court in Malaysia
- Art121 (1) FC provides that Federal Court shall have appellate,original
consultative/advisory role, but does not cover Shariah law
- Federal court has the EXCLUSIVE jurisdiction to determine any question regarding the
validity of the law made by Parliament Federal court hears disputes on any questions
concerning the Federal and State Consitution. - FC can hear and determine
appeals made by the Court of Appeal - Art 121 (2) FC
- FC can advise the Agong on any question relating to the constitution.

ii) Court of Appeal

Art 121(1B) - to hear and determine appeals from High court.
It is the final court of appeal from decisions of the High court.
It hears both civil and criminal appeals.

iii) High court

The HC has both original jurisdiction and appellate jurisdiction
The High Courts have unlimited jurisdiction in all criminal matters. Can pass sentence
punishable by death .
- High Courts have unlimited civil jurisdiction, and generally hear actions where the claim
exceeds RM250,000, other than actions involving motor vehicle accidents, landlord and
tenant disputes and distress.
- HC can hear and determine appeals against the decisions of the lower courts

iv) Sessions Court

- Sessions Court has the jurisdiction to hear both criminal and civil cases.
- Sessions Court has criminal jurisdiction to try all offences other than offences punishable
with death, it cannot impose a death sentence.
- Sessions Court has unlimited civil jurisdiction to hear :
(a) running down cases, landlord and tenant, and distress;
(b) to try other suits where the amount in dispute does not exceed RM250,000.00

v) Magistrates court
-Magistrates have the powers to hear both criminal and civil matters.
In criminal matters, First Class Magistrates' Courts generally have power to try all offences
i) maximum term of imprisonment does not exceed 10 years which are punishable with
fine only, Magistrate may pass any sentence not exceeding
a) 5 years imprisonment;
b) a fine of RM10,000.00;
c) whipping up to 12 strokes.

In civil jurisdiction - not exceesing RM25.000.

4.Explain and state examples of the various sources of Malaysian law.

Sources of law means the legal rules that make up the law in Malaysia.
There are 2 types of sources that is written and unwritten sources.

Written sources are

- Federal constitution- highest law in msia
- sets out the legal framework and rights of Malaysian citizens

- Parliamentary legislation
- laws enacted by Parliament
- these laws are subject to the FC

- State constitution - state law

- governing laws in the particular state

- Subsidiary legislation- order, regulation, notification, by- law, proclamation that have
legislative
effect
- Parlianment confers a power to make delegated legislation on a government
minister or another person or body
Unwritten sources - English common law - do not originate from malaysian law
- application of english law is specified in the statutes
- only apply when there is no specific laws applicable to it

Judicial decisions - Doctrine of binding precedent/ stare decisis

- decisions of seperior courts binding on inferior/ lower courts
- Inferior courts must follow and they cannot question the law made by higher courts

Customs - also known as Adat law , eg adat perpatih. adat temenggung

5.Briefly describe and explain what is meant by the term “ Law”.

- body of enacted or customary rules recognized by the community as binding
- Sir John Salmond - body of principles recognized and applied by the State in the
administration of justice. John Austin - law is a command by a superior being to an
inferior
being and it is followed by a legal sanction if the law is not obeyed. It has a coercive(fear)
effect,

In Malaysia , the Federal Constitution is the highest law of the land. It sets out the legal
framework of law, it spells out the right and duties of the citizens and it also
sets the duties
and powers of the Federal and State Governments.

Divided into public law and private law.

Public law
- law governing the relationship between individuals and the State
- public law consists of constitutional law and criminal

Private law
- concerns matters that affect the rights and duties of individuals amongst themselves.
known as civil law
- consists of law on contract, tort and trust

6.List the similarities and differences between legislation and subsidiary

legislation.
 Parliamentary legislation
- laws enacted by Parliament
- these laws are subject to the FC
- these laws are not supreme

Subsidiary Legislation
- order, regulation, notification, by- law, proclamation that have legislative effect
- pt confers powers a power to local authorities , govt minister to make sl

similarities
- these laws are subject to the FC
- these laws are not supreme
- both are made by Parliament
- both have legislative effect.

Differences
- to modify/amend legislation need 2/3 majority
- Subsidiary legislation can be amended easily
- Pt has insufficient time and technical knowledge to enact all kinds of law.
- Subsidiary legislation fills in the gap left by Parliament
- SL can be amended or modified easily
- can be speedier to implement
- can be tailored to suit a particular situation
- SL is more advantageous than legislation

7.Briefly explain the hierarchy of the Malaysian courts.

Article 121 (1A) FC provides for dual justice system:
- Secular laws (Public and Private)
- Shariah laws applicable only in Shariah court
- The Malaysia there are 2 types of trials ie criminal and civil.(secular laws)
- The courts have both criminal jurisdiction and civil jurisdiction.

- Syariah law is inapplicable in the Malaysian Judiciary and will be

administered separately
in Syariah courts

The courts structure is divided into Superior Courts and Subordinate Courts.
- Superior courts consist of Federal Court, Court of Appeal and High Court
- Subordinate courts consist of Sessions court, Magistrates Court and Penghulu court

Federal court
court of appeal
High court
sessions court
Magistrate's courts
Penghulu courts.

Answer true / false for the following statements.

1. A sole proprietor enters into contracts in his own name and may be sued personally.
2. An active partner this is one who, though possibly known to outsiders as a partner,
takes no active part in the management of the business.

3. During the post incorporation step, the proposed name for the company must be
reserved for three months.

4 According to the Veil of Incorporation, only the company will be liable for all debts.

5 The death of all company’s members or controller will affect the existence of the
company

6 A Director must not be an undischarged bankrupt.

7 Only a private company limited by shares need to hold a statutory meeting.

8. Specific goods are goods which will be manufactured or produced or acquired by the
seller
after the making of the contract.

9. It shall be noted that the very basic difference between hire-purchase agreement and
ordinary/outright sale of goods is that there is no transfer of title or ownership upon the
entry of hire-purchase agreement.

10 A salaried partner is a partner who actively and openly engages in the business.

11. When Memorandum of Association has been registered, the registrar will issue the certificate of
incorporation.

12. The case of Salomon v Salomon established the principle that a company is a separate legal person from its
members

13. offer + Acceptance = Contract

14. An acceptance must be absolute and unqualified.

15. In Malaysia, an ‘infant’ or ‘minor’ is a person under the age of 21.

16. An offer can be revoked by the lapse of the time prescribed in the proposal for its acceptance.

17. The rights written in the Constitution can only be changed by one-third majority of the total number of
members of the legislature.

18. Judicial decisions are sources of written law in Malaysia.

19. Public law is further subdivided to constitutional law and criminal law.

20. Owner is not a party to a Hire Purchase contract

MULTIPLE CHOICE QUESTIONS

1. The following are true except

A. Federal Court has both original jurisdiction and appellate jurisdiction

B. Appeal from Magistrate’s Court goes to the Sessions Court
C. Appeal from High Court goes to the Court of Appeal
D. Court of Appeal hears appeal cases only

2. Which of the following are not among the courts in the current Malaysian courts hierarchy?

A. Sessions Court
B. Court of Appeal
C. Supreme Court
D. Magistrate’s Court

3. The following are true about the Federal Constitution of Malaysia except
A. It gives power to make laws
B. It is supreme law of the land
C. All laws passed after independence will be in line with the Constitution
D. It can be modified by the Prime Minister of Malaysia

4. What is the correct statement about subsidiary legislation?

A.It is enacted by persons or bodies to whom the power to make the subsidiary legislation is delegated
B.Such persons or bodies may include the Yang di-Pertuan Agong, ministers, and local government
authorities
C.Like legislation, subsidiary legislation must not contravene its principal or parent Act or the Constitution.
Otherwise, it will be void for being ultra vires.
D All the above

5. One of the following is an element of a contract:-

A. offeror
B. invitation to treat
C. consideration
D. agreement

6. Minors can enter into valid contracts if they concern the following types of contracts except contracts
regarding:-

A. necessaries
B. hire-purchase of motor vehicles
C. scholarships
D. insurance
7. According to the following doctrine, only the parties to a contract can enforce the rights or be subject to the
obligations which arise under it:-

A. doctrine of human rights

B. doctrine of strict liability
C. doctrine of ‘first in first out’
D. doctrine of ‘privity of contract’

8. The following are among types of company classified on the basis of the members’ liability, except:-

A. company limited by shares

B. company limited by both shares and guarantees
C. unlimited company
D. private company

9. During the pre-incorporation steps, how long will the Registrar reserve the proposed name of the company?

A. 12 months
B. 1 month
C. 3 months
D. 4 months

10. The following are post-incorporation requirements except:-

A. establish a minutes book

B. prepare a statutory declaration stating that all or any of the requirements of the Company Act have
been complied
C. open a bank account
D. establish and maintain accounting records

STRUCTURED QUESTIONS

1. a) Explain in your own words the definition of law? (2 marks)

b) Name the three components classified under Private Law. (3 marks)
c) Identify the five sources of written law in Malaysia. (5 marks)

2. a) Name the two parties in a contract. (2 marks)

b) Briefly explain any three elements of a contract. (6 marks)
c) Define an invitation to treat. (2 marks)

3. a) Briefly explain the effects of incorporation (8 marks)

b) Identify any two (2) of the information that needs to be included in the
Memorandum of Association (MA) of a company. (2 marks)

4. Define what is the highest law in Malaysia (3marks)

5. What is subsidiary legislation and how is it different from Legislation? (5 marks)

6. Briefly describe what is written law. Please provide your answer with examples.
(5 marks)

7. Briefly describe what is unwritten law, Please provide your answer with examples
(5 marks)

8. What are sources of law?

9. Briefly explain the followings:

i) judicial decisions
ii) common law and equity
iii) customs
iv) subsidiary legislation
v) Federal constitution

CASE STUDY

1. On 23 February 2008 Susan mailed a letter to her friend Micheal offering to

sell Micheal
her Lamborghini LP640 automobile for RM1 million.

Micheal intends to purchase the Lamborghini but he is not sure of the

essential elements of a valid contract.

Micheal consults you. You are required to advise Micheal on the essential
elements of a
contract in relation to the scenario above. (10 marks)

Micheal is advised that before parties can reach a contractual agreement , the
essential
elements of the contract must be present. Micheal is advised that the law of contract
in
Malaysia is governed by the Contracts Act 1950 (CA 1950)

On the facts , Susan mailed a letter to Micheal offering to sell Micheal the
automobile.The
first essential element of a contract is offer. Offer as defined in S2(a) CA 1950 is an
expression of willingness to contract on certain terms, made with the intention that
it shall become binding as soon as it is accepted by the person to whom it is
addressed.

Micheal is advised that on the facts there appears to be an offer. However an offer
must be
distinguished between an invitation to treat. An invitation to treat is not an essential
element of a contract but it is used to measure whether Susan's letter constitutes an
offer.
Invitation to treat is an invitation to offer - .Harvey v Facey.
On the facts we could conclude that Susan's letter constitutes an offer.
2. A offered to sell his house to B by letter. B accepted the offer by posting a
registered letter to A on 23-02-08.On 25-02-08, A telephones B
informing him that his Ferrari is no
longer for sale and that he wished to revoke the offer .
Advise B as to whether there is a valid contract. (5 marks)

In order to advise B as to whether there is a valid and binding contract between B and A
the essential elements of a contract must be satisfied.

An offer is an expression of willingness to enter into a contract. On the facts above, A is the
offeror as he has offered to sell his house to B by letter. This element is satisfied.

The offer must be accepted. A's offer was accepted by B, the offeree. Acceptance must
be absolute and unqualified..

The general rule is that acceptance must be communicated to the offeror However s 4(2) CA 1950
provides an exception when the offeree use post as a means of communication ie the postal rule.

The postal rule states that when B (offeree) has posted the letter of acceptance the transaction
becomes binding on A (offeror) eventhough he does not have knowledge of the
acceptance.

On 25-02-2008 when A informes B thatwants to revoke his offer , he ia unable to do so as there was
already acceptance and a binding contract on 23-02-08

Thus A cannot revoke the offer. B is advised that there is a legally binding contract
between B and A on 23-02-2008

3 Explain what are the essential elements of a contract (10 m)

Contracts in Malaysia are governed under the Contracts Act 1950.The essential element of a contract is
offer, acceptance,consideration, intention to create legal relations, capacity to contract

Offer
Offer as defined in S2(a) CA 1950 is an expression of willingness to contract on certain terms, made
with the intention that it shall become binding as soon as it is accepted by the person to
whom it is addressed. S2 (a) & s2(b) CA 1950

An offer must be distinguished between an invitation to treat. An invitation to treat is an invitation to

negotiate or make an offer. Harvey v Facey . It is not an essential element of a contract.

Acceptance
Once the offer is made the next element is acceptance . Acceptance must be absolute, final and unqualified.
s 7 CA 1950. Acceptance must be distinguished between a counter offer as it ,modifies
the terms of the offer and it is not an essential element of a contract.Hyde v Wrench.

Consideration
For every agreement there must be consideration. S26 CA 1950. Consideration is the price for which the
promise is made. s 2 (d) CA 1950. Dunlop v Selfridge

Intention to create legal relations - parties must have intention to create legal relations.
 Capacity - Parties must have the capacity to contract.

4. Alice wants to set up a business but she does not know which type of business she should open. Alice
comes to do for advise. You are required to advise Alice

- on the various types of business.

- advise Alice to open a company, the steps of incorporation and the benefits of opening a company

5 .A shows a brochure to B for the sale of a jersey. B orders a jersey with short sleeve bearing the logo of
Liverpool fan Club. Instead B receives a jersey with long sleeve with logo of Arsenal
Fan Club. Advise B as to his rights.

6. A buys a computer from A1 Computer shop. When A fixed the computer , the computer would not function
and exploded injuring A. Advise A as to his rights.
.

7. B Co Ltd is a private ltd company manufacturing herbal products. B Co Ltd took a loan from Bank Ever
Willing 5 years ago. Recently B Co Ltd is not making any profits and is unable to pay its
debts. Bank Ever Willing is petitioning to wind up B Co Ltd and is suing all members, 2 directos
and 1 company secretary to recover its debts.

Advise B Co Ltd and all its members.