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Q1. A.

Partnership is defined by Section 3(1) of the Partnership Act 1961 as the relation,
which subsists between persons carrying on a business in common with a view of
profit. No person may be a partner with himself. There must be at least two or more
persons to form a partnership. Section 3(2) excludes from statutory definition of
partnership.
The relation between members of any company association which is:a) registered as a company under Companies Act, 1965 or as a co-operative society
under any written law relating to co-operative societies or
b) formed or incorporated by or in pursuance ofi) any other law having effect in Malaysia or any part thereof; or
ii) letters, patent, Royal Charter or Act of the Parliament of the United Kingdom.
Partners are agent of the partnership firm. Therefore, 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 firms business. (Section 7 of the Partnership Act)
Case Study:
The relationship, which subsists, is one contract. A partnership agreement is a
contract. However, it is not enough just to agree to be partners; you must also be in
a business, which has started. eg. if Airil and Juanpe decide that they will run a shop
as partners, they are not partners in the eye of the law until the shop is actually
operating. Preparation stage is not partnership contract. as we can see in the case
of Spicer (Keith) Ltd v Mansell [1970] 1 All ER 462, M and B lost their jobs. They
agreed to go into business together and for a limited company to run a restaurant.
While they were forming the company and before it had received its certificate of
incorporation from the registrar, B ordered some goods from Speciers for the
business. They also opened a bank account in the name of the company. The
company was eventually formed but not bound by the contract which B had made
because it was not in existence at the time.
B went bankrupt before Spicers had been paid. So rather than prove in a bankrupt,
Spicer sued M on the basis that he was a partner of B. Held. B and M were not
partners. They were not carrying business together in partnership. They were
preparing to carry on a business as a company as soon as they could.

1.B. There are several ways in which a partnership may be dissolved.


Dissolution by expiration or notice
(1) Subject to any agreement between the partners, a partnership is dissolved
(a) if entered into for a fixed term, by the expiration of that term;
(b) if entered into for a single adventure or undertaking, by the termination of that
adventure or undertaking; or
(c) if entered into for an undefined time, by any partner giving notice to the other or
others of his intention to dissolve the partnership.
(2) In the last-mentioned case the partnership is dissolved as from the date
mentioned in the notice as the date of dissolution, or, if no date is so mentioned, as
from the date of the communication of the notice.
Dissolution by bankruptcy, death or charge
(1) Subject to any agreement between the partners, every partnership is dissolved
as regards all the partners by the death or bankruptcy of any partner.
(2) A partnership may, at the option of the other partners, be dissolved if any
partner suffers his share of the partnership property to be charged under this Act for
his separate debt.
Dissolution by illegality of partnership
A partnership is in every case dissolved by the happening of any event which makes
it unlawful for the business of the firm to be carried on or for the members of the
firm to carry it on in partnership.
Dissolution by the court
On application by a partner, the court may decree a dissolution of the partnership in
any of the following cases:
(a) when a partner is found lunatic or is shown, to the satisfaction of the court, to be
of permanently unsound mind, in either of which cases the application may be
made as well on behalf of that partner by his committee, or next friend, or person
having title to intervene as by any other partner;
(b) when a partner, other than the partner suing, becomes in any other way
permanently incapable of performing his part of the partnership contract;
(c) when a partner, other than the partner suing, has been guilty of such conduct
as, in the opinion of the court, regard being had to the nature of the business, is
calculated to affect prejudicially the carrying on of the business;

(d) when a partner, other than the partner suing, wilfully or persistently commits a
breach of the partnership agreement or otherwise so conducts himself in matters
relating to the partnership business that it is not reasonably practicable for the
other partner or partners to carry on the business in partnership with him;
(e) when the business of the partnership can only be carried on at a loss; and
(f) whenever in any case circumstances have arisen which, in the opinion of the
court, render it just and equitable that the partnership be dissolved.

Question No 2.
For apply Sale of Goods Act, 1957, it must be a goods. According to Section 2, Sale
of Goods Act, 1957, goods as meaning every kind of movable property other than
actionable claims (suing another person for a debt or for any other person) 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. Therefore, land is excluded from the Sale of Goods Act, 1957.For
apply Sale of Goods Act, 1957, it must be a contract of sale. According to Section
4(1) Sale of goods Act, 1957, contract of sale as a contract whereby the seller
transfers or agrees to transfer to property in goods to the buyer for a price.
Therefore, a sale occurs when the ownership or property in goods passes or its
transferred to the buyer. As the conclusion, a car can be categorize as a good.

Implied undertaking
Section 14. In a contract of sale, unless the circumstances of the contract are
such as to show a different intention, there is
(a) an implied condition on the part of the seller, that, in the case of a sale, he has a
right to sell the goods, and that, in the case of an agreement to sell, he will have a
right to sell the goods at the time when the property is to pass;
(b) an implied warranty that the buyer shall have and enjoy quiet possession of the
goods;
(c) an implied warranty that the goods shall be free from any charge or
encumbrance in favour of any third party not declared or known to the buyer before
or at the time when the contract is made.

Section 15. Where there is a contract for the sale of goods by description there is
an implied condition that the goods shall correspond with the description; and, if the
sale is by sample as well as by description, it is not sufficient that the bulk of the
goods corresponds with the sample if the goods do not also correspond with the
description.

Implied condition as to quality or fitness

Section 16. (1) Subject to this Act and of any other law for the time being in force,
there is no implied warranty or condition as to the quality or fitness for any
particular purpose of goods supplied under a contract of sale, except as follows:
(a) Where the buyer, expressly or by implication makes known to the seller the
particular purpose for which the goods are required, so as to show that the buyer
relies on the sellers skill or judgment, and the goods are of a description which it is
in the course of the sellers business to supply (whether he is the manufacturer or
producer or not) there is an implied condition that the goods shall be reasonably fit
for such purpose:
Provided that, in the case of a contract for the sale of a specified article under its
patent or other trade name there is no implied condition as to its fitness for any
particular purpose.
(b) Where goods are bought by description from a seller who deals in goods of that
description (whether he is the manufacturer or producer or not) there is an implied
condition that the goods shall be of merchantable quality:
Provided that if the buyer has examined the goods, there shall be no implied
condition as regards defects which such examined ought to have revealed.
- An implied warranty or condition as to quality or fitness for a particular purpose
may be annexed by the usage of trade.
- An express warranty or condition does not negative a warranty or condition
implied by this Act unless inconsistent therewith.

Section 17. (1) A contract of sale is a contract for sale by sample where there is a
term in the contract express or implied to that effect.
- In the case of a contract for sale by sample there is an implied condition
- that the bulk shall correspond with the sample in quality;
- that the buyer shall have a reasonable opportunity of comparing the bulk with the
sample;
- that the goods shall be free from any defect rendering them un merchantable
which would not be apparent on reasonable examination of the sample.

As per By section 27 of the sale of goods act we can see that when a good is sold
by a person who is not the owner without the authority of the owner the buyer
attains no better title than the owner unless owner is precluded from denying the
seller authority to do so. If we look at Heap V Motorists Advisory Agency Ltd We can
see here Heap was induced to give North a car to show to a false client who ended
up using to for a few weeks then sold it to the defendant. Their action succeeded
because they were precluded from denying North Authority to sell. In order for the
title to have the Negligence must have amounted to a disregard in his obligations.

Nemo dat quod non habet rule


Nemo dat quod non habet rule as explained previously, simply means that the
buyer of the goods does not acquire the title of the goods if they are bought from a
person who is not the owner of the goods or does not have authority from the owner
to sell the goods. This rule seeks to protect the right of ownership, and therefore the
sellers interest. The rule is illustrated in Ng Ngat Siang v. Arab-Malaysian Finance
Bhd. @ Anor.

Case Study:
Ng Ngat Siang v. Arab-Malaysian Finance Bhd. @ Anor. (1988) 3 M.L.J.319
Facts: The plaintiff bought a car from the second defendant. To affect the transfer
of ownership of the car into the plaintiffs name, the second defendant had to pay
off MUI Finance from whom he had earlier obtained a hire-purchase facility. For this
purpose, the second defendant retained the registration card. After obtaining the
cancellation of endorsement of MUIs ownership, the second defendant sold the car
to B whose purchase was financed by the first defendant. The first defendant
endorsed its ownership claim on the registration card. The plaintiff applied to the
court to determine whether or not the first defendant had a better title to the car.
Held: allowing the application:
After a full payment was made by the second defendant to MUI Finance and MUI
Finance had relinquished all rights to ownership over the car, the plaintiff had
acquired ownership to the car and the second defendants further dealings on the
car with the first defendant are therefore illegal. To that end, the first defendant
acquired no title or interest over the car when they purchased it and their only
remedy, if any, is against the second defendant personally for the return of the
purchase price but as against the plaintiff they cannot claim any right ownership
over the car.
Conclusion:
By applying all the act above, we conclude that Mr. Pity can claim his deposit with
the amount of RM9,900.00 and a further sum of RM17,192.00 which were the
installments paid to Mr. Kaya. From the section 27 Sale of Good Act, mr. Kaya is not
the valid owner of the BMW no 8888 and hence he cant give the good title to Mr.
Pity. Mr. Pity can also claim his damages of the expenses incurred to hire a car and
furthermore causing him to be blacklisted in JPJ. Although theres an hire purchase
agreement dated on 19.03.1991, the contract agreement should void due to Mr.
Kaya are not the right owner of the BMW No.8888.

Question 3 a.
As a defending lawyer for En. Pokok, we will go thru the Employment Act 1955.
According to the Employment Act 1955, section 15 (2), An employee shall be
deemed to have broken his contract of service with the employer if he has been
continuously absent from work for more than two consecutive working days without
prior leave from his employer, unless he has a reasonable excuse for such absence
and has informed or attempted to inform his employer of such excuse prior to or at
the earliest opportunity during such absence.
Company cannot terminate En. Pokok because he attempt was made to inform
company for his absence thru his friend to En.Daun, supervisor of En. Pokok on the
23.11.1996 and on the 26.11.1996 by verbally to the officer on duty.
This conclude that the company shouldnt terminate En. Pokok but to conduct
domestic inquiry prior to terminating En. Pokok.
During the investigation period, company have the right to issue a show cause
letter to en. Pokok with either 7/14 days to reply with the reasonable fact and
explanation. During this period, company may suspend En. Pokok or with half
salary.
Once the show cause letter reply by en. Pokok, the panel members will made a
recommendation to the company.
Follow by the Section 14(1) of Employee Act 1955,
14. Termination of contract tor special reasons
(1) An employer may, on the grounds of misconduct inconsistent with the fulfilment
of the express or implied conditions of his service, after due inquiry -

(a) dismiss without notice the employee;

(b) downgrade the employee; or

(c) impose any other lesser punishment as he deems just and fit, and where a
punishment of suspension without wages is imposed, it shall not exceed a
period of two weeks.

Either option a, b, or c can be select as the decision action to be taken on En. Pokok.
This conclude the company did not follow the Act and make the correct decision.

Question 3.b
As a defending lawyer for the company, we will look deep into the standard
procedure before they decide to terminate their employee when theres any offence
against their company rules.
According to Mr. Bad(Another security guard) and Ms. Sexy (Maid), they did not
actually see Mr. Good sleeping . This can conclude its just an assumption and this
cant be any evidence to judge Mr. Good sleeping during his duty.
Although Mr. Good did the same offence 3 years ago, this will be the issue
condonation but not to be the right to justify Mr. Good will repeat the same offence.
They should conduct a domestic inquiry to investigate either Mr. Good sleep during
his duty period with witness and sufficient evidence.
The conclusion, my client should follow the standard procedure to conduct the
domestic enquiry before they make decision to dismiss Mr. Good. They should follow
the Employment Act 1955 Section 14 (1) to decide the termination after the inquiry.

Question 4.

Ref:
https://www.scribd.com/doc/5568416/Sales-of-Good-Answer-SC-1-1ii
http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20382.pdf
http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%20382.pdf
http://www.ilo.org/dyn/natlex/docs/WEBTEXT/48055/66265/E55mys01.htm#c15