RESPONDENTS GROUNDS: 3rd Arguments: It is submitted that the payment of lesser sum, RM 24 000 with a bottle of wine does

not constitute a sufficient and adequate consideration. The above ground is supported as follows: LAW According to Section 26 of Contract Act 1950, the agreement made without consideration is void unless it comes under one of its exceptions. It means that any contract without consideration is invalid and unenforceable , therefore it is not binding to both parties. Consideration has been defined in Section 2(d) of Contract Act 1950: When at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or obtains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration from the promise. In simple way, consideration can be said as an act or abstinence or promise by the promisee or any other person, as required by the promisor in return for his promise. The consideration must be something which has value in the eyes of law. It means that to have the value in the eyes of law, the consideration may not be adequate but it must be sufficient. Under Malaysian law, this rule of consideration need not be adequate but must be sufficient is explained in explanation 2 of the Section 26 of Contract Act 1950, the agreement is not void merely because the consideration is inadequate. This situation is illustrated in illustration (f) of Section 26 of Contract Act 1950 and this rule also had been used in the case of Phang Swee kim v Beh I Hock (1964) MLJ 383. The case above is about the sale of a land for $500 when it was worth more than that. Seller refused to honour promise citing that the price was inadequate for a consideration. The trail court judge held that the agreement was void due to inadequacy of consideration. However upon appeal to the Federal Court, the decision of the Trail judge was reversed.

However, the inadequacy of the consideration maybe taken into account by the court in determining the question whether the consent of the promisor is freely given or not as illustrated in the illustration (g) of the Contract Act 1950. There are several circumstances under Malaysian law that constitute sufficient consideration which includes payment of lesser sum in discharge of a larger sum, as provided in Section 64 of Contract Act 1950. English Common Law Doctrine of 'Accord and Satisfaction' Section 64 of Contract Act 1950 represents a departure from the Common Law in England. This is because, the General Rule in English Law as established in the Pinnels case in 1602. In Pinnels case (1602) 77 ER 237, Pinnel has sued Cole in debt for 8 10s due on a bond on 11th November 1600. Coles defence was that, at Pinnels request, he had paid him 5 2s 6d on 1st October, and that Pinnel had accepted this payment in full satisfaction of the original dept. In this case, Brian CJ in delivering the judgement considered that the payment of a smaller sum is not a satisfaction (discharge) of an obligation to pay a larger sum. This means that a lesser amount cannot be a satisfaction to the plaintiff for a greater sum because it is normally insufficient to affect a discharge at law or even in equity. In English rule of 'accord and satisfaction' a creditor might accept anything in satisfaction of his debt except a lesser amount of money. For example, if A owes B RM500 and B agrees to accept RM100 in full satisfaction of the debt, but B is not bound by the promise made. Therefore, B can still sue A to pay the balance of the full amount. In the case of Charles Rickards v Oppenheim [1950] 1 KB 616, p 626, The Supreme Court of India on 5 April 2006 ruled in a rent case that mere acceptance of the rent by the landlord after serving notices of eviction on the tenant does not amount to waiver because his filing the suit for eviction after receiving the rent made his intention clear. Moreover, even if the rent was neither tendered nor accepted the landlord in the event of his success would be entitled to the arrears of rent.

Denning LJ in the case above laid down the requirements of waiver as follows: In order to constitute a waiver there must be conduct, which leads the other party reasonably to believe that the strict legal rights will not be insisted upon. The whole essence

of waiver is that there must be conduct, which evinces an intention to affect the legal relations of the parties. If that cannot properly be inferred, there is no waiver.

Doctrine of Waiver of Performance in Malaysia Meanwhile, in contrast to the Pinnels case, Section 64 of Malaysian Contract Act provide broader rule of waiver as follows: Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit. In this section, every promise may waive the performance of the promise made to him. Meaning that, waiver of performance without any consideration would still be valid. The promisee upon waiving his right, for example to accept smaller sum can no longer claim for the balance of the whole debt, even though he receives no consideration for such waiver. His promise to waive his right is now binding him. By having Section 64 of Contract Act to govern this matter, therefore the Pinnels case is no longer applicable in Malaysia as whenever certain provision of Contract Law is in conflict with the English Law, the Contract Law must prevail by virtue of Civil Law Act. The English Common Law will only be applicable if there is no provision in the Contract Act or any Malaysian Law to deal with the particular matter. In the case of Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287, the Supreme Court case, Gunn Chit Tuan SCJ in his judgment submitted that Section 64 of our Contracts Act 1950 represents a departure from the common law in England. Our law on waiver in Section 64 is similar to the Indian law on the general principles of waiver under which it is open to a promisee to dispense with or remit wholly or in part the performance of the promise made to him or he can accept any promise which he thinks fit. Under our law neither consideration nor an agreement will be necessary. However in the same case, Gunn Chit Tuan SCJ has also submitted that: But in this case we also agreed with the respondent that it had not been shown to the trial judge or to us that the respondent had intentionally foregone its claims. On the other hand the learned judge who saw and heard Mr Ong in the witness box accepted his evidence that the respondent did not intend to abandon its claims under the various contracts. We therefore agreed with the learned judge that as a matter of fact waiver did not apply in this case.

In this case, the appellant had failed to produce the witness and the evidence that to prove the respondent has intentionally and willingly foregone _______________. Thus, the respondent by successfully proving that he had no intention to foregone the ____________ will render the waiver to be in valid. Hence, the respondent can

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APPLICATION In application to the situation in hand, Joe Black was not expressing his intention to waive his right to the payment of balance of the whole debt, RM 4000. There is no declaration on his part to accept the RM24000 with a bottle of wine as a full satisfaction for the original debt. Furthermore in this case, Joe never said his intention to let go RM4000 by not saying he will not ask for the balance of the debt latter on. By relying on the case of Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287, we submit that Joe was not intended to waive his right for the balance of the whole debt, RM4000. Joe in this case may probably never intend to forgive the amount of RM4000. He may decided to accept the RM24000 with a bottle of wine by considering that he is giving time to Rachel Berry to pay him for the balance of RM4000 as Rachel Berry said that she is now only afford to pay RM 24000. Joe by depending on the statement made by Rachel, may think that even though Rachel in that time was having a financial difficulties, she will pay the balance of RM4000 after she completed her new film as she had disclosed to Joe that she manage to get the role in the new movie and Joe at the time of accepting the amount of RM24000, never know that Rachels new film will resulted flop. CONCLUSION In conclusion, we submit that the payment of a lesser sum, RM24000 with a bottle of wine made by Rachel Berry is inadequate and insufficient consideration as Joe never intended to waive his right to the balance of the whole debt.