In June 2010 Juliet entered into a contract with Romeo for buy of Romeos violin, a very rare piece

made in 1925. The purchase price was RM50, 000 and she gave a deposit of RM10, 000. It was also agreed that the violin be delivered in July 2010 to enable Romeo to perform on stage. This performance turned out to be a huge success, Romeo decided not to retire yet from performing and he informed Juliet that he did not want to sell the violin.

She is under discharge by breach on section 65 of the Contracts Act 1950. Romeo is fails to perform their obligation as agree but failure to comply with a term of the contract. A breach of contract is said to occur when a party to a contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his contractual obligations. A breach of contract is said to occur when a party to a contract expressly or impliedly fails or refuses to perform or fails to perform satisfactorily one or more of his contractual obligations In Juliets issue, I refer her to choose three ways of the possible remedies available to Juliet against Romeo for breach of contract and she can sue Romeo under the charge Sessions Courts because it has jurisdiction to try all actions and suits of the civil nature where the amount in dispute or vale of the matter does not exceed Rm250, 000 and the matter relating to land, specific performance or recession.

Firstly, Juliet can use specific performance to get Rm50, 000 worth of the violin. Specific performance is an order of the court directing to the promisor to perform specifically what he promised; i.e to carry out the term of the agreement, provided for in the specific Relief Act 1950. In section 11 (1) provides that specific performance may be granted in the following circumstances at the discretion of the Court when: i. ii. The act agreed to be done is in the performance, wholly or partly, of the trust. There exists no standard for ascertaining the actual damage caused by the nonperformance of the act agreed to be done. iii. The act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief. iv. It is probable that pecuniary compensation cannot be attained for the non-performance of the act agreed to be done.

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Romeo had agreed to sell the very rare piece Violin made in 1925 to Juliet for Rm50, 000 and he already receipted deposit Rm10, 000 from Juliet. We may argue that because the violin is so rare there are not real standard for ascertaining the actual damage caused to Juliet by the nonperformance of the contract. Hence, pecuniary compensation will not afford him adequate relief as such violin is so rare and not readily available in the market. Further, under section 21 of the specific Relief Act 1950 the court has discretion to refuse specific performance where the granting of it would cause undue hardship to the defendant and under section 20 of the Specific Relief Act 1950 where damages will provide an adequate remedy. In Yeo Long Seng v Lucky Park (Pte) Ltd178, the court refused to grant specific performance as damages could provide an adequate remedy. There has been a breach of contract by Romeo, whether the court is likely to grant an order of specific performance in favor of Juliet.

Secondly, Juliet also can use Damages of the Remedies to get Rm50, 000 or at least the deposit Rm10, 000. Therefore, damages are calculated on the basis of looking at what the position should have been if the contract had been properly performed. In section 74 (1) said when a contract has been broken, the part who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from the breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. And (2) said Such compensation is not to be given for any remote and indirect loss or damage sustained by reason of the breach. In the recent case of Heng Hang Khim v Sineo Entreprise Sdn Bhd152, the High Court held that the plaintiff was entitled to a refund of the sum paid as part purchase payment which was compensation for loss or damage caused by breach of contract.

On the other hand, if the Specific performance and Damages of the remedies do not accept on this question, Juliet only can use Rescission of the Remedies to get back her deposit Rm10, 000 and Romeo keep his violin. However, the remedy of rescission is narrower than damages for breach of the contract as it will not cover damages which might flow naturally and reasonably from the injury.

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To conclude, Juliet use Specific performance, Damages or Rescission of the remedies available for breach of the contract to sue Romeo under charge of the Sessions Court and to get RM50, 000 or at least can get back the deposit Rm10, 000 that she paid to Romeo.

References:

Lee Mei Pheng., & Ivan Jeron Detta, 2009, Business Law Oxford University Press Visu Sinnadurai, 2004, Law of Contract, 3rd edition, Malayan Law Journal

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