Fundamentals of Law

Fiona is keen to take advantage of her uncle’s offer but is unsure whether she can raise such a large amount of money by the end of September. She phones her uncle to find out whether she can have until after Christmas to pay. He uncle is away at a conference and so Fiona leaves a message with his secretary. Two weeks pass by and, as Fiona has not heard from her uncle, she arranges a loan with her bank. On 28 September she writes to her uncle accepting his offer and enclosing a cheque for RM15,000. On 30 September, her uncle phones to say that he has already sold the equipment to someone else.

Advise Fiona. (50 marks) Question 2 Critically discuss the doctrine of judicial precedent of the Malaysian legal system with the current role. (50 marks)

1.1 Introduction

According to the case study, where Fiona, a newly qualified dentist, receives a letter from her uncle on the 13th September saying that he is prepared to let Fiona have all of his dental equipment for RM15,000. He told Fiona to reply him quickly as there is another offer from his colleague. After knowing this, Fiona wants to accept her uncle’s offer but wasn’t sure if she could raise enough money by the end of September. She then called her uncle to make a counter offer by asking if she could pay after Christmas.

However, as her uncle was away at a conference, he couldn’t answer the call and the Fiona leaves a message with his secretary. After two weeks, Fiona has not heard about her uncle, she then arranges a loan with her bank and on 28th September, she wrote to her uncle accepting his offer together enclosing cheques of RM15, 000. Nevertheless, he uncle replied her by phone saying that he has already sold the equipment to someone else. 1.2 Offer

An offer is an expression of a willingness to contract on certain terms made with the intention that a binding agreement will exist once the offer is accepted. According to Contracts Act 1950, an agreement can be made between 2 or more parties, there must be expression of willingness to enter into a contract, offer must be made with a legal intention that it shall be binding and legally enforceable by law. Based on section 2 (c) of Contracts Act 1950, the person who made the offer is caller and “offeror” while the person who accepts the offer is called the “offeree”. From the case study above the offeror is the Fiona’s uncle while the offeree is Fiona.

There are 2 types of offer which is first the unilateral. In an unilateral offer, there is only one party that makes promise in the contract and the offeree accepts the offer by performing a certain action. It is usually where the offeror made an offer to the world in whole through an advertisement and the once the act is performed the offeree will be considered as accepted by the offeree such as the case of Carlill v Carbolic Smoke Ball Company [1893].

According to this case, The Carbolic Smoke Ball Company made a product called a smoke ball that it claimed could protect the user from getting influenza or flu. The Company published advertisements claiming that it would pay £100 to anyone who still got sick with influenza after using its product..The company even deposited £1000 with the Bank, to show their genuine intention in the matter. On the other side, Mrs Carlill bought one of the balls and used it in the manner specified, yet still managed to get influenza.

When she asked for the reward the Carbolic Company claimed that there was no enforceable contract between it and the user of the smoke ball on the grounds that there was no acceptance of the offer, because Mrs Carlill had never notified the Company that she accepted its offer, nor furnished any consideration. The court held that in unilateral offers, the advertisement is an offer which was accepted by Mrs Carlill.

The courts also looked at the parties intention, such as the fact that 1000 pounds were deposited in the Bank showed a genuine intention to create a legal relationship. There was consideration furnished by Mrs Carlill when she purchased the smoke balls. Hence there was a binding contract. The second type of offer is bilateral which is an agreement in which both parties make a promise or promises to the other party. For example A offers to sell his motorcycle to B for RM2500 . B accepts the offer by promising to pay A. Offer can be made by using 2 methods which according to section 9 Contracts Act 1950 are by expressly such as in writing and impliedly such as by conduct or orally.

On the other hand, invitation to treat is an action by one party which may appear to be a contractual offer but which is actually inviting others to make an offer of their own. Invitation to treat can be made in many form such as by advertisement (Harris v Nikerson [1873]), catalogues, price lists (Grainger & Sons v Gough [1895]), goods displayed in shop windows and shelves (Fisher v Bell [1961]), auctions (Barry v Hearhcote Ball & Co. Ltd [2001] ), ticket cases (Chapelton v Barry UDC [1940]), and tenders (Spencer v Harding [1870]). Based on the situation above, Fiona’s uncle has made an offer with Fiona. Her uncle wrote a letter on 13th September to Fiona, if she agree with his offer by having his dental equipment for RM15,000. The types of offer used by uncle is bilateral.

This is an offer and not an invitation to treat because the uncle communicated to the offeree by expressly which is by writing a letter to Fiona ( formal writing), and Fiona’s uncle also has an legal intention or willingness to make an offer and contract with Fiona. Besides that the offer does not appear to be a contractual offer but which is actually inviting others to make an offer of their own whereby uncle sent a letter and expects for Fiona to either accept or rejects the offer not by making an offer to the uncle. 1.3 Counter offer

Later on, Fiona eagerly wanted to take advantage of her uncle’s offer but she is not sure if she can collect RM15,000 by September thus she called her uncle to find out whether she can have until after Christmas to pay. Here Fiona is trying to make a counter offer with her uncle.

According to this situation there are few reasons that cause Fiona can sue her uncle and also can claim any compensation. Based on the situation, Fiona unsure whether she can get such large amount of money in the end of September, so she call her uncle ask about whether she can pay after Christmas. This shows Fiona is trying to ask for another offer, which is to pay after Christmas.

This is consider second offer and it’s called counter offer. As counter offer usually kills the original offer then the uncle offer which is to pay by the end of September will be terminated as well. As an example of case study is the Hyde v Wrench (1840) whereby the facts of the case goes Wrench (D) offered to sell his estate to Hyde for 1,200 pounds and Hyde (P) declined. Wrench then made a final offer to sell the farm for 1,000 pounds.

Hyde in turn offered to purchase the property for 950 pounds and Wrench replied that he would consider the offer and give an answer within approximately two weeks. Wrench then ultimately rejected the offer and the plaintiff immediately replied that he accepted Wrench’s earlier offer to sell the real estate for 1,000 pounds. Wrench refused and Hyde sued for breach of contract and sought specific performance, contending that Wench’s offer had not been withdrawn prior to acceptance.

This is almost similar to Fiona’s case because Fiona also want to change the date as like how Hyde counter offer the price with Wrench. As the court held, there was no contract, thus the defendant’s original offer has been revoked by the plaintiff’s counter offer. The original offer had therefore ceased to exist and could not later be accepted. In this case of Fiona and her uncle, her counter offer has killed the uncles offer and there is no contract therefore 1.4 Option contract

Continuing the case study, when Fiona's uncle her told Fiona to reply him quickly as there is another offer from his colleague he did not give any option. Option is when the offeror undertakes to keep an offer open for a certain period of time. Besides that, the offeree also does not provide a consideration for the benefit of being given the exclusive right to accept for a certain period such as in money form or others.

Based on the case study, the uncle just mention the time he will retired which is at the end of September and means that Fiona should give him an answer before September ends. What he did also mention was asking Fiona to reply him as soon as possible as there is already an another offer from his colleagues. There is a option for uncle to sell the goods to others or keeping for Fiona until she agrees because, Fiona did not give him any form of benefit to uncle such as deposit or something. 1.5 Acceptance

From the situation state in the question, we can apply the basic principles of acceptance. Base on the principal, there are few element for a valid acceptance. The first is according to the Contract Act 1950 section 7 state that acceptance of proposal must be absolute and unqualified. If parties still in negotiation stage the agreement is not yet formed. Second is acceptance must be make in a reasonable time which depend on the circumstance of case.

The third is acceptance must be expressed in usual and reasonable manner, unless offeror prescribes the manner in which it is to be accepted. The last is acceptance must be communicated and communication is effective only if made by an authorised person. There are two types of communication methods. There are instantaneous and non- instantaneous. The instantaneous means message can be delivered immediately such as face to face, phone call and so on. Non-instantaneous method means message can’t be received immediately such as letter e-mail and so on.

According to the situation in the question, Fiona can sue the Uncle because the acceptance made by Fiona is acceptable. According to the case study uncle has mention that he will retire from his practice at the end of September. Again, Fiona writes to her uncle for accepting his offer on 29 September. The Acceptance make by the Fiona is valid because she already reply the uncle offer before the due date that mention by uncle. 1.6 Postal Rule

In addition, if the offerer is give offer by using post the offeree can accept the offer by using post too. This is considering as a correct way of acceptance. Based on the case study, the uncle is using letter as a manner to give offer to Fiona and the Fiona is also using letter to reply her uncle, therefore the acceptance make by Fiona is in a correct manner. Moreover, Fiona has already post her letter to uncle on 28 September, the acceptance already effective on that time. It is because according to the general principal of postal rules, it states that if the post is the agreed form of communication between the parties and the letter of acceptance is correctly addressed and carries the right postage stamp.

The acceptance then becomes effective when the letter is posted. Only postal acceptance produces an instantaneous legal effect but the postal offer or revocation is effective only on receipt. Here is the case that applies for this situation. Adams v Lindsell (1818), the defendant wrote to the claimant offering to sell them some wool and asking for a reply 'in the course of post'. The letter was delayed in the post. On receiving the letter the claimant posted a letter of acceptance the same day. However, due to the delay the defendant's had assumed the claimant was not interested in the wool and sold it on to a third party. The claimant sued for breach of contract. The court held that there was a valid contract which came in to existence the moment the letter of acceptance was placed in the post box. In conclusion, Fiona has replied her uncle before the due date with the correct manner; therefore uncle shouldn’t sell the equipment to other. Fiona can ask the money which has been enclosed in the letter and compensation from uncle.

Question 2: Critically discuss the doctrine of judicial precedent of the Malaysia legal system with the current role.

2.1 What is Judicial Precedent?

Judicial precedent is known as judicial decisions. It can be found in Malaysia law and fall under the category of unwritten law. Judicial precedent is commonly known as judgments that made by judges and followed the doctrine of binding precedents. Precedents are basically decisions made by judges previously in similar situations. A judicial precedent is a decision of the court that used as a source to refer on for further decision making. This is known as stare decisis (stand upon decisions) and by which precedents are authoritative and binding must be followed.

Precedent is basically a judgment or decision of a court of law cited as an authority for the legal principle embodied in its decision. Precedent may comprise res judicata, ratio decidendi and obiter dictum. In order for the doctrine of judicial precedent to work, judges must be able to determine what a point of law is. While delivering a judgment, it is necessary for the judges to state the reasons why they will come out with such decisions. The reasons which are necessary for them to reach their decision amount to ratio decidendi fo the case.

The ratio decidendi forms the legal principle which is a binding precedent. Binding precedent means the decision made must be followed in future cases that containing the same material facts. It is important for the judges to know that ratio decidendi must be separated from obiter dicta. An obiter dictum is referring to things that stated in the course of a judgment that are not necessary for the decisions.

2.2 Hierarchy of Precedents

Malaysia has a unified judicial system, and all courts take cognizance of both federal and state laws. The legal system is founded on British common law. Most cases come before magistrates and sessions courts. Religious courts decide questions of Islamic law and custom. The Malaysia legal system actually had a great influence by English legal system so Malaysian Court system also greatly influenced by the English Court System. Malaysian court system is divided into Superior Courts and Subordinate Courts.

Superior Courts are known as higher level of courts while Subordinate Courts is the lower level of courts. Superior Courts in Malaysia consist of Federal Court, Court of Appeal, High Court Peninsular Malaysia and High Court Sabah and Sarawak. While Subordinate Courts of Malaysia consists of Syariah Court, Native Court, Session Court, Juvenile Court, Magistrates Court and Penghulu’s Court. The lowest level of the Subordinate Courts is the Penghulu’s Court, it presided over by a headman who appointed by the State government for the district.

The hierarchy of Malaysian Courts System plays an important role in running the system of precedents. General rule that regulate the hierarchy of precedents is actually based on the principles that decisions of higher courts bind lower courts and some of the courts are bound by their own decision. It is important for the judges to know the hierarchy system that practices in Malaysian legal system. As mentioned earlier, lower courts will need to follow the judgments that made by higher courts in earlier stage.

2.3 Limitations and Types of Judicial Precedent

In Malaysian legal system, not every cases judges will follow or apply earlier precedents. Judges may not wish to apply precedents in some of the circumstances. First of all, when the precedent is laid down by a lower court, where the case is on appeal; judges will not apply precedents for that case. Besides that, judges will not apply precedents when they found the earlier precedent’s point of law is not correct. Last but not least, precedent is not applicable when there are material differences between the previous case and the case laying down the precedent.

There are several types of precedents which are original precedent, declaratory precedent, binding precedent and persuasive precedent. Original precedent refers the case that goes to the court for the very first time and the judgment made by judges is known as original precedent. Declaratory precedent is the judgments of a case that actually followed the precedent that made by previous case.

While binding precedent is actually referred to a precedent which from an earlier case and it must be followed even the judges do not agree with the legal reasoning. Binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions were made by a higher court. As for persuasive precedent, it is refer to no binding on the court. A judge may consider persuasive precedent and decide that it is the correct principal to follow. On other words, a judge is persuaded that he should follow the precedent. That precedent can come from courts in lower hierarchy.

2.4 Advantages and Disadvantages of Judicial Precedent

There are several advantages and disadvantages can be found in judicial precedent. The first advantage of judicial precedent is the certainty. It helps to provide certainty in law. It can be assumed that cases similar to each other are treated alike. Certainty can be the disadvantage of judicial precedent too. This can be said so if similar cases are treated exactly then the legal system will become very rigid. It can bring the meaning that, if a unfair or bad decisions had done in previous case and it will last for a longer period of time before it is changed.

Another advantage of judicial precedent is it promotes consistency and coherence. Judicial precedent is following the decisions or judgments that made by previous cases, so when the same case goes in to the court, the criminal will has a brief idea that what kind of judgments he will get and the judgments are transparently clear. Judicial precedent will be able to lead an orderly development of the law. As law can be change due to the society changes and it will be the duty for the judges to figure out a way to change the law.

For example, criminal that steal chicken from neighbor will get a judgment of imprisonment for 3months and criminal who robbed a bank will get a judgment of imprisonment for 3months too. In this situation, it is clearly shown that the judgment is unfair, so it will be the duty for the judges to find way to change the law.

In addition, judicial precedent brings uniformity in the law. Similar cases that come in to the court will be treated in the same way. This will give the legal system a sense of justice and make the system more acceptable for the public. Moreover, judicial precedent is flexible. There is several ways to avoid precedents and this enable the legal system to change and adapt into new situations. Last but not least, judicial precedent is very practical and this will be one of it advantages. It can be say so as judicial precedent is look into real cases and facts and it is different from the legislation.

Since there are advantages of judicial precedent, there also will be disadvantages for it as well. As mentioned earlier, certainty is one of the disadvantages for judicial precedent. Another disadvantage of judicial precedent is difficulties can arise while deciding what the ratio decidendi is. As sometime, there will be several ratio decidendi in it. Furthermore, judicial precedent will lead to slowness in growth for legal system. It can be say so as the law growing process will be slow down. If no cases come in to that area, judges are not allowed to make law for that area. All they can do is wait for the case to come into that area then only they can make the law.

In addition, sometimes judges may found that judicial precedent contains some illogical judgments. When the judgment is illogical, it will leave to the judges to decide whether to change the law or follow the precedents. Sometimes, judicial precedent can be very complex and bulky.

This is due to the reason that there are a lot of similar cases with plenty of decisions. It will be very difficult for the judges to make their decision whether which to choose and follow. Another disadvantage of judicial precedent is it can be very time consuming. As judges have to looks into all similar cases to find the most similar case with the facts of case and the points of law are sufficiently similar.

Lastly, judges have to know the hierarchy of the court when they want to apply judicial precedent. As in judicial precedent, lower courts must follow the precedents that make by higher court and are not allowed to follow the precedents that made by lower courts.

Both of the advantages and disadvantages of judicial precedent play an important role for the growth of law legal system and also justice to the society. Some changes can be done due to the changes of time and society. The changes will help the society able to accept judicial precedent better.

2.5 Contributions of Judicial Precedent

Nevertheless, judicial precedent actually contributes to the growth of Malaysian legal system and it acts guidance for Malaysian legal system. With the aids of judicial precedent, the judges will able to know what kind of judgments should be make for what kind of cases. This will be able to avoid illogical and unfair judgments towards the criminal. Besides that, judicial precedent helps to avoid biasness in the legal system. When there is a precedent to follow, judges are not allowed to have biasness towards any of the criminals. This will help to prevent the happened of biasness from judges towards criminal and cause the unfair jurisdiction occur.

Malaysia legal system is practicing dual system. With the existence of judicial precedent, it allows Malaysia legal system to be more lively and practical. As if judgments are done by following Book of Statutes all the time will makes the law legal system becomes very dull. Besides that, judicial precedent allows judges to change the law when there is a society changes and judges really think the previous precedent is illogical to follow. This will enable the changes of law from time to time for better sake.

Moreover, judicial precedent actually allowed the faster growth of Malaysian legal system. When the same cases keep come in to the court from time to time, the judges may start to consider what actually cause the same cases to happen again and again. The judges may decide to come out with new judgments when they think is necessary and this will contributes to the changes of law. Sometimes the law in olden days may not be so powerful to stop people from all criminal wrongdoings, by making some changes towards the law will help better in preventing all these criminal wrongdoings.

In addition, judicial precedent helps to provide justice for the Malaysian legal system. As judicial precedent is the judgments for cases that actually happened before and the judgments were discussed among judges. Before come to a decision, judges will look into previous precedent. If they found the previous precedent is illogical to follow, they will choose not to follow. They will only follow the previous precedent when the facts of case and points of law are sufficiently similar. If they think some changes should be done for the judgments due to the changes of society. Judges will discuss among themselves before they come into a decisions.

Judicial precedent will be able to contribute on making new laws. When a case comes to the court for the first time, judges will need to decide the judgments. After the judgments had been made, they may consider come out with new law that actually related to judgments. When an area has new cases coming in most of the time, the judges will be more creative and lively when they are making judgments.

As sometimes human judgments consists of emotions as well. This is totally different from judgments that followed the Book of Statutes. A new law that made based on the judgment of precedents may work better in prevention the happening of crimes.

We can conclude that actually judicial precedents play an important towards the growth of Malaysian legal system. Without it existence, Malaysian legal system will be very dull and will have lesser growth. Judicial precedent may be a bit complex and bulky but it still has its own contribution towards the growth of Malaysian legal system.

3.0 References

* School of the Build Environment. [n.d.] Judicial Precedent. [Online] Available from [Accessed on 06 Nov 2011] * E Law Resources. [n.d.] Judicial Precedent. [Online] Available from [Accessed on 06 Nov 2011] *[n.d] Judicial Precedent. [Online] Available from &rct=j&q=types%20of%20precedents&source=web&cd=4&ved=0CDUQFjAD& [Accessed on 06 Nov 2011] * Law Teacher. [2011] Judicial Precedent. [Online] Available from [Accessed on 06 Nov 2011] * Example [2011] Doctrine of Judicial Precedent. [Online] Available from [Accessed on 06 Nov 2011] * Chief Register’s Office Federal Court of Malaysia Official Website [25 May 2011]Judicial History of Malaysia.

[Online] Available from [Accessed on 06 Nov 2011] * Coursework info. [n.d.] Judicial Precedents has Many Advantages and Disadvantages. [Online] Available from [Accessed on 06 Nov 2011] * [n.d.] Malaysia Legal System. [Online] Available from [Accessed on 06 Nov 2011]