Professional Documents
Culture Documents
LAW OF CONTRACT
2.1 Understand the basic principle of Law of Contract.
2.1.1 Explain contracts according to Contract Act 1950
2.1.2 Explain the essentials of valid and enforceable contract:
a. Agreement (offer/proposal/acceptance)
b. Consideration
c. Intention
d. Capacity
e. Free consent
f. Lawful object
g. Certainty of term
h. Required formality
2.1.3 Explain the causes of void contract, voidable contract and unenforceable
contract:
a. Coercion
b. Undue influence
c. Fraud
d. Misrepresentation
e. Mistake
2.1.4 Explain the unlawful agreement
a. Agreement forbidden by laws
b. Agreement that would defeat the provision of any law
c. Agreement those are fraudulent
d. Agreement that involve injury to the person or property of another
2.1.5 Explain related method of discharge of contract:
a. By performance
b. By agreement
c. By impossibility
d. By Breach
2.1.6 Explain the remedy for breach of contract:
a. Damages
b. Injunction
c. Quantum Meruit
d. Specific Performance
2.2 Apply the knowlegde of Law of Contract to the related issues in construction
project.
2.2.1 Relate the issue in construction project to the Principle Law of Contract.
To have a contract, certain essential elements must be present. These will be discuss
in the following chapters. The contract must not of course be affected by
circumstances which render the contracts unenforceable, voidable
( ie, capable of being set aside ), void or illegal
The basic elements constituting a contract are agreement (offer, acceptance of the
offer), intention to create legal relations, considerations, certainty, and capacity.
Offer
Offer or proposal is necessary for the formation of the contract. Section 2(a) of the
Contracts Acts describes that :
The first limb of Section 2(c) of the Contracts Act describes the person who is making
the proposal as ‘Promisor’.
Under the Contracts Act and English Law, a proposal or offer is something which is
capable of being converted into an agreement by the acceptance of the offer. A
proposal must be a definite promise to be bound provided certain specified terms are
accepted. The promisor must have declared his readiness to undertake an obligation
upon certain terms, leaving the option of its acceptance or refusal to the offer.
An offer to some definite class can only be accepted by that person. An offer to the
world at large can be accepted by anyone. This can be illustrated by the famous case
of Carlill v Carbolic Smoke Ball and Co. The facts are as follows :
Carbolic Smoke Ball Co. Ltd. advertised that they would offer $1,000 to anyone who
still succumbed to influenza after using a certain remedy for a fixed period. The plaintiff
duly used it but nevertheless, contracted influenza. The plaintiff then sued for the
money. The Court of Appeal held that the plaintiff was entitled to the $1,000 as she
had accepted the offer made to the world at large.
When an auctioneer invites bids, he is merely making an invitation to treat, and when
bidder makes a bid, he is making an offer. Similarly, a display goods in a shop is an
invitation to treat
Acceptance Of Offer
Agreement comes into existence when an offer is accepted. The acceptance must
be made while the offer is still in force, i.e, before it has lapsed, been revoked or
rejected, acceptance is thus only possible if the offer is still in force. Once the
acceptance is completed, the offer becomes irrevocable.
Section 2 (b) Contracts Act provides that when the person to whom the proposal is
made signifies his assent thereto, the proposal is said to have been accepted. A
proposal, when accepted, becomes a promise. The person who is accepting the
proposal is the ‘promisee’.
Section 9 of the said Act provides that so far as the acceptance of any promise is
made in words, the acceptance is said to be expressed. If the acceptance is made
other than in words, the acceptance is said to be implied.
For a proposal to be converted into a promise, the acceptance of that proposal must
be absolute and unqualified. If the parties are still negotiating, an agreement is not yet
formed ( Lau Brothers @ Co. v. China Pacific Navigation Co.Ltd ). In this case,
negotiations for delivery of logs were conducted through a series of telegrams and
letters. Whilst still in the negotiating stage, the defendants withdrew. Was there a
binding contract between the two parties? The court held that the parties were still in
a state of negotiating and no agreement was formed. Therefore, the defendants were
justified in withdrawing.
A counter offer operates as a rejection of the original offer. Where an offeree makes
a counter –offer , the original offer is deemed to have been rejected and cannot
subsequently be accepted. In the case of Hyde v Wrench, the facts were as follows :
On 6 June Wrench offered to sell to Hyde a farm for $1,000. H made a counter-offer of
$950.On 6 June, W rejected the counter-offer .On 29 June H made a purported
acceptance of the offer of 6 June.
Held : the counter – offer operated as a rejection of the original offer. There was no
contract .
Section 7 (b) of the Contracts Act provides that acceptance must be expressed in
some usual and reasonable manner, unless the proposer prescribes the manner in
which it is to be accepted. However, the proposer cannot prescribe silence as a
manner of acceptance. Though the general rule is that the offeror does nothing he (
the offeree ) will be bound to a contract.
Section 3 of the Contracts Act provides inter alia that the acceptance of proposals is
deemed to be made by any act or omission of the party accepting by which he
intends to communicate the acceptance or which has the effect of communicating
it.
Acceptance by post
Where contracts are made by letter, telegram or cable, they are said to be made by
post. The rule is that an acceptance by post takes effect as soon as it is posted. If the
parties have agreed to an acceptance by posting, it is complete as soon as the letter
of acceptance is posted and properly addressed whether it reaches the offeror or not.
Consideration
When, at the desire of the promisor, the promisee or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to abstain
from doing, something, such act or abstinence or promise is called a consideration for
the promise.
Provisions Of Considerations
It can be implied from Section 2(d) of the Contracts Act that consideration may move
from a person who is not the promisee. It may move from ‘the promisee or any other
person’.
The gift of a horse ,hawk, or robe…in satisfaction is good. For it shall be intended that
a horse, hawk, or robe…..might be more beneficial….than the money…..
The general rule established in Pinnel’s Case, however, does not apply in Malaysia.
Certainty
The terms of an agreement cannot be vague but must be certain. An agreement
which is uncertain or is not capable of being made certain is Void. For example, if Ali
agrees to sell to Mary a hundred crates of toys without specifying what kind they are,
such an agreement is void on the grounds of uncertainty. Similarly if Ali agrees to sell
to Mary his house for RM300,000 or 400,000, such an agreement is also void.
On the hand, if Ali is the dealer in plastic toy soldiers only and he agrees to sell ‘a
hundred crates of toys ‘, the type of toys dealt with by Ali indicates the meaning of
the word ‘Toys’. Similarly, if Ali agrees to sell to Mary his house at a price to be fixed by
his wife, there is no uncertainty as the price is capable of being made certain.
In Karuppan Chetty v. Suah Thian, the requirement of certainty was not met when the
parties agreed upon the granting of a lease at 35.00 per month for as long as he likes.
Capacity
The parties entering into a contract should also be competent to contract, i.e, they
must have the legal capacity to do so. In Malaysia , the age of majority is eighteen
years-Age of majority Act 1971. In Mohori Bibee V. Dharmodas Ghose, the privy
Council had held that an infant cannot make any valid contracts. The general rule in
Malaysia is that contracts made by infants are void. However, there are some
exceptions to this rule. These are the following :
There are a few categories of persons who do not have legal power to enter into any
contract they are minors ,corporations, mentally disordered persons and drunkards.
Minors
Incapacity is imposed by law upon a minor not as a punishment, but to protect him
from the consequences of his inexperience; A minor is a person below the age 21 years
old.
Corporations
A corporation or a company is an illegal person. It is distinct from the individual persons
who are shareholders of the corporation. It has a legal existence separate and distinct
from the shareholders.
According to section 2(g) of the Contracts Act, ”an agreement not enforceable by
law is said to be void. This appears simple but actually it can be seen that this provisions
merges all the common law categories which are mentioned later in the same Act.
Traditionally, a contract which cannot be enforced is classified as void, voidable or un
unenforceable.
When agreement is void, it is null so that no rights of any kind can pass or be created
under it. Instances of void contracts that have already been considered earlier are
those without consideration or those too vague to be enforced. In addition, several
statutes render certain types of contracts void.
A voidable contract is an agreement which is valid unless and until it is set aside by
one of the parties concerned. Hence rights and duties may arise under it and third
parties may also acquire rights under such agreements unless they have been
avoided earlier . Circumstances that will render a contract voidable under the
Contracts Act are coercion, fraud, misrepresentation and undue influence.
Voidable Contract
Section 10 of the Contracts Act,1950 provides inter alia that all agreements are
contracts if they are made by the freely consenting parties. By virtue of Section 14,
consent is said to be free when it is not caused by one or more of the following :
i) Coercion
ii) Undue influence
iii) Fraud
iv) Misrepresentation
v) Mistake
Section 19 (1) provides that when consent to an agreement is caused by coercion, fraud
or misrepresentation, the agreement is voidable at the option of the party whose consent
was so caused.
Coercion
The word ‘coercion, is defined in Section 15 of the Contracts Act as follows;
Undue Influence
The doctrine of Undue influence is a development of equity to cover cases of
particular relations and is sometimes used as a comprehensive phrase to include cases
of coercion, domination or pressure within or without those special relations.
16 (2). In particular and without prejudice to the generality of the foregoing principle,
a person is deemed to be in a position to dominate the will of another :
a) where he holds a real or apparent authority over the other, or where he stands
in fiduciary relation to the other ; or
b) where he makes a contract with a person whose mental capacity is temporarily
or permanently affected by reason of age, illness, or mental or bodily distress.
3 (b) Nothing in this subsection shall affect Section 111 of the Evidence Act 1950.
In Raghunath Prasad v. Sarje Prasad it was held that three matters are to be dealt with
under section 16 (3) :
(i) The relations between the parties to each other must be such that one is in a
position
to dominate the will of the other
(ii) The issue whether the contract has been induced by undue influence ,
(iii) The burden of providing that the contract was not induced by undue influence
lies
upon the person who was in a position to dominate the will of the other.
The effect of undue influence is to render the contract voidable at the option of the
innocent party. He can recover his losses under Section 66 of the Contracts Act which
requires a person who has received any disadvantage under the contract, before it
becomes void, to restore it or to make compensation for it to the party from whom it
was received.
Fraud
Fraud is defined in Section 17 of the Contracts Act to include certain acts which are
committed with intent to induce another party to enter into a contract. Section 17
then lays down five different acts which may constitutes fraud. As a general rule, it
may be stated that whatever a person causes another to act on a false
representation which the maker himself does not believe to be true he is said to have
committed a fraud.
Fraud includes any of the following acts committed by a party to a contract, or with
his connivance, or by his agent, with intent to deceive another party or to induce him
to enter into a contract.
a) Suggestion, as to the fact of that which is not true by one who does not believe
it to be true
b) the active concealment of a fact by one having knowledge of believe of the
fact ;
c) a promise made without any intention of performing it.
d) any other act fitted to deceive and
e) any such act or omission as the law specially declares to be fraudulent.
Explanation –Mere silence as to facts likely to affect the willingness of a person to enter
into a contract is not fraud, unless the circumstances of the case are such that, regard
being had to them, it is the duty of the person keeping silence to speak, or unless his
silence is, in itself, equivalent to speech.
The general rule is that mere silence or non-disclosure may constitute fraud. The
explanation to Section 17 provides that the circumstances may be such that ‘it is the
duty of the person keeping silence to speak.
Misrepresentation
Section 18 of the Contracts Act defines the word ‘misrepresentation’. It reads as follows
:
Misrepresentation includes ;
a) the positive assertion, in a manner not warranted by the information of person
making it, of that which is not true, though he believes it to be true;
b) any breach of duty which, without an intent do deceive, gives an advantage
to the person committing it, or anyone claiming under him. And
c) causing, however innocently a party to an agreement to make a mistake as to
the substance of the thing which is the subject of agreement.
The basic difference between misrepresentation and fraud is that in fraud the person
making the representation does not himself believe in its truth whereas, in case of
misrepresentation, he my believe the representation to be true.
As in the case of fraud, silence in certain situations where there is a duty imposed to
disclose, may amount to a misrepresentation ( Section 18(b)).
Mistake
Section 21 of the Contracts Act which provides for cases where there mistake of facts
reads,
Section 22 provides for the cases where there is mistake as to law. It reads,
A contract is not voidable because it was caused by mistake as to any law in force in
Malaysia has the same effect as a mistake of fact.
Void Contracts
a) it is forbidden by law
any law
c) it is fraudulent
another or
policy.
UNLAWFUL AGREEMENTS
Some agreements are merely void but others can be void as well as unlawful. In the
latter group, the parties concerned are treated more strictly by the law. A court will
refuse to enforce it. The contract act does not appear to have provided specifically
for illegal contracts. They are classified as void contracts.
In Section 10 (1) of the Contracts Act, a contract must be made, inter alia, “ for a
lawful consideration and with a lawful object”. Usually the consideration or object of
an agreement is considered lawful unless :-
(i) It is forbidden by a law
(ii) It is of such a nature that it would defeat any law
(iii) It is fraudulent
(iv) It involves or implies injury to the person or property of another, or
(v) It is regarded by the court as immoral or opposed to public policy
Law refers not only to the common law and equity but includes statutes. The
legislature, whether it be parliament or the state assembly, may enact laws forbidding
certain types of agreements and declaring that they be void. These laws may also
empower a body or person to enact subsidiary legislation forbidding a certain kind of
transaction.
Gaming agreements
An example of a contract forbidden by law is gaming or wagering contracts. Section
26 of the Civil Law Act 1956, sets out in identical terms, provisions of two English Acts,
Section 18 of the Gaming Act, 1845 and Section 1 of the Gaming Act 1982.
Section 31 of the Contracts Acts also provides for gaming or wagering contracts but is
suspended in its operation by the Civil Law Act. According to Section 26 of the latter
act,
(1) “all contracts or agreements, whether by parole or in writing, by way of gaming
or wagering shall be null and void.
(2) No action shall be brought or maintained in any court for recovering any sum of
money or valuable thing alleged to be won upon any wager or which has been
deposited in the hands of any person to abide by the event on which any wager
has been made
At the time of the contract, the event is uncertain. If the event turns out one way, one
party will lose but if it turns out the other, he will win. Neither of the parties has any other
interest in the contract other than the stake he will win or lose. It is to be noted that
unlike English Law, there is no distinction between wagering on games and other types
of gaming. In every case, the question of gaming has to be considered in the light of
the local statutes.
There are many cases on rubber and share market speculation which have been
litigated before the courts. In buying shares listed in stock exchange, a man usually
goes to a broker and directs him to buy and sell so much stock as he requires. In the
eyes of the purchaser, it may be gambling transaction because he has no intention of
taking the stock that he will sell again before settling day arrives. Where the broker
does not intend to deliver and he has entered into a secret understanding that he will
not do so, the contract is a wager. The parties settle the difference between the prices.
Since this type of contract is a wager, money owed by the client to the broker or vice
versa is not recoverable.
The respondents were rubber brokers. They claimed damages from the
appellant for breach of several contracts in writing for purchase and sale of
The plaintiff claimed for specific performance or alternatively for damages for
a breach of contract entered into between him and the defendant. The
defendant had agreed to sell a house built upon a piece of land, in respect
of which, a temporary occupation licence was issued. This promise to transfer
was in contravention of Rule 41 of the Land Rules, 1930 which states that “no
licence for the temporary occupation of state land shall be transferable”.
It was held that the contract was an attempt to sell and purchase the
defendant’s rights under the temporary occupation licence. As such, it was
invalid, as being of such nature, that if permitted, it would defeat the provisions
of the law.
As a general guide, a distinction may be made between a statute which imposes
a penalty for revenue purposes and a statute for the protection of the public. In
general, a penalty imposed merely for revenue purposes does not imply a
prohibition while a statute whose object is the protection of the public implies a
prohibition.
Similarly, the consideration is unlawful if A promises to obtain for B a job in the public
service and B promises to pay him RM 1,000.00 in return. In the relationship between
principal and agent, there is fraud by concealment if A, the agent, agrees, for money,
without the knowledge of his principal, to obtain for B a lease of land belonging to his
principal.
The principle discussed so far relates to sexual immorality. English cases provide no
illustration of other kinds of immorality which invalidate contracts, although some
writers such as Pollock in “Principles of Contract” have suggested that the principle
may be wider. In Malaysia, this is probably true if we look at illustration (j) to section 24,
which gives the example of a solicitor, A, who promises to exercise his influence over
B, his client, in favour of C who promises to pay him RM1,000.00 for the task. The promise
is void because it is immoral.
Contracts are said to be against public policy when they tend to bring about a state
of affairs which is regarded by law as harmful to society. What is considered harmful
depends on the circumstances of the case, although the rules already established are
sometimes moulded to fit the new conditions of a changing world. What has been
traditionally classified as being against public policy in England such as agreements in
When a contract is discharged, the contracting parties are free from further
obligations arising from it. A contract may be discharged by any one of the following
ways :-
(a) By performance
(b) By consent or agreement between parties
(c) By impossibility
(d) By breach
Discharge By Performance
This is the normal method of discharge. As a general rule, contractual obligations are
discharge only by complete and exact performance. When both parties have
performed their obligations, the contract is discharged, ie, the contract is at end. Thus,
in a contract to deliver 100 tons of rubber, this precise amount must be delivered for
the contract to be discharged by performance.
Section 38(1) – parties to a contract are bound by an obligation which they must either
perform, or offer to perform their respective promises, unless the performance is
disposed with or excused under this Act or any other law.
This rule requiring complete performance sometimes leads to unjust result. One result
of this strict rule is that a party who has only partially performed his obligations cannot
recover anything for the work he has done. In other words, partial performance does
not suffice nor does incorrect performance.
Cutter v Powell
Where the intention is that time is the essence of the contract and the promisor fails to
perform it, the contract or so much of it as has not been performed, becomes voidable
at the option of the promisee. But, if the promisee accepts performance after the
agreed time, he cannot later claim compensation for any loss occasioned by the non-
performance of the promise at the time agreed, unless at the time of acceptance, he
gives notice to the promisor of his intention to make a claim for compensation.
Where it is not the intention of the parties that time should be the essence of the
contract, the contract does not become voidable by the failure to do the thing at or
before the specified time, but the promisee is entitled to compensation from the
promisor for any loss incurred by the failure.
(a) X contracts with B to execute certain builder’s work for a fixed price, B supplying
the scaffolding and or timber, and the work cannot be executed. X need not
execute the work, and B is bound to make compensation to X for any loss caused
to him by the non-performance of the contract.
When a contract contains reciprocal promises, and one party to the contract prevents
the other from performing, the contract becomes voidable at the option of the party
so prevented. He is also entitled to compensation from the other party for any loss
which he may sustain as a consequence of the non-performance of the contract.
are insurance contracts and guarantees. Section 32 to 37 of the Contracts Act deal
with the performance of contingent contracts.
Section 33 states that contracts contingent upon the happening of a future, uncertain
event cannot be legally enforced unless and until that event has happened. If the
event becomes impossible, such contracts become void.
If the contract is contingent on an event not happening, it can be enforced, “when
the happening of that event becomes impossible, and not before”.
Section 35 provides that if a contract is contingent upon how a person will act at an
unspecified time, “the event shall be considered to become impossible when such
person does anything which renders it impossible that he should so act within any
definite time, or otherwise than under further contingencies”.
Section 36(1), contracts contingent on the happening of an event within a fixed time
become void if, at the time of expiration of the time fixed, the event does not happen,
or if, before the time fixed, such an event becomes impossible.
Section 36(2) deals with the contracts contingent upon the non-happening of an event
within a fixed time. It may be enforced by law when the time fixed has expired. It
becomes certain that such an event will not occur.
Section 37 deals with contingent agreement to do or not do anything, if an impossible
event happens. The contract is void whether the impossibility of the event is known or
unknown to the parties to the agreement at the time when it was made.
In relation to condition (c), it is important to note that the promisee must be given a
reasonable opportunity of ascertaining that the promisor is able and willing there and
then to do the whole of what he has promises to do. The scope of this condition was
discussed by the Federation of Malaya court of appeal in Ally & Co. V. Chellamah
(1948) 14 M.L.J. 202. In this case, the landlord sued for possession of a building on the
grounds that rent had not been paid. The defence was that the rent had been
tendered.
The law applied in Malaysia with regards to joint liability is different from English law.
Under the latter, the liability is joint, so that all joint promisors must be sued jointly. In
Malaysia as in India, the liability is joint and several. This means that the promisee may
sue any one or all of the promisors. A promisor cannot claim the right of being sued
only along with his co-promisors.
Under Section 46, when a person has made a promise to several persons jointly, the
right to claim performance rest on all the promisees jointly so long as all of them are
alive. If one of the promisees dies, the right to claim performance rests with his legal
representative jointly with the other surviving promisee. If all the promisees die, the right
to claim performance rests with their legal representatives jointly. This rule may be
varied if a contrary intention appears in the contract.
Section 63 deals with the effects of novation, rescission and alteration in the following
terms :-
If the parties to a contract agree to substitute a new contract for it, or to
rescind it or to alter it, the original contract need not be performed.
(a) Novation
When parties to a contract agree to substitute a new contract from the original
contract, it is called novation. The consideration for the new agreement is the mutual
discharge of the old contract. Consent of all parties is necessary for novation.
(b) Alteration
Alteration occurs when one or more of the terms of the contract are changed. This
alteration is valid when it is made with the consent of all parties to the contract.
(c) Rescission
A contract may be rescinded by mutual agreement between the parties at any time
before it is discharged by performance. In a contract for the Sale of Goods, the buyer
and seller may rescind the agreement at any time before delivery of the goods or
payment of the price.
This is different from the right of a party to rescind a contract when the other party has
failed to perform his obligation. In this case, he has the right to receive compensation
for breach of contract. For instance, X promises to deliver certain goods to B on a
particular day and fails to do so. B may rescind the contract for breach without
prejudice to his right to compensation.
(d) Remission
A promisee may dispense with or remit either completely or partly the performance of
the promise made to him. He may also extend the time of performance or accept
instead, any other satisfaction in lieu of performance. This principle is applied in the
following circumstances :-
satisfaction of the whole debt at the time and place at which the RM5,000.00 were
payable, the whole debt is discharged.
b) Payment of a lower sum by a third party which is accepted by the promise is also
a good discharge of the original debt. Thus, if A owes B RM 5,000.00 and C, a third
party, pays to B RM1,000.00 in satisfaction of his claim against A and B accepts it,
the payment is a discharge of the whole claim.
A music hall was hired out by the defendant to the plaintiff for a series of concerts.
By NUR QIAMwas
The hall FARHANA ADNAN burnt down before the date of the first concert.
accidentally Page 23
The
plaintiff claimed damages in respect of money spent on advertisement but he
failed as the contract was frustrated by the destruction of the hall.
DCQ2162 PRINCIPLE OF LAW
Henry hired a room which overlooked the route of the coronation procession of
King Edward VII for the purpose of watching the procession. Owing to the King’s
illness, the procession was cancelled. It was held that Henry was excused from
paying rent for the room as the contract was frustrated. The existence of the
procession was the basis of the contract. Cancellation amounted to cessation of
a state of things going to the root of the contract and essential to its performance.
Consequences of Frustration
The effect of frustration is to terminate the contract automatically. Since the contract
is void, Section 66 of the Contracts Act applies. Any person who has received an
advantage under it must restore it, or make compensation for it to the person from
whom he received it.
Kung Swee Heng & Another V. Paritam Kaur (1948) 14 M.L.J. 170
On December
By NUR 5th, 1941
QIAM FARHANA the plaintiff paid $500.00 to the defendant as deposit
ADNAN for 24
Page
the purchase of a building. The war came and the transaction between the
parties could not be completed. Since the contract was frustrated, the plaintiff
DCQ2162 PRINCIPLE OF LAW
Section 15 (2) of the Civil Law Act provides that the money due but not paid before
frustration ceases to be payable. But if the money has actually been paid, it must
be restored. Thus, this section gives the court discretion to order payment not
exceeding the amount of expenses so incurred if “it considers it just to do so having
regard to all the circumstances of the case”.
Section 15(3) of the Civil Law Act provides that if one party has obtained a valuable
benefit before the time of discharge, as a consequence of anything done by the
other party for the purpose of the performance of the contract, the latter party
may recover from the former such a sum as the court considers just. But the amount
must not exceed the value of the benefit enjoyed.
Section 16 (4) of the Civil Law Act applies to severable contracts. Since the
contract is severable, the court will treat them as separate contracts.
For example :-
Suppose A agrees to decorate B’s house on the terms that RM500.00 to be paid
when the kitchen is renovated, a further RM400.00 when the sitting room painted
and a final RM600.00 when the curtains have been installed. After the kitchen has
been renovated and sitting room painted, the house is accidentally destroyed
by fire. Since the contract is severable, the court will treat them as separate
contracts. This means that A is entitled to payment for the first two items (kitchen
renovation and room painting) as they have not been frustrated. The principle
of frustration will apply to the third item (curtain installation).
If time is the essence of the contract, a breach occurs when a party fails to perform
within stipulated time. The contract becomes voidable at the option of the promise.
But, if the promisee accepts performance after it is due, he may not claim any
compensation for any loss suffered by the non-performance at the time agreed, unless
at the time of acceptance, he gives notice of his intention to claim compensation.
If time is not the essence of the contract, the contract does not become voidable by
the failure to perform within the specified time, but the promisee is entitled to
compensation from the promisor for any loss suffered as a result of his failure to perform.
For example :-
A engages B to build a house for him. The work started in May. But in February, B
informs A that he will not build for him as agreed. A may sue B immediately for
breach of contract.
This section is also applicable to failure to perform at the time when it is due. The point
to note is that the innocent party has an option. He may accept repudiation and sue
for breach of contract, whether or not the time of performance is due, or he may
disregard it. When the promisee does not accept the repudiation as putting an end
to the contract, he may await the time when the contract is due for performance,
that is to say, he ignores the notice of repudiation.
In this case, he keeps the contract alive for the benefit of the other party as well as his
own. He remains subject to all his own obligations and liabilities under the contract,
notwithstanding his previous repudiation. The repudiating party may also avail himself
of any excuse for non-performance, such as frustration, which may have come into
existence before the time fixed for performance.
When there is a breach of contract, the injured party is entitled to one or more of the
following reliefs:
a) Rescission of contract
b) Damages
c) Specific performance
d) Injunction
e) Quantum Meruit
Damages
The law relating to damages arising from breach of contract is found in Sections 74 to
76 of the Contracts Act. A person who rightly rescinds a contract is entitled to
compensation for any damage which he has sustained through the non-fulfillment of
the contract. The measure of damage recoverable is set out in Section 74 which
substantially affirms the common law rule laid down in the English case Hadley v.
Baxendale. The principle enunciated in this section is that an injured party is entitled
to:
i. Damages arising naturally, that is, according to the usual course of things
resulting from the breach ; and
ii. If he claims special damages for any loss sustained, he must show that they are
such that the other party knew at the time of making the contract that the
special loss was likely to result from the breach ; but
iii. Such compensation is not to be given for any remote and indirect loss or
damage sustained as a result of the breach.
The case of Tham Cheow Toh v. Associated Metal Smelters Ltd. Is a good illustration of
the principle (ii) where special damages were awarded. The defendant appellant
had agreed to sell a metal melting furnace to the plaintiff (respondent) and had given
an undertaking that the melting furnace would have a temperature of not lower than
2,600 degrees Farenheit. This specification was not fulfilled. The respondent brought an
action alleging breach of condition of the contract and claimed damages, including
loss of profits. In its decision the Federal Court stated, inter alia, that the appellant
would not normally be liable for payment of damages for loss of profits unless there
was evidence that the special object of the furnace had been drawn to their attention
and they had contracted on the basis that delay in delivery would make them liable
to payment for loss of profits. In this particular instance, it was held that the appellant
knew about the requirement to deliver a furnace capable of producing a
temperature of 2,600 degree F and the urgency of the matter. Therefore they were
liable to pay for certain loss of profits sustained by the respondent.
Sometimes the parties may fix the damages that would be payable in case of breach
at the time of contracting. In English Law, the courts will have to consider whether it is
liquidated damages or a penalty. They will give effect to liquidated damages but
disregard a penalty. It is considered liquidated damages if the amount fixed is a
genuine pre-estimate of the probable loss in case of breach. If the amount fixed is
merely a threat on one of the parties to perform his part of the contract without any
regard to probable loss, it is a penalty. The differences between liquidated damages
and a penalty are not provided for in the Contracts Act. Section 75 merely provided
payment of ‘reasonable compensation not exceeding the amount so named or, as
the case may be, the penalty stipulated for”. The effect of fixing a sum is simply to
determine the upper limit of compensation.
Specific Performance
Specific performance is a decree of the court directing that the contract shall be
performed specifically, that is, according to the term of the contract. This remedy is
provided for by the Specific Relief Act, 1959 (Revised 1974). It is given at the discretion
of the court in any of the following circumstances:
a) When the act agreed to be done is in the performance, wholly or partly, of a trust.
For example, A holds certain stock in trust for B. A wrongfully disposes of the stock.
The law creates an obligation on A to restore the stock. The law creates an
obligation on A to restore the same quantity of stock to B, an B may enforce
specific performance of this obligation.
b) When there exists no standard for ascertaining the actual damages caused by the
non-performance of the act agreed to be done.
For example, A agrees to buy and B agrees to sell a picture by a painter who has
since died, and two rare China vases. A may compel B specifically to perform this
contract since there is no standard for ascertaining the actual damage which
would be caused by its non-performance.
c) When the act agreed to be done is such that pecuniary compensation for its
performance would not afford adequate relief.
ii. A contracts to sell and B contracts to buy a certain number of railway shares of
a particular description. A refuses to complete the sale. B may compel A
specifically to perform this agreement. This is because the shares are limited in
number and not always to be had in the market and their possession carries
with it the status of a shareholder, which cannot otherwise be procured.
d) When it is probable that pecuniary compensation cannot be obtained for the non-
performance of the act agreed to be done.
For example, A transfers without endorsement but for valuable consideration a
promissory note to B. A becomes insolvent. C is appointed his assignee. B may
compel C to endorse the note for C has succeeded to A’s liabilities. In this case, a
decree for pecuniary compensation for not endorsing the note would be useless
as A is already insolvent.
In contracts for transfer of immovable property such as land, there is a rebut table
presumption that compensation in the form of money is inadequate. Hence in
immovable property, specific performance is usually an appropriate remedy.
However, the following contract cannot be specifically enforced:
a) Where the circumstances under which the contract is made are such as to give
the plaintiff an unfair advantage over the defendant, though there may be no
fraud or misrepresentation on the plaintiff’s part.
For example, A contracts to sell and B contracts to buy certain land. To protect
the land from floods, it is necessary for its owner to maintain an expensive
embankment. B does not know of this problem and A conceals it from him. Specific
performance of the contract should be refused to A.
b) Where specific performance would cause some unforeseen hardship on the
defendant whereas its non-performance would involve no such hardship on the
plaintiff.
For example, A contracts with B to sell him certain land, and to make a road to it
from a certain railway station. It is found afterwards that A cannot make a road
without exposing himself to court action. Specific performance of the part the
contract relating to the road would be refused to B. However, he may be entitled
to specific performance to the rest of the contract such as sale of the land and
compensation for loss of the road.
Although the decree of specific performance is granted at the discretion of the court,
“the discretion of the court is not arbitrary but sound and reasonable, guided by
judicial principles and capable of correction by a court of appeal”.
Injunction
Where a contract contents a negative promise, the breach of that promise maybe
restrained by injunction which is a preventive relief. As in the case of specific
performance injunction is granted at the discretion of the court. Two examples maybe
taken from Section 42 of the Specific Relief Act, 1950 to illustrate the principle of
granting injunction.
Illustration (a)
A lets certain land to B and B contracts not to dig sand or gravel thereon. A may sue
for an injunction to restrain B from digging in violation of his contract.
Illustration (k)
A lets certain arable land to B for purposes of husbandry, but without any express
contract as to the mode of cultivation. Contrary to the mode of cultivation in the
district, B threatens to sow the land with seeds injurious thereto and requiring many
years to eradicate. A may sue for an injunction to restrain B from sowing the land in
contravention, of his implied contract, to use them in a husbandlike manner.
Quantum Meruit
Actions on a quantum meruit may be either contractual or quasicontractual. It is
contractual if there is an existing contract and an action on a quantum meruit is used
to settle the details. Thus, if a contract for the sale of goods does not fix the price, the
seller is entitled to a reasonable price. It is quasicontractual in the following
circumstances: first, where a contract has been discharged by the conduct of the
defendant such as preventing the plaintiff completing an entire contract, the plaintiff
may claim a reasonable sum for any work he has actually done under the contract:
secondly where the plaintiff has done work or rendered services under a void
agreement (although at the time the parties may have believed it to be valid), the
plaintiff may claim a reasonable remuneration.
For example, in Craven-Ellis Vs. Canons Ltd., a managing director was appointed
under an agreement which was in fact void. He rendered services to the company. It
was held that although he could not recover any money from the contract, he could
recover a reasonable remuneration on a claim for a quantum meruit.
SOURCES OF LAW
DEFINITION OF CONTRACT
• Preston Corporation v. Edward Leong & Ors
OFFER
• Guthing v. Lynn
• Bushwall Properties Ltd. v. Vortex Properties
• Montreal Gas Co. v. Vasey
• Jaques v. Lloyds D. George & Partners
• Taylor v. Laird
• Gibbon v. Proctor
• Fitch v. Sneadaker
• Williams v. Carwardien
• Harvey v. Facey
• Tinn v. Hoffman
• Boulton v. Jones
• King’s Norton Metal v Eldridge, Merrett & Co
• Carlil v. Carbolic Smoke Ball Co
• Partridge v. Crittenden
• Coelho v. The Public Services Commission
• Preston Corpn. v. Edward Leong & Ors
• Harvela Investments v Royal Trust Co. of Canada
• Spencer v. Harding
• Timothy v. Simpson
• Fisher v. Bell
• Pharmaceutical Society of GB v Boots Cash Chemist
• Grainger & Sons v. Gough
ACCEPTANCE
• Brogden v. Metropolitan Railway
• Jones v. Daniel
• Hyde v. Wrench
• Western Electric v. Welsh Development Agency
• Stevenson Jaques & Co. v. McLean
• Butler Machine Tool Co. Ltd. v. Ex-cell-o Corporation
• Carlil v. Carbolic Smoke Ball Co
• Brogden v. Metropolitan Railway Co.
• Powell v. Lee
• Fraser v. Everett
• Macon Works & Trading v. Phang Hon Chin
• Elliason v. Henshaw
• Felthouse v. Bindley
• Weatherby v. Banham
• Lee Hooi Lian v. Kuay Guan Kai
COMMUNICATION
• Gibbon v Proctor
• Fitch v Snedaker
• Tinn v Hoffman
• Powell v Lee
• Felthouse v Bindley
• Fraser v. Everett
• Ramsgate Victoria Hotel v. Montefiore
• Brogden v. Metropolitan Railway
• Carlil v. Carbolic Smoke Ball
• Adam v Lindsell
• Offord v Davies
• Payne v Cave
• Routledge v Grant
• Carlil v. Carbolic Smoke Ball
• Errington v Errrington
• Hyde v Wrench
• Western Electric v. Welsh Development Agency
• Dickson v Dodds
• Great Northern Railway v. Witham
• Coulthard v. Clementson
• Bradbury v. Morgan
• Byrne v. Tienhoven
• Dickinson v. Dodds
ESSENTIALS OF CONTRACT
Competency
• Mohori Bibee v. Dhurmodas Ghose
• Tan Hee Juan v. Teh Boon Keat
• Leha Bt. Jusoh v. Awang Johari bin Hashim
• Ryder v. Wombwell
• Nash v. Inman
• Govt/M’sia v Gurcharan Singh
• Arunasalam Chetty v. Aziz Khan
Consideration
• Bainbridge v. Firmstone
• Bolton v Madden
• Phang Swee Kim v Beh I Hock
• Pinnel’s case
• Foakes v Beer
• Koh v Koh
• Chappel & Co. v Nestle Co. Ltd
• Esso Petroleum v Customs & Exercise Commissioners
• Venkata Chinnaya v Verikatara Ma’ya
• Osman Abdul Ghani & Ors v UAB
• Kepong Prospecting Ltd. v Schmidt
• Currie v. Misa
• K. Murugesu v Nadarajah
• Carlil v Carbolic Smoke Ball
• Kepong Prospecting Ltd. v Schmidt
• Pao On v Lau Yin Long
• Re Toh Sim Chan Law Keong & Ors
• J.M. Wootherspoon & Co. v Henry Agency House
Intention
• Balfour v. Balfour
• Carlil v. Carbolic Smoke Ball
• Appleson v. Littlewood
• Balfour v. Balfour
• Merrit v. Merrit
• Parker v. Clark
• Simpkins v. Pay
Consensus ad idem
• Raffles v Wichelhaus
VOIDABLE CONTRACT
Coercion
• Barton v. Armstrong
• Mutual Finance Company v. John Wetton
• Kaufman v. Gerson
• Maskell v Horner
• Kesarmal s/o Letchumanan Das v. Valiappa Chettiar
• Chin Nam Bee Development v. Tai Kim Choo & Ors
• The Atlantic Baron
• The Atlantic Baron
• Universe Tankships of Monrovia v. International
• Pao On v. Lau Yiu Long
Fraud
• Darry v. Peek
• Lau Hee Teah v. Hargill Engineering
• Weber v. Brown
• Kheng Chwee Lian v. Wong Tak Thong
• Letchemy Arumugam v. Annamalay
• Datuk Jaginder Singh & Ors. v. Tara Rajaratnam
Misrepresentation
• Curtis v. Chemical Cleaning and Dyeing
• Hedley Byrne v. Heller & partners
• London general Omnibus v. Holloway
• Goh Chooi Leong v. Public Life Assurance
Undue Influence
• Allcard v. Skinner
• Saw Gaik Beow v. Cheong Yew Weng & Ors
• Public Finance Bhd v Lee Bee Rubber Factory
• Phillips v Hutchinson
• Bank of New South Wales v Rogers
• Taylor v Johnson
• Radcliffe v Price
• Westmelton (Vic) Pty Ltd v Archer
• Datuk Jaginder Singh & Ors. v. Tara Rajaratnam
• Allcard v Skinner
• Saw Gaik Beow v. Cheong Yew Weng & Ors.
• Yerkey v Jones
• Wheeler v Sargeant
• Chait Singh v. Budin Bin Abdullah
• Salwath Haneem v. Hadjee Abdullah
• Poosathurai v. Kannapaa Chettiar & Ors
• Malaysian French Bank V Abdullah Bin Mohd Yusof & Ors
• Southern Bank Bhd V Abdul Raof Bin Rakinan & Anor
• Caltex Oil Malaysia v PPMS Technologies & Ors
VOID CONTRACT
Competency
• Mohori Bibee v. Dhurmodas Ghose
• Tan Hee Juan v. Teh Boon K
• Leha Bt. Jusoh v. Awang Johari bin Hashim
• Ryder v. Wombwell
• Nash v. Inman
• Government of Malaysia v. Gurcharan Singh & Ors
• Arunasalam Chetty v. Aziz Khan
Mistake
• Raffles v. Wichelhaus
• Chop Ngoh Seng v. Esmail & Ahmad Bros
• Sheikh Bros. Ltd. v. Oschner
• Robin & Anor v. Goh Boon Choo
• Seck v. Wong & Lee
DISCHARGE OF CONTRACT
• Re Moore and Landauer
Performance
• Re Moore & Co. and Landauer & Co
• Arcos Ltd. v. E.A. Romaasen & Son
• Yeoh Kim Pong (Realty) Ltd. v. Ng Kim Pong
• Sim Chio Huat v. Wong Ted Fui
• Kuala Lumpur Finance Bhd v Yap Poh Khian
• Lee Chee Ming & Anor v Superview Development
• Kang Yoon Mook Xavier v Insun Development
• Re Moore and Landauer
• Cutter v Powell
• Arcos v Ronaasen
• Tolhurst v. Associated Portland Cement Manufacturers
• Bunge Corp v Tradax Export SA
• Hoenig v Isaacs
• Appleby v Myers
Agreement
• Pan Ah Ba & Anor v. Nanyang Construction
• Pinnel’s case
• Hirachand Punamchand v. Temple
• Kerpa Singh v. Bariam Singh
Frustration
• Davis Contractors v. Fareham UDC
• National Carriers v. Panalpina (Northern Ltd)
• Khoo Than Sui v. Chan Chiau Hee
• Ramli Zakaria v. Government of Malaysia
• Taylor v. Caldwell
• Berney v. Tronoh Mines
• V. Kandiah v. Fed. of Malaya
• Krell v. Henry
• DATO YAP PENG & ORS V PUBLIC BANK BHD & ORS
• Eastacres Development v. Fatimah
• Murugesan v. Krishnasamy
• Hargreaves Transport v. Lynch
Breach
• Chim Kim & Anor v. Loh Boon Siew
• Choo Yin Loo v. Visuvalingam
• Ban Hong Joo Mine v. Chen & Yap
• Tan Hock Chan v. Kho Teck Seng
• Smith Construction v. Phit Kirivatna
• Sim Chio Huat v. Wong Ted Fui
• J.M. Hill & Sons v. London Borough of Camden
• Saphiaton v. Lim Siew Hui