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    Ningkan Hamilton
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    The document discusses the duty of disclosure under Malaysian law. Generally, there is no duty for a seller to disclose all facts to a buyer. However, there are exceptions where non-disclosure could amount to fraud, such as when there is active concealment of a material fact, a fiduciary relationship exists between the parties, or silence is equivalent to speech. The case involved significant delay by SYAMM in informing AMF of major problems and misrepresentation of being in control, when AMF could have taken measures had it been informed earlier. Clause 38 of the agreement required honesty and disclosure, so SYAMM had a duty to speak regarding the issues.

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    The document discusses the duty of disclosure under Malaysian law. Generally, there is no duty for a seller to disclose all facts to a buyer. However, there are exceptions where non-disclosure could amount to fraud, such as when there is active concealment of a material fact, a fiduciary relationship exists between the parties, or silence is equivalent to speech. The case involved significant delay by SYAMM in informing AMF of major problems and misrepresentation of being in control, when AMF could have taken measures had it been informed earlier. Clause 38 of the agreement required honesty and disclosure, so SYAMM had a duty to speak regarding the issues.

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    © All Rights Reserved
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    15 views2 pages

    Issue 5

    Uploaded by

    Ningkan Hamilton
    The document discusses the duty of disclosure under Malaysian law. Generally, there is no duty for a seller to disclose all facts to a buyer. However, there are exceptions where non-disclosure could amount to fraud, such as when there is active concealment of a material fact, a fiduciary relationship exists between the parties, or silence is equivalent to speech. The case involved significant delay by SYAMM in informing AMF of major problems and misrepresentation of being in control, when AMF could have taken measures had it been informed earlier. Clause 38 of the agreement required honesty and disclosure, so SYAMM had a duty to speak regarding the issues.

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
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    of 2

    Issue 5: Duty of disclosure

    Clause 38 in the agreement - Good faith, transparency and disclosure is the foundation upon
    which this contract is built on. We expect your unreserved cooperation and honesty in helping us
    bring this event to fruition.

    General Rule: No general duty of disclosure in Malaysian law

    1- (hire purchase)
    Facts:
    Seller was under no duty to inform the hirer of the year of manufacture of the machine and the
    fact that it had previously been involved in an accident

    Ratio
    No duty to inform as the nondisclosure was intended to deceive the appellant or induce him to
    enter into the hire-purchase transaction within the meaning of s.17

    2- Karupannan case

    Ratio
    An uncommunicative or tacitum vendor cannot be faulted if he failed to disclose any patent
    defect ;even if the seller expresses it to be “free from all encumbrances”.

    Exceptions

    1- Where the silence distorts a positive representation

    2- There exists a duty to speak

    3- Where the silence itself amounts to speech


    4- Section 17(e)- include circumstances in which the law requires the disclosure of certain kinds
    of fact.

    1- Section 17(b)- In cases of ‘active concealment of a fact’

    - Fraud by concealment of material facts made by a person who has knowledge of it (Tay Tho
    Bok & Anor v Segar Oil Palm Estate Sdn Bhd)

    - Section 17(d)- ‘Any act fitted to deceive’- fraudulent by conduct, partial non-disclosure,
    suppression of material fact, and continuing representations; also since it is said to have been
    “inserted merely for the sake of abundant caution.

    2- Duty to speak arises in fiduciary relationships and in contracts of uberrimae fidei, which
    encompasses all contracts of insurance.

    3- Illustration (c) to s.17- silence equivalent to speech

    There was a significant delay in SYAMM telling AMF about the major problem. Thus, the
    information relayed to ACM was delayed.

    SYAMM also misrepresented AMF of the problems with maintaining a seamless experience at
    the tournament bubble by saying that everything was under control.

    If SYAMM told AMF earlier, AMF could have implemented measures deal with the problem.

    Here, there is exist duty to speak as per Clause 38

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