● Malik is a well-known business man and has a hypermarket in Kajang.

On 21 January
2023, he made an advertisement in one of the local newspaper in which states that “Face
mask and hand sanitizer will be given for free for the first 100 customers, who goes to the
hypermarket on 25 January 2023 by 5pm.” Kong went to the hypermarket on 25 January
at 4.45 pm to claim the products but he has failed. The management told him that there is
no more face mask and hand sanitizer left. Kong intend to sue Malik and his company for
breach of contract. Advise Kong.

Issue

- The issue is the plaintiff, Kong failed to claim the products, which are the face mask and
sanitizer when he went to the hypermarket by 4.45 pm, prior the time promised by the
defendant, Malik to the consumer. The original offer made by Malik is to give out free
masks and sanitizer to the first 100 customers who went to the hypermarket in Kajang on
25 January 2023 by 5 pm. The plaintiff, Kong, is unsatisfied and wants to sue the
defendant, Malik for damages.

Rule

- Contract Acts 1950 which stipulates the way to sign contracts in Malaysia and how such
contracts are legally binding. Contract is an agreement that legally binds two or more
parties. All contracts are in the form of agreements, but not all agreements are contracts.
The law also stipulates a few elements that limit the way of signing and executing
contracts which are offer, acceptance and consideration. Contract will be invalid under
the circumstances when one of the three elements of a valid contract, which are offer,
acceptance and consideration is missing. Offer is formed when one party makes an offer
 to another party. For example: "Buy 1 free 1 promotion" is an offer element. Acceptance
is established when the offeree agrees to the offeror's offer. The acceptance must be clear
and obvious. The action of confirming on the promotion during purchase is an example
of clear acceptance. The existence of consideration is usually defined whether both sides
are benefited when the offeror executes the promise to the offeree. Consideration exists
when both sides are getting something of value. For example, consideration exists when a
company enjoys profit increase during buy 1 free 1 promotion as consumers tend to make
more purchases.

Analysis

- According to the Contract Acts 1950, the three elements of a contract include offer,
acceptance and consideration. In this case, the advertisement in one of the local
newspapers in which states that “Face mask and hand sanitizer will be given for free for
the first 100 customers, who visit the hypermarket on 25 January 2023 by 5pm.” which
Malik had made can be seen as a legally binding clear offer.
In 2015 class-action lawsuit against Subway, the sandwich restaurant chain. In that case,
plaintiffs alleged that Subway's "footlong" sandwiches were not actually a foot long (12
inches) as advertised, and that the company had engaged in false advertising and breach
of contract. The lawsuit was settled in 2016, with Subway agreeing to a settlement of
$525,000, which was to be divided among the plaintiffs and their attorneys. The
settlement also required Subway to implement measures to ensure that its bread was
consistently 12 inches long. This case serves as an example of how companies can face
legal action for false advertising and breach of contract when they make promises or
representations to customers that they do not fulfill. In this case, Subway was found to
have fallen short of its obligation to provide customers with sandwiches that were the
advertised length, and as a result, the company was required to pay damages to the
affected customers.
- Acceptance can clearly be seen when Kong visited the hypermarket at 4:45pm, 15
minutes prior to 5pm, attempting to claim the free gifts. As for consideration, Kong can
argue that his presence and intent to purchase at the hypermarket constituted
consideration for the offer of free face masks and hand sanitizers. In contract law,
 consideration means something of value is given or promised in exchange for another
thing for value. In this case, Kong’s presence and intent to purchase can be seen as
something of value in exchange for the free masks and sanitizers. Furthermore, Malik’s
offer of free items can also be seen as an intent to attract more customers to his
hypermarket and increase sales, which can be seen as consideration for the offer. In order
to support Kong’s claim, he would need to provide evidence of consideration of the offer,
such as receipt of purchase on that day.

However, Malik has included terms that limits his liability for not being able to provide
the face masks and hand sanitizers. Malik has included the terms that the free items were
only available for the first 100 customers who arrived at the hypermarket before 5pm.
Therefore, Malik would not be liable for breach of contract if Kong was not one of the
first 100 customers to arrive at the hypermarket. Furthermore, the advertisement in the
newspaper can also be seen as merely an invitation to treat rather than a legally binding
offer. An invitation to treat is simply an invitation for a party to enter into a contract. A
legally binding offer on the other hand requires clear terms indicating an intention to be
bound. In this case, Malik did not have any clear intentions to be legally bound by the
offer. Hence, it may not be considered a legally binding contract. Malik can also provide
proof that Kong was not one of the first hundred customers to arrive at the hypermarket
before 5pm.

Conclusion

- Although having clear offer and acceptance of offer in this case, it is not advisable for
Kong to pursue his claim on this case. Kong’s presence and his intention to make
purchases are solid considerations to the offer as it increases traffic and potential for
sales. However, Kong needed to provide evidence of purchase on that day as he might
not purchase due to not receiving free gifts. It is also unlikely that Malik’s hypermarket
does not provide some form of receipts for both parties when distributing free gifts.
 Therefore, Kong is likely not one of the first hundred customers to arrive at the
hypermarket. As a conclusion, Kong would be advised not to pursue Malik on this case.

(956 words)

References:

● Contract Law Malaysia. (n.d.). MESSRS KS Chew Lawyers & Associates - Kuala

Lumpur Malaysia. https://www.kschewlaw.com.my/our-services/contract-

law/

● Zizan wins appeal against breach of contract lawsuit. (2018, March 5). Malay

Mail. https://www.malaymail.com/news/malaysia/2018/03/05/zizan-wins-

appeal-against-breach-of-contract-lawsuit/1591093

● Fawziah Holdings Sdn Bhd v Metramac Corporation Sdn Bhd 2005 [CA] - The

Malaysian Bar. (n.d.). Www.malaysianbar.org.my.

https://www.malaysianbar.org.my/article/news/court-judgments/judgments/

fawziah-holdings-sdn-bhd-v-metramac-corporation-sdn-bhd-2005-ca

● Brettman, A. (2014, December 10). Nike files breach of contract lawsuit

against former designers. Oregonlive.

https://www.oregonlive.com/playbooks-profits/2014/12/nike_files_breach_of

_contract.html

MPU33163 ART LAW AND CYBER LAW: RUBRIC FOR ASSIGNMENT 2

 CRITERIA ABOVE EXPECTED AT EXPECTED BELOW EXPECTED MARKS
LEVEL LEVEL LEVEL (%)
5-4 3-2 1-0

DEVELOPME A very good Good understanding of Some understanding of

NT OF TOPIC understanding of the topic shown. Links and topic shown. Some links
topic shown. Links and connections between and connections made
connections between ideas made clear. between ideas. Points are
ideas made clear. Information was usually developed with
Information was relevant and expressed minimum detail.
relevant and well in own words. Points Information is usually
expressed in own words. were developed with relevant.
Points were well- sufficient and
organised and developed appropriate details.
with sufficient and
appropriate details.

RESEARCH & Student presents Student has difficulty Student cannot understand
ORGANIZATI information in logical, to presents information the topic because there is
ON interesting sequence in logical, interesting no sequence of
which examiner can sequence and student information.
follow. jumps around.

APPLICATIO Assertions supported Assertions are Assertions based on

N OF LAWS & with evidence (as supported with personal opinion only.
EVIDENCE described in meets appropriate evidence. Assertions are based on
expectations). Appropriate evidence empty citations: citation
Assertions are supported includes an information is given as
with multiple sources of interpretation of support for an assertion
evidence based on empirical data, but no information is
primary sources. When description of provided about the
relevant, opposing arguments and content of the cited work
positions are considered evidence presented in a or how or why the cited
and arguments scholarly source that work/author supports the
discounting these supports the assertion assertion made. Factual
positions are supported (with appropriate errors: the cited work
with relevant scholarly citation of the source). does not actually support
evidence. Synthesizes Evidence provided in the assertion made in the
 evidence to draw new, support of an argument assignment and/or is
relevant, logical is described and described inaccurately.
inferences. interpreted correctly.

DISCUSSION An excellent discussion Moderate discussion Poor discussion with the

with related facts. with related facts. related facts.

CASE Shows a thorough Shows considerable Shows limited

DETAILS understanding of details understanding of understanding of details
related to the case details related to the related to the case
case

OVERALL Very interesting. Well Pleasant but poor Not very pleasant. Need
IMPRESSION done presentation improvement.

TOTAL /30