“Ticket Cases”

• Please Consider
– Parker v South-Eastern Railway Co
(1877) 2 CPD 416
– “See back”
– Conditions on reverse of ticket.
• Mellish LJ observed:
• 1. “…if the person receiving the ticket did not
see or know that there was any writing on the
ticket, he is not bound by the conditions;
• 2. that if he knew there was writing and knew or
believed that the writing contained conditions
then he is bound by the conditions ;
• 3. that if he knew there was writing on the ticket
but did not know or believe that the writing
contained conditions, nevertheless he would be
bound if the delivering of the ticket to him in
such a manner that he could see there was
Is this effective notice????
writing upon it…”
– Sugar v London, Midland and Scottish
Railway Co. [1941] 1 All ER 172,
• Anything that covers the notice, such
as a date stamp, or any matter that
hides the notice or obscures it, will 15
prevent reasonable notice occurring.

need to be
notice
3. Time of Notice - out before the
giventime of
contracting
• An EC will only be incorporated into a contract if notice of the EC was
given before or at the time of contracting.

• Olley v Marlborough Court Ltd (1949) 1 KB 532

P & husband were guests in D’s hotel. Upon arrival, they concluded a
contract for a one week stay. They paid for a week in advance & went to
their room. In their room, was a notice that stated ‘the proprietors will not
hold themselves responsible for articles lost or stolen unless handed to the
manageress for safe custody…’ Various valuables were stolen from the P’s
room.
• HELD: A notice such as that found in the P’s room which could not have
been seen until after the contract had been concluded could not form part of
the agreement. Thus the EC was ineffective.

16
 Previous Course of Dealings
• Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71

• "company is not responsible for damage caused by fire to customers’

cars on the premises."

• HELD: The 3 or 4 transactions that occurred over the past 5 years

were not sufficient to establish a course of dealing such that
provisions of the D’s standard form could be implied into the oral
contract between the parties. ① of contract
both sign
a
the
works - parties
the EC before
Low can a EC
② & knew the
happening
~plantiff knew the EC verbally
Li
or

defendant had put on a

sign
③ 17

he knew
parties clarse perfect in the
by about an
exemption
Step 2 - Does the clause cover the pastor contract
damage?
& precise
● Natural and Ordinary Meaning
~clear
● Strict Interpretation i.e. Contra proferentum
rule
● Fundamental Breach
-mini the daft man

● “Four corners Rule”

18
 Step 3 – Is the exemption clause unfair?

• The Malaysian law prior to the Amendment Act 2010:

➢ https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2802383##

• The Malaysian law after the Amendment Act 2010:

➢ http://journals.sagepub.com/doi/abs/10.1177/147377951
5600142

⑲
19

CONSUMER PROTECTION ACT 1999

General procedural unfairness

24C. (1) A contract or a term of a contract is procedurally unfair if it has resulted in an unjust
advantage to the supplier or unjust disadvantage to the consumer on account of the conduct
of the supplier or the manner in which or circumstances under which the contract or the term
of the contract has been entered into or has been arrived at by the consumer and supplier.

General substantive unfairness

24D. (1) A contract or a term of a contract is substantively unfair if the contract or the term
of the contract
(a) is in itself harsh;
(b) is oppressive;
(c) is unconscionable;
(d) excludes or restricts liability for negligence; or
(e) excludes or restricts liability for breach of express or implied terms of the contract
without adequate justification.

20
 Classical Test -

degree of importance by the contractor

Modern test
consequences of the
-
seriousness of the breach

*
Important to know the facts of the cases
evidance :
documentary
letters film
Contract ↑

, ,
voice
recording / I
written
.....

oral t
statement
e
Foral # written
A Read Section 91 & 92 Parole evidance *** 157
e
rule
The oral statement shouldn't section
contridict the document
However Section 92 ca) shows that the consent of
person wasn't
freely givenand need to use oral statement
G2(b> I
collectral contract -

subsequent contract of the first contract

document which is silent & which is not
any
-

inconsistent with it's terms , be

may provided
and in
considering
q2() -
the existence of
any separate agreement constituting
oral
a condition precedent to the attaching of any obligation
under-such contract
of
q2cdl-modified the condition contract
, using oral statement
92ce) not expressly
-

any usage
custom
or
by which incidents mentioned in

any contract can be applied in contract a

q2Cf) -
ER' LATEIEE contract A; 254h-In
*
 TERMS OF A CONTRACT

oral
↑
WRITTEN CONTRACTS - written

Why is a written document important?

You said $50 per NO I said $55 per

day day....
 Section 91 of the Evidence Act 1950

• When the terms of the contract…have been

Giari
reduced by or by consent of the parties to the
form of a document…no evidence shall be given
in proof of the terms of the contract…except the
document itself…

Evidence
Section 92 of the Evidence Act 1950
(Parol Evidence “Rule”)
• Where the terms of any such contract…have
been proved according to Section 91, no
evidence of any oral agreement or statement
shall be admitted as between the parties…for
the purpose of contradicting, varying, adding to,
or subtracting from its terms.
 Leong Gan v Tan Chong Motor Ltd.
[1969]
• The appellant and respondents 2 MLJ
executed 8
and registered two leases under
which a piece of land was leased to the respondents for the period of four
years. When the appellant applied for repossession of the land, the
respondents argued that there was an oral agreement between them which
allowed the respondents to occupy the land for 12 years. The issue raised
before the High Court was in regard to the admissibility of the oral
agreement in view of section 92 of the Evidence Act 1950.

• Raja Azlan Shah J (as His Majesty then was) observed that according to
section 92 of the Evidence Act 1950, “… extrinsic oral evidence is
inadmissible to show that the registered lease was not meant what it
purports to be …”. In other words, the extrinsic oral evidence (the oral
agreement) is inadmissible to contradict what has been expressly agreed in
the written agreement by the parties. Therefore, the appellant’s claim for
repossession of the land was allowed.
• Trakic A., et al., Law for Business, (Sweet & Maxwell Asia: Malaysia, 2018) at
p. 150.

• Section 92 should only apply if the

courts are certain that the parties have
reduced all their contractual terms into
a written document.
 Statutory Exceptions to Parol Evidence Rule –
Proviso (a) – (f) to section 92 of Evidence Act 1950

1. Invalidity of the documents – proviso (a) to section 92;

2. Separate oral agreement (collateral agreement) – proviso (b) to

section 92;

3. Condition precedent – proviso (c) to section 92;

4. Subsequent oral agreement – proviso (d) to section 92;

5. Usage or custom – proviso (e) to section 92; and

6. Ambiguity – proviso (f) to section 92.

under fraud
ORAL CONTRACTS AND
-sued or
wis presentation
PARTLY ORAL AND PARTLY WRITTEN
CONTRACTS
A may represent to B during the course of negotiations that
the car he is selling to B is a 2014 model. Later on A and B
enter into a written contract which is silent on the age of the car.
After a while, to his surprise, B finds out from his mechanic that
the car he purchased from A is a 2010 model. He wishes to sue A
for breach of contract and he could be successful only if A’s
statement about the age of the car is part of the contract, i.e. a
contractual term. If the statement is not term of the contract, then
B will have to find out what it is and what effect would it have on
the subsequent written contract agreed by the parties.

(Trakic A., et al., Law for Business, 2nd edn. (Sweet & Maxwell
Asia: Malaysia, 2018), p. 147.)
 ‘Term’ or ‘Mere Representation’?

• Need to distinguish between ‘terms of a contract’

and ‘mere representations’.

• Why?

condition that need

Term is prior
to be known by both parties
Test
• Primary: the intention of the parties judged
objectively (reasonable person test)

• Secondary: 4 subsidiary factors:

1. Time
2. Writing
3. Importance of a statement
4. Skill and Knowledge
 Time
• If a long time elapsed between the time of the making of the crucial
statement and the conclusion of the agreement – a representation.

• Routledge v McKay [1954] 1 All ER 855

Writing
• If the contract is in writing – any oral statement made
before the contract was put in writing, the court will
probably regard as mere representation.

• Routledge v McKay [1954] 1 All ER 855

• The statement on motorcycle’s age was not
incorporated into the written document and, thus, it
was regarded as a mere representation and not a term.