ACCEPTANCE

By
Prof. Dr. Norhashimah
Mohd. Yasin
(LAW 1210)
1
• Definition
• A final expression of assent to the
terms of a proposal
• An unconditional assent
communicated by the offeree to the
offeror to all terms of the offer, made
with the intention of accepting
• See COA Bekalan Sains P&C SB v
BBMB [2011] 5 MLJ
2
• Relevant Provisions
• S2(b)
• S2(c)
• S3 Communication, acceptance and revocation of
proposals
• S4 Communication, when complete
• S5 Revocation of proposals and acceptance
• S7 Acceptance must be absolute
• S8 Acceptance by performing conditions or receiving
consideration
• S9 Promises, express and implied

3
• Requisites of A Valid Acceptance
• S7(a) must be absolute and unqualified
• Must correspond with the exact terms proposed by
the offeror in his offer
• See the case of Cheng Keng Hong v Govt of the
Federation of Malaya [1966]
An unconditional acceptance of a tender forms a
contract and binds both parties.

4
• If the acceptance is not absolute, it will invalid the
offer.
• Examples:
• Counter offer
• Refer to cases of Hyde v Wrench (1840)
• Malayan Flour Mills Bhd [2001]
• Jones v Daniel [1894]: A offered to buy a property
from B. In accepting the offer, B enclosed with the
letter of acceptance for the signature of A. This
document constituted various terms which had never
been suggested in the offer.
• Held: Not valid contract.
5
• Acceptance by “act or omission”
• By act/conduct
• An offer may invite acceptance by an act or conduct .
In such a situation, the requirement that the
acceptance must be communicated to the offeror
may be waived.
• See S 3 , S8
• Carlill v Carbolic Smoke Ball
• COA held: P had accepted the offer, bought a smoke
ball, used it as directed and still caught a flu.
Acceptance by conduct
• Asia Corporation Ltd v ST Ramakrishnan & Lim Kean
Seng [1949] MLJ 206 (see the facts)
6
• Asia Corporation Ltd
• An order (of goods) sent to a supplier is an offer to
buy and the sending of the goods by the supplier is
an acceptance to tht offer.
• The Resp (offeree/seller/supplier) was in Penang
• The Appellant Co (offeror/buyer) in India
• In response to some correspondence (2
telegrams)between them, in Dec 1947, the Resp
(seller/acceptor) shipped a consignment of nuts to
the App.
• App (India) refused to accept the nuts, so Resp
(Msian) sued for breach of contract

7
• According to the judge (William CJ, COA)
• “..the 2 telegrams constituted an order for goods by
the App and this was an offer to buy the goods. They
specifically asked in both telegrams the goods be
shipped….the act of the shipping constituted an
acceptance by the Resp of an offer made by the
Appellant….”
• Held: since the acceptance of the offer took place in
Penang, the ct is concluded in Penang

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• Acceptance by ‘Omission”
• Acceptance by silence (TB p 114-115)
• See Fraser v Everett [1862]
• Failure to reply to the offer may not amount to consent/acceptance.
Merely intended to accept but no communication
• Acceptance by silence is not an acceptance. Ct held: No rule of law
that silence gives consent in mercantile contracts.
• Felthouse v Bindley (1826)
• F offered to buy his nephew’s horse for a specified sum. He told the
latter that “if I hear no more abt him, I shall consider the horse as
mine”. The nephew never gave any reply. Somehow, the horse was
sold and the uncle sued him. Held: No contract as silence constituted
no acceptance. Why? (1)Protects the acceptor if he has no intention
to accept the offer 2) He will have to answer all the unwanted
offers/unsolicited mails
• In practice: deem accept/deem consent. Eg: If i dont listen anything
from u by tmrow, I wd take u as accepted the offer
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• Manner of Acceptance
• See S3 & 7(b) of CA
• The prescribed manner of acceptance must be
followed.
• Otherwise, the usual/reasonable manner of
acceptance must be applied.
• At common law, an acceptance communicated by
any other mode which is no less advantageous will
conclude the contract.
• Eg, acceptance requested by return of post may be
made by telegram/whatsapp or verbal message.
• See the case of Tinn v Hoffman & Co (1873)
10
 TINN V HOFFMAN
P wrote to D asking for a price on 800 tons of iron. D offered the
iron at 69s per ton and asked that acceptance should be by post.
Held by Honeyman J: ‘By post’, does not mean that exclusively a
reply by letter or by return of post, but a reply by telegram or by
verbal message or by any other means at least as fast as a letter
written by return of post would have been sufficient.
Followed in Manchester Diocesan Council for Education v
Commercial and General Investment Ltd [1969] ER 1593
• Held, when offeror has prescribed a particular method of
acceptance, but not specifically insisting tht only tht mode of
acceptance shall be binding, an acceptance communicated by any
other mode which is less advantageous to the offeree will
conclude the ct.

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• Communication of Acceptance
• S3 CA
• Acceptance must be communicated by the offeree or
any person authorised by him.
• Powell v Lee (1809)
• Powell, having applied for the post of headmaster
was told by one of the school Board members
(Management Committee) that he had been
successful in the interview (3 applicants). However,
the Board changed its mind and appointed someone
else.
• Powell (P) sued the Board n claimed breach of ct

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• Was there a contract between Powell and the Board?
• It was held that the passing of information by one of
the board members to Powell did not amount to the
acceptance of an offer by the offeree or its
authorised agent.
• The individual board member had acted prematurely
without authority. Therefore there was no
acceptance by the board of Powell’s offer and thus
there was no contract.
• The unauthorised communication of acceptance is
inadequate to form a ct.

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• Communication of Acceptance (manner):
a) Communication by Instantaneous means (receipt
rule)
b) By post (postal acceptance rule)
c) By electronic means
Generally, all acceptance (and) offer must be
communicated to the party (s3 CA)
The legal issue:
1) What is the meaning of communication?
2) When the communication of acceptance is
complete

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• (a) Acceptance by instantaneous means of
communication
• General rule: an acceptance is communicated when it
is brought to the notice of the offeror
• Eg: telephone, sms, fax, telex, whatsapp.
• No provision in CA due to historical reason.
• Communication of acceptance is complete when it is
received (knowledge) by the offerror
• Entores Ltd v Miles Far East Corp [1955]
• Issue:
• 1)When does the communication of acceptance
complete?
• 2)Which law governs the contract?
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• An offer was sent by telex (akin to fax machine) from London
(offeror/P in London). P In London made an offer by telex to
D (offeree) in Holland (D’s Co was incorporated in the US) .
• Acceptance was sent by telex from Holland n received by P’s
telex machine in London.
• P (offeror) wanted to sue D for BOC and to start an action in
London.
• Issue: when the ct is made and which law applies? EU law vs
US law (Postal rule), 3 countries involved UK, Holland n US.
i)The communication of the acceptance was complete when it
was received by the offeror in London.
ii) The contract was made in the country where the acceptance
of the offer was received i.e in London.
• As such, English law of contract was applied.
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 The COA illustrated with 3 situations
1) Face to face-shout an offer but cant hear
acceptance as there is an air craft flying overhead-
no ct
2) Telephone- make an offer by phone n in d middle of
reply , the line goes dead/disconnected- no ct.
3) Telex-a clerk taps out on teleprinter in London an
offer n immediately recorded on a teleprinter in
Manchester and the acceptor taps out acceptor but
in the middle of typing the acceptance, the line is
off –no contract
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• Brinkibon Ltd v Stahag Stahl (1982)(HOL)
• Confirmed ruling n principle in Entores case.
• Acceptance by telex is complete when it is
heard by the offeror
• Telex is a method of instantaneous
communication.
• The general rule is that a contract is formed
where acceptance of the offer is communicated
by the acceptor to the offeror.
• See Msian case of YK Fung Securities S/B [1997]
(COA upheld the HC’s application of Entores
legal principle 18
• (b) Acceptance by Post(by a course of
transmission-gap of time btw time of posting
and time of receive)
• Postal rule is an exception to the general rule
that the acceptance must actually be
communicated to the offeror.
• Postal rule: when acceptance by post has been
requested/prescribed as a means of
communication, the acceptance is complete
against the offeror once the acceptance letter
is posted, even if the letter is delayed/lost in
the post/never reaches the offeror [s(4)(a) CA
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• S(4)(2)(a) – as against the proposer
(post/despatch per se)
• S(4)(2)(b) – as against the acceptor(received
and knowledge)

• 2 legal effects/legal risks

• 1) when acceptor posts the acceptance letter to
the offeror, the communication of acceptance is
complete against the offeror, so, the offeror
cannot revoke the offer as acceptance is
complete against him (when the acceptor posts
the letter). 20
• The acceptor is in advantageous position (see
Illustration in S5).
• He can post the letter of acceptance and stop
the proposer from revoking/terminating the
offer.
• The acceptor in the meantime can
withdraw/revoke the acceptance by using
speedier means of communication before the
acceptance letter reaches the
offeror/proposer.

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 Disadvantages of postal rule
• 1) legal lie- deem received by offeror although in actual
fact it is not
• 2) As long as acceptor can prove the posting/despatch
(letter/telegram) date, where the acceptor lost control
when the letter has been posted
• 3) Once the letter is posted, offeror is at risk of not
actual receipt of the letter (delayed or misdirected)
• 4) It is not the duty n resp of acceptor that the letter
reaches the offeror, once letter is posted/in the course
of transmission/out of his control.
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 Mitigating steps
• 1) The offeror must exclude the application of
postal rule in the offer letter by incorporating
the terms in the offer n insists on actual
receipt of a posted acceptance.
• 2) Must not use post as a manner of
acceptance, use other instantaneous means
like telephone, fax, telex, whatsapp

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 Cases
Ignatius v Bell (1913) FMSLR 115
Facts:
• D (proposer) gave the P (acceptor) an option to
purchase his land and stated that the option
should be exercised before 20th August in writing.
• On 16th August, P sent a letter accepting the
offer but it was only received by D on the 25th
August. By that time, D had already sold the land
to somebody else. P sued for specific
performance.

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Court of Appeal of Selangor:
• The acceptance was complete against the D
(proposer/offeror) when it was put in the
course of transmission so as to be out of the
power of the P (acceptor) i.e. when P posted
the letter of acceptance on the 16th August.

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Adam v Lindsell (1818)
F:D (offeror) wrote to P (acceptor) offering to sell wool on
certain terms and asked for a reply “in course of post”. This
offer was delayed in 2 days in the post and reached P later
than usual. Not receiving a reply, D sold the wool to the
third party. P upon receiving the offer letter immediately
posted his acceptance.
H:Acceptance was complete upon posting the letter, there
was a valid contract btw the parties. P was entitled to
damages as his acceptance was complete when the letter
was posted before the wool was sold to the third party

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The Application of S4(1) and S4(2)CA in by Msian
Court (HC n CoA)
Madam Loh Sai Nyah v American International
Assurance Co Ltd [1998] 2 CLJ 327
F: P/Ap/offeror’s Hsbd (dcd) effected personal
accident policy with AIA (Def/Resp/acceptor).
• Premium was paid on 24 June 1977 and on 26
June the H died.
• Premium were received by Resp on 27 June 1977
and the proposal form was received by Def on 30
June.
27
 Issue: Whether Appellant can claim the
insurance money from the Resp/was there an
insurance ct ?
• HC held: it is clear that the proposal has not come to the
knowledge of the defendant/Resp (proposal must be
communicated (S3) n S4(1) n communication of proposal is
complete upon knowledge to the acceptor) as H died on 27 June
1977. Even if the proposal had come to the knowledge of the
defendant(in my judgement it had not), there wd still no ct as
against the Def until the acceptance has come to the knowledge
of the dcd/h(S4 (2)(b))…Applying S4(1) and (2) of CA 1950, no ct
was formed btw the dcd and D.
• On appeal by the wife, COA upheld the judgement of the HC.
• Compare with Borhanuddin v AIA [1987-1987) MLJ (contra
proferentum rule)

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 The post must be a reasonable means of
communicating acceptance
• Sec 7(b)
In order to convert a proposal into a promise,
the acceptance must be expressed in some
usual and reasonable manner.
-Next door neighbour- what is the usual n
reasonable manner of acceptance?
Can post be usual n reasonable manner?

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Henthorn v Fraser [1892] (COA)
‘it must have been within the contemplation of the parties that,
according to the ordinary usages of mankind, the post might be
used as a means of communicating the acceptance of an offer’
7 July 1891 D (offeror) delivered by hand to P (Acceptor) in
Liverpool) a letter of offer to sell property to him for 750
pounds.
P resided in Birkenhead (near Liverpool). He took the letter of
offer there.
On 8 July 1891, P’s solicitor posted a letter of acceptance (on
behalf of the Plaintiff) in Birkenhead at 3.50pm.

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• Letter not received at Ds office until 8.30pm, after it had
closed at 6.00pm.
• On the same day, D addressed a letter to P revoking the offer.
• This letter was posted in Liverpool between 12.00 and
1.00pm. It was received in Birkenhead at 5.30pm.
• The letter of revocation was received by P after his letter of
acceptance was posted, but before the Ps letter of acceptance
reached D.
• On 8 July, D sold the property to a third party for 760 Pounds.
• D contended that (1) the acceptance was complete only when
they received Plaintiff’s letter and not when the letter was
posted (RECEIPT RULE)
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• (2) The D also argued that the postal rule did not apply in this
case because the letter containing the offer was not posted, but
was actually handed in to him at D’s office in Liverpool.
• Held: where an acceptance is made through the post, the
contract is complete as soon as the acceptance letter is posted.
• An authority to accept by post must be implied given the
circumstances of the case. Although P received the offer letter at
D’s office in Liverpool by hand, he lived in another town, and it
must have been contemplated that he would take the offer to his
place of residence, and D must have known that if P accepted the
offer, P would communicate his acceptance by post.

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 Lee Seng Heng v The Guardian Assurance Co [1932] MLJ 17
(the revocation of acceptance 4(3)CA)

D(Co) posted a letter on the 27th March from

S’pore to P in Buluh Kasap (BK), Johor to
terminate/revoke P’s fire policy (offer). The
nearest post office to BK was at Segamat and
letters to BK was only delivered by the postman
when the amount of letters justified a journey.
1st April, (3 days later) P’s village destroyed by fire &
P claimed insurance. D argued insurance
ct/policy has been terminated on 27th March
(date of posting)
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Held: In the circumstances of the case, it is found that the parties
agreed to use the post, communication by post was their usual
communication, have exchanged 34 letters by post.
Therefore postal rule applies. The insurance policy was
terminated. (s4(3)(a))
(the court did not consider special circumstances, the letter was
not delivered as the whole village was destroyed by fire).
See English case of Household Fire And Carriage Accident
Insurance Co Ltd v Grant [1874-80). Held : if the letter was lost
in the post, the offeror is still bound in contract even thou he
did not receive the acceptance letter.

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 Intention of the parties- where the manner is
being prescribed
Sec 7(b)
• If the proposal described a manner and the acceptance is
not made in that manner, the proposer may insist that his
proposal shall be accepted in the prescribed manner……

• An offeror can specifically exclude the postal rule by

expressly stipulating that acceptance of the offer must be
received by him/actual notification of the offeror is required
• In such a case, acceptance takes effect upon actual receipt
of the letter.

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Holwell Securities Ltd v Hughes
F: Acceptance must be in writing and self-
delivered (via hand). The acceptor posted
the letter of acceptance – letter lost.
H: The manner of acceptance has been
prescribed. There was no binding
contract.

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Eliason v Henshaw (1819)
Facts: E specified acceptance should be
within specified time and sent to
Harper’s Ferry. H sent it to Georgetown
thinking that the letter of acceptance
would reach E earlier.
Held: E can refuse the acceptance of letter
as it was not done in the prescribed
manner. 37
 Tinn v Hoffman [1873]

P wrote to D asking for a price on 800 tons of iron. D

offered the iron at 69s per ton and asked that
acceptance should be by post.
Held by Honeyman J: ‘By post’, does not mean that
exclusively a reply by letter or by return of post, but
a reply by telegram or by verbal message or by any
other means at least as fast as a letter written by
return of post would have been sufficient.
.

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(c)Acceptance by email/e-commerce

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When acceptance is concluded?

Uncertainty: 2 rules:
• (1) postal rule - acceptance on offer is
deemed to be concluded/completed when
the acceptance is posted. When the email is
sent/sending button.
• (2) receipt rule (instantaneous modes of
communication).- acceptance reaches the
offerror and been brought to the notice of
the him. When the email is receipt and read
by the offeror (actual access)
40
 Arguments for applying postal rule
• Wht is the diff btw post (snail mail) n e-mail-equivalent to
digital equivalent of postal service/system. Both use third
party. Outbox of sender (post-box equivalent), ISP of bth
parties (post-offices), inbox of recipient (mailbox)
• Mgt be a gap btw sending n receiving-depends on
technicalities eg line, server, ISP, wifi/internet connection.
• Risk of delivery of e-mail message as same as ordinary
mail, wrong addressee or possibility of delayed delivery of
message (btw sending n receipt) due to technological
failure.

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 Contracts entered into by Electronic
Means
See the cases on online contracts (TB pp 139-141)
• Chwee Kin Keong v Digilandmall.com (2004)(Spore)
(TB at p.139)
• eBay International AG (2006)(Aust)(TB at p. 139-140)
• Thomas v BPE Solicitors (2010)(UK) is said to have
followed Entores n Brikibon (receipt rule. Deem
received but not actual knowledge)(see TB p141)
• Oddin Oilfield Services Sdn Bhd v Omega Completion
Technology [2015]MLJU 277 (Msia)

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 Electronic Commerce Act 2006(ECA)

• Preamble: An act to provide for legal recognition

of electronic messages in commercial transactions,
the use of electronic messages to fulfil legal
requirements and to enable and facilitate
commercial transactions through the use of
electronic means and other matters connected
therewith.

• Electronic message means an information

generated, sent, received or stored by electronic
means
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 ECA’s Application (S2)
• ..ths Act shall apply to any commercial
transaction conducted thru electronic means incl
commercial transactions by Fed n State Govts”.
• The Act uses the terms as follows
• (a) originator(sender)
• (b) addressee (receiver)
• (c)Information Processing System (IPS)(HW n SW)
• (d) electronic signature

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• S6 legal recognition of e message
• S7 formation and validity of E Contract
• S8 information in writing
• S9 E signature –to refer to Digital Signature
Act 1997 shall be applicable to any digital
signature used a a medium for commercial
transactions (can do away pen n paper to sign
a ct/agt)

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Section 20 : Time of despatch

Unless otherwise agreed between

the originator (sender) and the
addressee (receiver), an electronic
message is deemed sent when it
enters an information system outside
the control of the originator(postal
rule or receipt rule?)

46
• Section 21: Time of receipt
Unless otherwise agreed between the originator and the
addressee, an electronic message is deemed received –
(a)When the addressee has designated an information processing
system (IPS) for the purpose of receiving electronic messages,
when the message enters the designated processing system
(upon receipt), or
(b) Where the addressee has not designated an information
processing system (IPS) for the purpose of receiving electronic
messages, when electronic message comes to the knowledge
of the addressee (actual receipt rule/actual notice)

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• S22: Place of despatch
• Unless otherwise agreed between the originator and the
addressee, an electronic message is deemed sent from the
originator’s place of business, and
(a) Where the originator has more than one place of business,
at the place of business that has the closest relationship with
the transaction or where there is no place of business that has
the closest relationship with the underlying transaction, at the
addressee’s principal business; or
(b) Where the originator does not have a place of business, at
the originator’s ordinary place of residence.

48
• Section 23: Place of receipt
• Unless otherwise agreed between the originator and the
addressee, an electronic message is deemed received at the
addressee’s place of business, and
(a) Where the addressee has more than one place of business,
at the place of business that has the closest relationship with
the transaction or where there is no place of business that has
the closest relationship with the underlying transaction, at the
addressee’s principal business; or
(b) Where the addressee does not have a place of business, at
the addressee’s ordinary place of residence.

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 ACCEPTANCE “SUBJECT TO
CONTRACT”
Gen rule: No binding contract between the parties.
• Reasons:
i) No intention to create legal relations
ii) Contrary with Sec 7(a) – acceptance must be
absolute.
• See SC case of Ayer Hitam Tin Dredging [1994] 2
MLJ 754 (TB p 86)
• UNLESS there are other factors which could prove
otherwise (exceptions)
50
• In interpreting acceptance “ subject to contract” or
“subject to preparation of formal ct”, it is important to
see the intention of the parties.
• The word ‘contract’ may implies two things:
Either:
(a) the execution of a written contract is just a mere
formality, whereby the parties had already entered into
a legally binding contract, or
(b)the parties intended that their rights and obligation
are suspended until a formal contract was entered into.
51
(b) The parties intended tht their rights and obligations are
suspended until a formal contract was entered into
(1) Low Kar Yit v Mohd Isa [1963] MLJ 165
D gave an option to the P to buy land subject to;
i) Formal agreement-drawn, agreed & sign
ii) Agreement approved by High Court of KL
P’s exercised the option but D refused to sign.
P sued D.
Held: no binding contract.

52
Gill J:
…the option was conditional upon a formal
contract to be drawn up, agreed and signed by
both parties. Therefore by exercising the
option there is no valid acceptance yet and
merely an agreement to enter into an
agreement (pre-agt).

53
(2) Chilingworth v Esche
Held: ‘Subject to contract’ did not create a contract
because a new and further condition was introduced by
the use of the phrase.

(3) Winn v Bull

F:Defendant agreed with the plaintiff to take a lease “
subject to the preparation and approval of a formal
contract”.
H: No binding contract.

54
(4)Ayer Hitam Tin Dredging Malaysia Bhd [ 1994] 2 MLJ 754
• Fact: Negotiation for construction of housing project. In a
letter stated subject to the terms and proposals to be
incorporated in an agt. No agt was executed.

• Supreme Court: The letter was merely a letter of intent. If

an agreement is made subject to certain conditions, then
until those conditions are accepted, there is no
enforceable contract.

55
(5) Abdul Rahim bin Syed Mohd [1996] 3 MLJ 385
F:The purchaser and vendor signed a MOU for the sale of land.
H:Considering the MOU as a whole, its objective and intention
of the parties. The MOU was not a legally binding
agreement. MOU has no legal status (merely an intention to
do sthg)
More cases on MOU
1) Lim Hong Liang v Tan Kim Lan [1997] 5 MLJ 157
2) Ismail Mohd Yunos v First Revenue Sdn Bhd [2000] 5 MLJ
42

56
• Kamalanathan Ratnam J:
“the term MOU by itself connotes that it is only a memorandum
witnesses the mutual understanding or intention of the parties
to do a certain act or enter into a certain arrangement, usually
upon occurrence of certain other events. It is usually a
preparatory agreement for preliminary arrangement and
therefore it is generally way to far from being treated as a valid
and enforceable contract which enjoy a binding effect under
the law. However, it does not mean that all MOU is per se no
binding on the parties as each case must be decided on its own
facts.”

57
(6)Lim Chia Min v Cheah Sang Ngeow [1997]
1MLJ 127
F:Defendant intends to buy the P’s business – sent
letter with RM5000 cheque to the P stated that
a formal agreement should be executed within
four weeks; failure – the P shall forfeit the sum.
H: The letter did not constitute a legally binding
contract merely expressing the D’s intention.

58
(7)Lee Chin Kok v Jasmin Arunthuthu Allegakoen [2000] 4
MLJ 481
F: Estate agent of R wrote a letter marked ‘without prejudice
and subject to contract’ to A. Letter stated that A must pay
RM3000 as a sign of good faith & if local authority
approved the plans , A has to pay 10% of the sale price.
Later R sold the property to someone else & A took action
against R.
H: There was no concluded contract between the parties.
Only if the plans were approved, the purchase agreement
(SNP) will proceed.

59
 (a) Cases – different/conflicting decision(the contract
is just a mere formality as parties had already entered
into a legally binding ct)

(1)Daiman Development Sdn Bhd [1981] 1 MLJ 56

Respondent paid a booking fee & signed a pro forma for a purchase
of a house from Appellant. Ap increased the price, Resp refused to
pay. Ap argued pro forma was subject to contract, no contract yet.
Privy Council held: Upon the true construction of the pro forma , the
Appellant was clearly bound by it.

Pro forma: document describing a commitment from seller to sell

goods to a buyer at specified terms. Not a true invoice as yet.

60
(2)Diamond Peak Sdn Bhd [1982]
F:D agreed to sell a land to P. Transaction was
completed through letters. In a letter, D stated
that “ I leave the technical details to the lawyer”.
Later D refused to sell & P brought an action for
SP.
H: There was already a binding oral contract
(intention to create legal relation).(
61
(3)Voo Syun Mui v Yap Mooi Mooi [1984] 2 MLJ
48
H: It was the intention of the parties to come to
a complete agreement about the sale. The
mere fact that it was subject to an agreement
to be signed did not necessarily mean that
there was no enforceable contract. It was a
valid & binding ct. (HC and FC decs).

62
(4)Charles Grenier Sdn Bhd [1996]

FC held: There is an open and enforceable contract

only when the parties to the transaction, the
property, the price and the essential terms have all
been identified with sufficient clarity.
Argument:-”Subj to S&P” –still negotiation, no ct yet.
FC held: S&P in the context of other correspondence
show that this is merely an intention to formalise
already concluded agt.

63
 OTHER CASES
• Million Group Credit Sdn Bhd v Lee Shoo Khoon
[1986] 1 MLJ 315
• Ng Brother Construction v Kaolin (Msia) Sdn Bhd
[1985] 1 MLJ 245
• Branca v Cobarro [1947] KB 854 (provisional agt)
• Chin Kam Pang v Dtn Chan Wu Lee Yun [ 2005] 1
MLJ 302
• Sou Yong v Yuzin [2006] 4 MLJ 209 (COA)
• Chuah Seow Keng v Rhina Bhar [1997] 3 MLJ 17
(COA)
• EMS Bowe (M) SB v KFC [1999] 4 MLJ 424 (draft
agt ) 64