Q1. What is a company? A company is a legal entity that is separate and distinct from its members and shareholders. When a company is formed, it is said to have become "incorporated". A company is capable of owning property, making contracts, employing people and being sued or of suing. Unlike sole proprietorships or partnerships, companies have continuity of succession, as it is unaffected by the death or incapacity of one or more of its members.
Q2. What is the principal legislation governing the formation and operation of companies in Malaysia? The Companies Act 1965 is the principal legislation governing the formation and operation of companies in Malaysia. The Act enables an association of persons to form various types of corporate organization known as registered company. In addition to protecting the right and interests of shareholders in particular and investors in general, this Act also provides facilities for the incorporation of companies, its constitution, its relation with members and creditors, management and winding-up. The Registrar of Companies Malaysia or ROC enforces and administers the Companies Act 1965. Every company intending to carry on business in Malaysia must register with Registrar of Companies before conducting any business activity.
Q3. How do we start a company? A company must have two directors at all times. A director must be a natural person and who must have their principal or only place of residence within Malaysia. A secretary of a company must be a natural person who has his or her principal or only place or residence in Malaysia. A secretary must be a member of a prescribed body or is licensed by the Registrar of Companies, Malaysia. You must first make an application to the Registrar of Companies to ascertain whether the intended name for your company is available. If so, three months reservation of the name is given from the date of approval. You need to submit Form 13A and a RM30 fee will be charged for each application. Within the three months reservation period, you must submit documents such as the Memorandum & Articles of Association, Form 6 and Form 48A together with the registration fee to the Registrar of Companies. The Statutory Declaration Form 48A is required of each proposed directors and subscribers of the company. A company must have at least two directors named in the Articles of Association of the company and two subscribers to the Memorandum and Articles of Association of the proposed company. In the Articles of the proposed company Form 6, at least one secretary of a company shall be named. The Registrar of Companies will issue a certificate of incorporation upon registration. A company must have a registered office in Malaysia of which all books and accounts required under the Companies Act 1965 should be kept. In the circumstances of a public limited company, the directors of a company have the responsibility to ensure that a prospectus is issued and circulated to the public and its contents are in accordance with the requirements of the Companies Act 1965.
When Ali and his family take meal in a restaurant, there is a contract. But when is the offer? And when is the acceptance? Also, suppose he sees this special dish 'X' on the restaurant's website. He calls and they say it should be available. So he makes a reservation. But after that they say it is out of stock. Discuss the issue above whether Ali’s reservation contract enforceable? And is his contract for the availability of X enforceable?
The elements of a contract are offer, acceptance, exchange of consideration and discussion of terms and conditions/promises. It would be hard pressed to even argue that an offer and acceptance took place. He could try to argue it is when he enter the restaurant he is offering to eat there and they are accepting his offer by seating him. However this would have policy repercussions because say for instance he decides to change his mind after seeing the menu and leave prior to ordering, he could technically be in breach of contract. The Boots Pharmacy case explores this issue and it was determined in a retail setting the offer and acceptance does not take place until the final transaction where the customer makes an offer to the cashier to purchase a product. Therefore, I would imagine the same rule would apply in the restaurant setting where money (thus consideration) is exchanged.
Now in regards to 'X' dish as there was no contract in place he could not sue for breach of contract. The representation made on the phone is not a guarantee - notice the restaurant said it "should" be available. Should do not imply something definite - as such I think they would have no liability.
Ali’s contract for the reservation is not enforceable. He offers no consideration in exchange for their service. If he paid them money in exchange for the reservation, for example, then perhaps he would have an enforceable contract in theory.
Prior to March 1996, known as the Department of Inland Revenue Malaysia which under the Ministry of Finance. Also, it became a Statutory Board on the 1st March, 1996.Generally, the Inland Revenue Board Malaysia (IRB) act as an agent to provide services in assessing, administering, collecting and enforcing the payment of income tax and other taxes that are under the board’s jurisdiction. In addition, the Inland Revenue was, until April 2005, a department of British Government responsible for the collection of direct taxation, including income tax, national insurance contributions, capital gains tax, corporation, tax, inheritance tax, estate duties, stamp duties and real property gains tax. Recently, the Inland Revenue also administered the Tax Credits schemes, such as Working Tax Credit (WTC) and Child Tax Credit (CTC), are paid by the Government into a recipient’s bank account or as part of their wages. Also the Inland Revenue was also responsible for the payment of child benefit.
Functions of the Board:
(a)To act as agent of the Government and to provide services in administering, assessing, collecting and enforcing payment of income tax, petroleum income tax, real property gains tax, estate duty, stamp duties and such other taxes as may be agreed between the Government and the Board
(b)To advice the Government on matters relating to taxation and to liaise with the appropriate Ministries and statutory bodies on such matters
(c)To participate in or outside Malaysia in respect of matters relating to taxation
(d)To perform such other functions as are conferred on the Board by any other written law
(e)May act as a collection agent for and or behalf of any body for the recovery of loans due for repayment to that body under any written law
Powers of the Board:
(a)To enter into contracts
(b)To utilise all property of the Board, movable and immovable, in such manner as the Board may think expedient including the raising of loans by mortgaging such property
(c)To engage in any activity, either alone or in conjunction with other organisations or international agencies, to promote better understanding of taxation
(d)To provide technical advice or assistance, including training facilities, to tax authorities of other countries
(e)To impose fees or charges for services rendered by the Board
(f)To grant loans to employees of the Board for any purpose specifically approved by the Board
(g)To provide recreational facilities and promote recreational activities for, and activities conducive to, the welfare of employees of the Board
(h)To provide training for employees of the Board and to award scholarships or otherwise pay for such training
a) Formation A contract of sale is made by an offer to buy or sell goods at a price and by the acceptance of such an offer: Section 5(1), Sales of Goods Act 1957. The contract may provide for the immediate delivery of the goods or the immediate payment of the price or both. Delivery or payment may even be by installments: Section 5(1), Sales of Goods Act 1957. Price means the money consideration for the sale of goods.
b) Formalities A contract for the sale of goods can be made in any manner that shows agreement between the buyer and seller. A contract of sale may be made in writing or by word of mouth, or partly in writing and partly by word of mouth, or maybe implied from the conduct of the parties: Section 5(2), Sales of Goods Act 1957. There is an acceptance of goods when the buyers, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.
c Price As seen earlier, a contract of sale is basically an offer to buy or sell goods for a price and the acceptance of such an offer. Price is the money consideration for the sale of goods. Where necessaries are sold and delivered to an infant, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefore. Price may be fixed in the following manner: 1.It may be fixed by the contract. 2.It may be left to be fixed in a manner agreed in the contract. 3.It may be determined by the course of dealing between the parties. 4.Where the price is not determined in any one of the aforesaid ways, the buyers must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case: Section 9, Sale of Goods Act 1957.
d) Capacity of contract The question of capacity to contract is regulated by the Contracts Act 1950. The legal principles and the law on contract governing capacity in ordinary contract law apply to contracts of sale. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.
The English rule "Nemo dat Quod non habet" is set out in the Section 27 of the Sales of Goods Act 1957 which means that if goods are bought from a person who is not the owner, and who does not sell them under the owner’s equity, the buyer does not acquire any title. This rule is to protect the right of ownership. This general rule is illustrated in the cases of Lim Chut Lai v. Zeno Ltd. and Ng Ngat Siang v. Arab-Malaysian Finance Bhd. & Anor.
However, there is six exceptions to the rule which are: 1)The operation of estoppel (section 27) 2)Sale by mercantile agent (section 27) 3)Sale by one of joint owners (section 28) 4)Sale under a voidable title (section 29) 5)Sale by a seller in possession after sale (section 30(1)) 6)Sale by a buyer in possession (section 30(2))
1) The operation of estoppel Where the owner by his conduct make it appear to the buyer that the person who sells the goods has his authority to do so and the buyer relies on that conduct, the buyer obtains a good title because the owner is precluded by his conduct from denying the seller’s authority to sell: Section 27, Sale of Goods Act 1957 and Eastern Distributers v. Goldring.
2)Sale by mercantile agent The proviso to Section 27, Sale of Goods Act 1957 provides that where a mercantile agent is, with the consent of the owner, in possession of the goods or of document of title to the goods, any sale made by him when acting in the ordinary course of business of a mercantile agent shall be as valid as if he were expressly authorized by the owner of the goods to make the same. Examples of a mercantile agent would be a broker, or an auctioneer.
3)Sale by one of joint owners Goods may be owned by more than one person. Section 28, Sales of Goods Act 1957 provides that if one of several joint owners of goods has the sole possession of them by permission of the co-owners, the property in the goods is transferred to any person who buys them from such joint owner in good faith and has not at the same time of the contract of sale notice that the seller has no authority to sell.
4)Sale under a voidable title Section 29 of the Sales of Goods Act 1957 provides that where the seller of goods has obtained possession thereof under a contract voidable under Section 19 or 20 of the Contracts Act 1950, but the contract has not been rescinded at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith and without notice of the seller’s defect of title.
5)Sale by a seller in possession after sale Section 30(1) of the Sale of Goods Act 1957 provides that if a seller continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person to any person receiving the same in good faith and without notice of the previous sale shall have the valid.
6)Sale by a buyer in possession Section 30(2) of the Sales of Goods Act 1957 provides that if a buyer having bought or agreed to buy goods, obtains possession of the goods or the documents of title with the consent of the seller, he can pass a good title to a subsequent buyer acting in good faith, even if under the first transaction he has not obtained a good title. This is illustrated in Newtons of Wembley Ltd. v. Williams.
This evening, while I’m reading some e-news, a new titled ‘RM324m suit over breach of contract’ snatched my attention. –NST online, 12 February 2010.
ALOR STAR: Two companies here are suing a Kuala Lumpur-based development company and a legal firm for RM324 million for alleged breach of contract.
Real Tech Entrepreneur (M) Sdn Bhd and Beta Semarak Sdn Bhd filed the suit against Sekutu Saujana (M) Sdn Bhd and the legal firm of Azhari and Sumari at the High Court Registry yesterday.
Real Tech managing director Ahmad Shahril Ariff Zainol, accompanied by Counsel Ahmad Rizal Effande Zainol, filed the suit on behalf of Real Tech and Beta Semarak.
The plaintiffs are seeking RM144 million for four million tones of granite in a coastal reclamation project and RM80 million for the electrified double-track project in Perlis.
The two companies are also seeking RM100 million in general damages, exemplary damages and costs.
The plaintiffs said they signed an agreement with Sekutu Saujana to supply granite for the projects on Jan 22, 2008, and had paid RM150, 000 as a refundable deposit to Azhari and Sumari, which acted as the stakeholder for Sekutu Saujana. The plaintiffs claimed that Sekutu Saujana informed them that the notice of commencement to provide the materials would be given after signing the agreement.
However, after two years, Sekutu Saujana had yet to give the notice of commencement.
The plaintiffs claimed that the defendants could not give a definitive answer and the legal firm claimed it had given the deposit to Sekutu Saujana. Based on my point of view and understanding of law of contract, the effect of an innocent party putting an end to the contract is that the innocent party must restore any benefits that he may have received from the other party- Section 65, Contracts Act 1950. If the innocent party has rendered services or had supplied goods, he may recover a reasonable sum for such services or goods rendered. If the innocent party has paid money under the contract, he may be entitled to recover the sum paid. In this case, Sekutu Saujana has to return the refundable deposit, RM150, 000 to the plaintiffs as deal in the agreement.
“Uberrimae fidei” is a Latin phrase meaning for utmost good faith. It is the name of a legal doctrine which governs insurance contracts. This means that all parties to an insurance contract must deal in good faith, making a full declaration of material facts in the insurance proposal. This opposites with the legal doctrine of caveat emptor (let the buyer beware), which stated in the previous post.
It is a fundamental requirement of the parties to a transaction or contractual agreement. The doctrine of utmost good faith is a minimum standard that requires both the buyer and seller in a transaction to act honestly toward each other and to not mislead or refrain from providing critical information to the other party.
In the insurance market, the doctrine of utmost good faith requires that the party seeking insurance discloses all relevant personal information. According to Invesropedia explanation, it given and example of if you are applying for a life insurance, you are required to disclose any previous health problems you may have had. Likewise, the insurance agent selling you the coverage must disclose the critical information you need to know about your contract and its terms.
Another way to say, "let the buyer beware." Also, in other words, consumers need to know their rights and be vigilant in avoiding scams. Generally, caveat emptor is the property law doctrine that controls the sale of real property after the date of closing.
Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud.
Before statutory law, the buyer had no warranty of the quality of goods. In many jurisdictions now, the law requires that goods must be of "merchantable quality". However, this implied warranty can be difficult to enforce and may not apply to all products. Hence, buyers are still advised to be cautions. - definition from Wikipedia
In addition, there are seven implied conditions and warranties to protect the buyers which are: 1)Implied Condition as to Title - section 14(a) 2)Implied Warranty to quiet possession - section 14(b) 3)Implied Warranty against encumbrance or charge - section 14(c) 4)Implied Condition sale by description - section 15 5)Implied Condition of fitness for purpose - section 16(1)(a) 6)Implied Condition of merchantable quality - section 16(1)(b) 7)Implied Condition on sale by sample - section 17
Today, when I was browsing through the star online website, I found a news that is related to the child abuse. The news article titled: “Couple held over toddler’s death”. – The Star Online, 15th April 2010
SUBANG JAYA: A three-year-old girl believed to have been abused for over a month by her stepfather has died, prompting police to arrest the man and the mother.
The stepfather, 27, and mother, 24, were arrested by police soon after the girl was taken to Poliklinik Komuniti Seri Kembangan. The stepfather had taken the child, identified as Jasmine Lee, to the clinic after he found her unconscious at their apartment unit in Bukit Serdang at 7.45am yesterday.
A doctor who examined the child found more than 30 bruises on her body, arms, legs, back and head. She was pronounced dead during a medical examination at the clinic. Sources said the girl was beaten on several occasions by the stepfather and the injury marks on her body pointed to constant abuse.
The doctor, who suspected something amiss when the stepfather could not explain how the girl had suffered such injuries, then alerted the police.
Selangor deputy CID chief Asst Comm Khaw Kok Chin said the stepfather was detained at the clinic while police picked up the mother at their home at 12.45pm.
“Jasmine was not sexually abused and there were no cuts on her,” he said.
A post-mortem was conducted at the Serdang Hospital. ACP Khaw said the stepfather, a mechanic, lost his job at a workshop last month and claimed that he married the woman about a year ago after she separated from her husband.
“After being jobless, he spent most of his time at the apartment with the woman who is a housewife,” he said, adding that the couple were being detained at the Subang Jaya police headquarters.
ACP Khaw urged those with information to assist police in their investigations by calling (Selangor Rakan COP hotline at 03-2052 9999, SMS to 32728 or the Subang Jaya police headquarters at 03-8948 48220).
A nearby resident, who only wanted to be known as Sham, said he had heard the girl crying constantly and screaming for several weeks.
After i read the news article,i surf internet and search for the Child Protection Act in Malaysia which explain as below.
Child Protection Act 1991, under Part VI, section 26– Offences in Relation to the Health and Welfare of Children stated that
a)any person who, being a person having the care of a child, abuses, neglects, abandons or exposes the child in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed, shall be guilty of an offence and shall, on conviction, be liable to find not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or both.
b) a parent or other person legally liable to maintain a child shall be deemed to have neglected him in a manner likely to cause him physical or emotional injury if, being able to so provide from his own resources, he fails to provide adequate food, clothing, medical or dental treatment, lodging or care for such child.
Today, when I was browsing through the star online website, I found a news that is related to one of my subject which is Business Law. The news article titled: “Malaysian businessman sued for breach of contract”. – The Star Online, 14th April 2010
KUALA LUMPUR: A 49-year-old businesswoman from China is suing Tan Sri Ngan Ching Wen for breach of contract over an agreement which required the Malaysian business tycoon to pay her RM13mil for her efforts in a development project in Xi’an Qujiang, China.
Wang Yunzhen claimed that Ngan, who is the Unico-Desa Plantations Bhd executive chairman, did not fulfil the terms of the agreement after he managed to obtain the project approval from the Xi’an Qujiang authorities as a result from a joint effort with her.
She filed the suit via the firm Messrs Halim Hong & Quek at the High Court registry here at 9.30am on Wednesday.
Wang claimed that Ngan, 78, was interested in cooperating with her on the project, which she initiated and planned and had led her to sign the agreement on Feb 26, 2007.
Under the agreement, Ngan was to pay her RM13mil as remuneration for her cooperation and award her with 25% of the shares in a company called CM Xi’an Qujiang Properties (M) Sdn Bhd.
The company was also named as a co-defendant in the case.
Ngan was also supposed to appoint Wang as a deputy manager or director in the company where she would be given administrative authority.
Wang claimed that the agreement required Ngan to pay her a compensation of RM1mil should he fail to meet the terms of the contract.
She is seeking an order to carry out the agreement, general damages and other costs. Wang was represented by lawyer Quek Ngee Meng.
There are four remedies for breach of contract: a) Damages b) Specific Performance c) Injunction d) Quantum Meruit
In this case, the remedy for the breach of contract is damages. RM13mil is the damages or compensation that required by the 49 year old businesswoman from China. She required the Malaysian business tycoon to pay her RM13mil for her efforts in a development project in Xi’an Qujiang, China.
Based on my understanding of the law of contract, as a general rule, performance of a contract must be exact and precise and should be accordance to with what the parties had promised. Section 38(1) of the Contracts Act 1950 provides that the parties to a contract must either perform or offer to perform their respective promises, unless such performance has been dispensed with by any law. In this case, Tan Sri Ngan did not perform his promises as stated in the agreement signed by both Ngan and Wang. Therefore, Wang appointed a lawyer to sue Ngan for the breach of contracts and seek for the compensation as promised in the agreement of RM13mil and other losses. This case is similar with the case of LIM YOH v. ASTANA STRATEGI (M) SDN. BHD. & ANOR[1998] 3 M.L.J 117, High Court.
Terms of contract can be in the form 'CONDITION' or 'WARRANTY' under section 12(1), Sale of Goods Act 1957. Terms of contract means the stipulation or things that between the two parties who involve in the contract.
CONDITION: is a stipulation which is essential to the main purpose of the contract, its breach leads to repudiation of contract. (Section 12(2), Sales of Goods Act 1957)
WARRANTY: is a stipulation which is collateral to the main purpose of the contract, its breach only leads to a claim for damages but not to a right to reject the goods and treat the contract as repudiated. (Section 12(3), Sales of Goods Act 1957)
Whether a stipulation is a condition or warranty depends in each case on the construction of the contract. The stipulation may be a condition, though called a warranty in the contract. (Section 12(4), Sale of Goods Act 1957)
However, who have the right to determine the ‘term of contract’? The court only has the right to determine the term of contract whether it is condition or warranty.
Based on the Sale of Goods Act 1957 (section 2), it defines the word 'goods' into two categories, which are a) every kind of movable property and b) goods may be either existing or future goods (s.6).
For the category of 'every kind of movable property', it includes growing crops, grass, stock and shares, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. However, movable property excludes the actionable claims, money and land.
For the goods may be either existing or future goods which under section 6, Sale of Goods act 1957. It stated that the existing goods are goods already owned or possessed by the seller, and may be either specified or agreed upon at the time a contract of sale is made. Besides, it stated that the specific goods means goods identified and agreed upon at the time a contract of sale is made. For example, if Kelvin agrees to buy John's car bearing the registration number WST 155, this is a contract for the sale of specific goods.
After defined the meaning of 'goods', now intro the nature of sale of goods contract. A contract of sale of goods is a contract whereby the seller transfer or agrees to transfer the property in good to the buyer for a price (s.4(1)). In other words, a sale occurs when the ownership or property in goods passes to the buyer. The differentiation between transfer and agrees to transfer is transfer the goods and ownership immediately or later. Seller transfers the property in good to the buyer for a price means it is happen immediately. In contrast, if seller agrees to transfer the property in good to the buyer for a price, it means that it do not happen immediately.
In this case, Salomon was a prosperous boot and shoe manufacturer. He ran the business as a sole trader under the style of 'A. Salomon & Co.'. Salomon was married and he had five children. All his children pestered him for a share in the business. Salomon then decided to incorporate his business as a limited liability company. He gave one share each to his wife and his five children and he himself took 20,001 shares. The business was then transferred to the company, and in consideration thereof debentures were issued to Salomon. But Salomon continued to run the business as before. The business floundered. Salomon was unable to salvage the company and the company was put into liquidation. There were enough assets to pay off the secured creditors including Salomon himself who was a debenture holder. But the unsecured creditors were left stranded. The liquidator sued Salomon.
The Court of Appeal held that he was liable to indemnify the company against the losses. However, the House of Lords reversed this decision and held that incorporation of a company created a separated person. The House of Lords also held that even though the business of the company was the same as before and the same person managed the business and with the same hands that received the profits, yet the company was not an agent or a trustee for the members. The House of Lords held the members were not liable in respect of the company's obligations. Opinion: In my opinion, based on the Companies Act 1965, the word 'company' means is a corporate body or corporation. A corporation is an artificial legal person that exists independently of the individuals who at any given time are the members of the corporate body.
Even though Salomon had decided to incorporate his business as a limited liability company, he is one of the members and who was a debenture holder as well for the company. Thus, Salomon is not liable to indemnify the company against the losses due to Salomon and the company were separate persons.
However, this case became the bench mark for many cases, such as Lee v. Lee's Air Farming Ltd [1960], Abdul Aziz bin Atan & Others v. Ladang Rengo Malay Estate [1985], and Macaura v. Northem Assurance Co. [1925].
A corporation shall be deemed to be a subsidiary of another corporation if
1. that other corporation (a) controls the composition of the board of directors of the first-mentioned corporation; (b) controls more than half of the voting power of the first-mentioned corporation;or (c) holds more than half of the issued share capital of the first-mentioned corporation.
2.the first0mentioned corporation is a subsidiary of any corporation which is that other corporation's subsidiary. (under section 5, Companies Act 1965)
A parent (holding) and its subsidiary company are two separate legal entities. For example, Genting Berhad (holding) v. Genting Plantations Berhad and Genting Singapore PLC (Genting Singapore.
Case: One day, Jay saw a banner hanging in front of her favorite cassette store outlet in Alamanda which reads: " BIG SALES! LATEST TOO PHAT'S ALBUM IS UP FOR GRABS WITH 50% DISCOUNT! LIMITED STOCK! HURRY, HURRY, HURRY!". After reading it, Jay immediately jumped in the outlet and said she wanted that album at the said discounted price. But to her disappointment, the shop owner said that the cassette is now sold at normal price. Can Jay sue the shop owner for breach of contract? Discuss according to Contracts Act 1950 and relevant decided cases(s).
Solution: From the banner hanging in front of the cassette store which reads:" BIG SALES! LATEST TOO PHAT'S ALBUM IS UP FOR GRABS WITH 50% DISCOUNT! LIMITED STOCK! HURRY, HURRY, HURRY!" is just the invitation to treat by the shop owner, NOT an offer. It is just an invitation to make an offer from shop owner. And also, it is a sort of preliminary negotiation to buy something. Due to it is just an invitation to treat(ITT), there is NO legally binding contract between Jay and the shop owner. Thus, Jay cannot sue the shop owner for breach of contract because there is not an agreement enforceable by law.
Relevant cases: 1) Pharmaceutical Society of Great Britain V. Boots Cash Chemist Fact: The defendant was prosecuted for selling drugs (poison) without the presence of a qualified pharmacist. The customer selected the drug and put in the basket and has not paid yet to the cashier.
Held: Displaying of medicine in the pharmacy is merely an invitation to treat and not offer. When the customers put the goods in the basket, they offer to but them and the sale will take place at the cashier's desk if the cashier accepts the price. 2) Fisher v. Bell (1961) Fact: The defendant displayed flick knives in his shop windows. He was then convicted of a criminal offence of offering such knives for sale.
Held: Display of any goods with a price tag on it in a ship window was not an offer but rather it was an invitation to treat.
Doctrine of Stare Decisis also known as doctrine of binding judicial precedent. It holds that judges are bound to follow the decision made by other judges before them in dealing with cases with similar facts. Bases on Wikipedia, it stated that stare decisis is the legal principle by which judges are obliged to obey the precedents established by prior decision. The words originare from Latin which means "Maintain what has been decided and do not alter that which has been established".
Stare decisis can divided into 2 categories which are Horizontal stare decisis and Vertical stare decisis. Horizontal stare decisis occurs when a judge is bound by decisions of earlier judges of similar or coordinate level. On the other hand, for the Vertical stare decisis occurs when a judge is bound by decisions of judges made at superior courts.
The advantages of the doctrine of Stare Decisis: Based on the WikiAnswers,it stated that the advantages are that there is a stability in law so that people know what is allowable and what is not. this helps them know what not to do in taking future actions. It also tends to promote a uniformity of law throughout the country. Different states are free to disagree among themselves as to what laws govern in their states, but since most court made law comes from common law England, many legal principles have the same roots. Courts of different states do try to make rulings in line with other states even though they do not have to.
Furthermore,efficiency is one of the advantages based on the WikiAnswers. It stated that as there is already a basis on which the judgment will be passed, a basic framework so to say, the judicial process becomes so much faster. There is certain efficiency in the process as compared to what the procedure would be like in comparison with a system that did not follow the precedent based system. Plus these decisions are based on a precedent and so have a stronger basis.
Also, flexibility is the advantage of the doctrine of Stare Decisis. A judge is bound to follow the decision made by other judges or by the historical cases before they dealing in the cases with similar facts.
The disadvantages of the doctrine of Stare Decisis: Based on WikiAnswers, it given the example in 1896 the US Supreme Court ruled that segregated public facilities was constitutional as long as they were equal. In 1956, the Supreme Court ruled that separate but equal facilities were inherently unequal and therefore unconstitutional. In 1956, if the Supreme Court had blindly followed the principle of stare decisis, it would have ruled that segregation was permissible.
Besides, the perpetuation of bad decisions is the advantage if the doctrine of Stare Decisis. There is because there is the drawback that once a decision has been made, if there is no change and the same decision is followed again, a bad decision will be perpetuated.
Need for records become a disadvantage. This is because the precedents are to be followed by all other courts or in many cases, lengthy, detailed records have to be maintained. And to make easy the accessing of these cases and previous decisions, uniform indexing methods have to be created and followed diligently.
Case 1:When driving his car home in Georgetown, Ryan called and talked with his wife through his mobile phone without the use of hands-free device. While talking, he lost control over his car and eventually hit a walking pedestrian.
a. Is Ryan liable under civil or criminal law?
Ryan is liable under criminal law.
Based on uslegal.com, Criminal law is the body of rules and statutes defining the offences against the community at large. It regulates how suspects are investigated, charged and tried. The law also provides the punishments for convicted offenders. This is also termed as Penal law. Based on Wikipedia, it stated that the Criminal punishment depending on theoffenseand jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. There are some archetypal crimes, like murder, but the acts that are forbidden are not wholly consistent between different criminal codes, and even within a particular code lines may be blurred as civil infractions may give rise also to criminal consequences. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties. And also, Ryan is liable under Law of Malaysia Act 333, Road Transport Act 1987, Section 42 which is Reckless & Dangerous Driving. Under this section, it stated that any person who drives a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and size of the road and the amount of traffic which is or might be expected to be on the road) is dangerous to the public shall be guilty of an offence and shall on conviction be liable to a fine not exceeding six thousand ringgit or to imprisonment for a term not exceeding three years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both.
b. Should this case go to court, what will be Ryan's right?
This case should go to court. And Ryan also can hire a lawyer and defense himself.
c. What should the pedestrian do to recover his injuries/loss?
The pedestrian can claim the compensation from Ryan or can claim from the fine that stated by the court.
Case 2: Geena runs an unregistered online investment portal from her home in KL where she managed to get people deposit money to her account.
It was discovered that the investment was a scam and she attempted to flee with the money, only to be arrested in the airport by immigration officers because she held a fake passport.
a. Determine Geena's liability: civil or criminal?
Geena is liable under both criminal and civil law. Civil law or private law occurs or disputes between private individuals such as, contract, tort, trusts, property or family. In this case, the private individual is the people of unregistered online investment portal. Due to Geena holding a fake passport and committing the crime by using computer, it already determine Geena is liable under crimial law.
b. What law(s) and statutes you think Geena has violated?
Under the Passports Act 1966, any person with intent to obtain for himself a passport, internal travel document, or an endorsement or visa on his passport, knowingly makes any false statement or produces any document which is to his knowledge false in any particular shall be guilty of an offence and shall, on conviction, be liable to a find not exceeding RM$10,000 or to imprisonment for a term not exceeding 5 years or to both.
In this case, Geena got a intention to obtain a fake passport for herself. Due to that, she offended the Passports Act 1966.
