iNDIVIDUAL ASSIGNMENT TOTAL: 20 MARKS

(a) On the 1st August 2013, Mary received a letter from James offering to sell Mary his Samsung Tablet II for the sum of RM1000. In his letter, James stated that if he did not hear from Mary by letter or otherwise, within two(2) weeks, James would presume that Mary had accepted his offer. Mary did not reply. 3 marks
Under S.3 of the Civil Law Act 1956, common laws and rules of equity as administered on the 7th of April 1956 are applicable within Malaysian jurisdiction unless there are any other provisions outlined under Malaysian law. English law after 1956 are not binding, however where the Contracts Act 1950 have remained silent, Malaysian courts have been known to resort to English law. S.10 of the Contracts Act 1950 states that the ingredients of a contract are fourfolds: there must be free consent, parties must be competent to contract, there must be lawful consideration with a lawful object and are not hereby expressly declared to be void. Here, James has made an offer to Mary for the sale of a Samsung Tablet II. In the case of Preston Corp Sdn Bhd v Edward Leong [1982] 2 MLJ 22, the federal court proposed that an offer is an intimation of willingness by an offeror to enter into a legally binding contract. Its terms either expressly or impliedly must indicate that it is to become binding on the offeror as soon as it has been accepted by the offeree. This view seems to have been adopted from the philosophy propounded by Treitel in para 2-002 of the 13th edition of the Law of Contract, which the federal court has chosen to adopt. The crux of the issue here lies in Marys silence. Does silence amount to acceptance? This requires analysis upon S.3 of the Contracts Act 1950, which states acceptance of proposalsto be made by any act or omission of the party accepting. As a general rule, silence does not amount to acceptance, however there are exceptions. The High Court of Malaysia has applied an objective test to this rule in the case of Nai Yau Juu v Pasadec Corp Sdn Bhd [2005] 3 MLJ 431 and the case of Ayer Hitam Tin Dredging Malaysia Bhd v YC Chin Enterprise Sdn Bhd [1994] 2 MLJ 754, which states that the offeror may be bound if a reasonable man would believe that the offeror intends to be bound. Omission can be a form of acceptance, but there is no case law to directly illustrate this. Nevertheless, the proposer (offeror) cannot, without the promisees consent, put a condition in his proposal that the promisees silence shall amount to acceptance. In fact, silence on the part of the offeror cannot impute acceptance and no binding contract. Hence, the offeror cannot unilaterally impose the condition that the offerree is bound by the agreement upon his failure to act or accept the offer. This follows the English case of Felthouse v Bindley. As such. No clear acceptance has been made on the part of Mary and James may not impose upon Mary for the performance of the contract, and no binding contract existed.

(a)(ii) On the 2nd August 2013, Mary went out shopping at Giza Mega Mall and saw a designer handbag displayed in a shop window and marked at RM30. Mary was very excited and quickly went into the shop, took the handbag and went to the counter to pay for it. However, she was told by Rachel, the shop owner that the handbag had been tagged wrongly and the price of the handbag was actually RM3000. Mary was very angry with Rachel. Mary felt that since the designer handbag was 'offered' at RM30, Rachel should honour the 'offer'.. Mary did not want to buy the designer handbag anymore. 7 marks An invitation to treat is a statement that, unlike an offer, is not intended to be binding. The test for this is objective, and an invitation to treat merely suggests a willingness to negotiate on terms proposed. The general rule for a display of goods for sale in a shop is that it is an invitation to treat, and not an offer. This follows the famed case of Fisher v Bell [1961] 1 QB 394, where it was contended that a shopkeepers display in his shop window of flick knives was an offer for sale contrary to the Restriction of Offensive Weapons Act 1959. It was held that the display of an article in a shop window is merely an invitation to treat, and has been cited with approval in local jurisdiction within the case of Sulisen Sdn Bhd v Kerajaan Malaysia [2006] MLJ 341. As such, Rachel had the right to vary the terms of the price of the article being the designer handbag, as the display in the shop window was a mere invitation to treat, and no binding contract has been made.

(b) As she walked out of Giza MegaMall, Mary bumped into her friend Michael. Michael immediately apologised to Mary for not repaying a loan of RM2000 which was given to Michael by Mary seven(7) years ago. Michael promised to repay Mary the RM2000 if Mary came to his house the next day. 5 marks This scenario must first provoke an explanation of the intricacy that is inherently interwoven into the doctrine of consideration. The definition of consideration is expounded in the English case Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd by Lord Dunedin, which states that consideration is an act or forbearance of one party, or the promise thereof, [which] is the price for which the promise of the other is bought, and the promise thus given for value is enforceable. Consideration is a creature of law which takes two forms: that of an executory form: which is an exchange of promises to do something in the future, or an executed form: which is the act constituting consideration is completed. Currie v Misa further expands the doctrine of consideration, stating that a valuable consideration in the eye of the law may consist in either some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by another. Sufficiency of consideration is notable: consideration may be sufficient but need not be adequate. Sufficiency is considered within legal dimensions: it must be legally sufficient as opposed to manifestations of a physical value. Malaysian law differs from this: The inadequacy of the consideration is a fact which the court should take into account in considering whether or not one partys consent was freely given. Under S.26(C) of the Contracts Act 1950, an agreement made without consideration is void unless it is in writing and registered; if it is a promise made in writing and signed, the creditor might be able to enforce payment but for the law for the limitation of suits. The cases upon this matter within local jurisdiction is scarce, but reference may be made to the illustrations provided under the Act of Parliament. The situation of Mary and Michael emulates that of explanation (e) of the same section of the act, which states that A owes B RM 1,000, but the debt is barred by limitation. A signs a written promise to pay B RM 500 on account of the debt. This is a contract. Under the authority of S.6 of the Limitation Act 1953, the limitation period for contractual matters is 6 years.

As a result of this, Mary may not be able to enforce the recovery of the sum of RM 2,000 unless she solidifies Michaels promise to that of a written manifestation.

When she went home, Mary found her ex-husband Donny waiting for her. He immediately took out a knife and threatened to kill her if she did not sign a transfer of the house to him. Mary was so scared that she immediately signed the transfer. 5 marks ii. whether the transfer in favour of Donny is valid since she was forced to sign it. Duress is a form of pressure regarded as improper and developed by English common law. There are 3 principal forms of duress, and the form highlighted here is that of duress of persons. The effect of duress is that the innocent party may choose to either affirm or rescind the contract. As such, contracts made are valid until set aside. Duress to the person covers that of actual or threatened physical violence or unlawful constraint directed at contracting party or family members. The scenario referred to in Mary and Donny is similar to that of the English case Barton v Armstrong [1976] AC 104, wherein A threatened to kill B and his wife if B did not sign a deed. B went on to sign the deed based on 2 rationales: firstly, that he was threatened, and secondly, for sound commercial reasons. The significance of the case highlights that there must exist a causal link between duress and entry into contract, and it was held that duress needs only to be a cause and not the sole cause of entry into contract. It was held that it must first be identified that the pressure is one of which the law does not regard as legitimate, such as that of the threat of murder. The first step lies in that Mary must show that an illegitimate means of persuasion was used, and then establish the relationship between the illegitimate means used and the actions consequently taken. In light of the case of Barton v Armstrong, analysis into the Contracts Act 1950 must be taken. Duress has not been explicitly referred to within the act. However, coercion has been taken for a similar meaning within S.15 and S.73 of the Contracts Act 1950. S.15 states that Coercion is the committing, or threatening to commit any act forbidden by the Penal Code, or the unlawful detaining or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. In this case, Donnys threat to kill Mary would amount to extortion under S. 383 of the Penal Code, which states that whoever intentionally puts any person in fear of any injury to that person or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits extortion. As such, this satisfies the requirement laid out in S.15 of the Contracts Act 1950 and Mary, being the innocent party, will be allowed to either affirm or rescind the contract. Furthermore, Donny is required to return the house to her under the authority of S.73 of the Contracts Act 1950, which states that a person to whom money has been paid, or anything delivered,by mistake or under coercion, must repay or return it.