NEMO DAT QUOD NON HABET

wow!!!!! oh no, am i speaking latin now!!!! lol don't freak out..... let me get you to the same page with me..... Cheers

Each time a conflict involving property arise, the first thing that has to be established is the ownership of the property in question and this is where those big heading words comes in, don't worry you'll get to know what they say soon, but for now be patient, atleast you know its something in relation to ownership.

Lets look at an interesting example:

A thief steals my bicycle, three days later he is arrested , hurray my bicyclee is back.....lalala lallalallaaaaahhhhhh.....ohhhhh wait a minute, unbelievable, oh no my bicycle is not there.......sob..sob...sob. unfortunately its too late he has sold it to an identified third party.

so here we are, can i get my bicycle back???????????

Yeah, here we goooo, back to those big words, and thanks to them or else i was never gonna get back what rightly belong to me. nemo dat quot non habet simply means nobody can give a better title than what he has himself. Happy now that we are speaking the same language, i hope so!!!!

So basically the thief was in possession of my bicycle, and that does not take the ownership from me, therefore my bicycle get back to me because he does not have the right to give something that does not belong to him. unfortunately for the buyer, his fate will depend on his innocence as to whether he knew how the property was obtained.

This rule is adopted in the old English SOGA 1957 section 27, a very popular case which is normally used in rulings of nemo dat rule is the case Jerome Vs Bentley & Co [1952]. The Jerome entrusted a stranger, Major Trentham, with a diamond ring to sell for ú550. 12 days later he sold the ring for ú175 to Bentley who bought in good faith thinking he was the owner. The court held that the Major effectively became a thief of the ring and that no property passed to the defendant.

TIP FOR THE DAY: SAVE THE EARTH, GO GREEN!!!!!

GOVERNMENT TAX REVENUE

Tax is the main contributor to each government's revenue, followed by other sectors such as tourism, exports etc

below is a look at the Malaysia government total revenues for the years 2005-2009, it can be clearly seen that taxes, more especially direct contributed higher percentage of the total revenue throughout the years.

Have a look at the 2 graph below, they are an addition to the above, showing the malaysia tax structure over 19 years as well as the federal government revenue since 1985. We can see that generally the total revenue has been increasing ever since, which is explained by the increase in taxes both direct and indirect over the years. so there is a positive relationship between tax earning and total federal government earnings

TAX EVASION- WHY IN MALAYSIA

Tax evasion is defined as an illegal act of deliberately not paying due taxes or paying less amount than one is supposed to pay. As i mentioned before evading tax is punishable by law.

The purpose of this post is not to narrate on this act but i just have been puzzled by people who commit this offence in Malaysia, i mean seriously, with the number of reliefs the Malaysian government put in place as incentives to encourage people to pay tax, i really do not see why anyone would try to evade taxation in Malaysia. There are so many personal reliefs such as books, spouse, child relief, personal computer and EPF contribution. With all this as a neutral person you would at times think the Malaysian government really doesnt wanna tax its citizen but because its the major contributor to its revenue they are left with no choice but to do it.

SEE FULL LIST OF THE RELIEFS HERE

If i was a tax payer i would really feel ashamed of myself if for once i found myself caught up with the law because i evaded tax given the incentives put before me by the government. Not only are there reliefs for taxpayers, they locals taxpayers are entitled to a few rebates and are also charged on progressive rates, which means the higher you earn the more you pay. And with all this at no way i would try to run away from paying tax. One other thing to note is how the government has not only come up with incentives to lower chargeable income but they have developed method through which people can pay tax conviniently without going through long processess.

Tax payers should look deeper than enriching the government when they pay taxes, they should know its the tax they pay that gives them developments and infrastructure the need. they should think of it as building their nation for the betterment of their future offsprings and their generations. With this i wish to say i hope Malaysia government can tighten up and bring all perpetrators of this law to book they is just no single excuse i can think of as to why the do this, unless of cos if they are not citizens, that will be a bit understandable but again no form of tax evasion is acceptable no matter how unfavourable the conditions are.

WHEN INSURANCE FAIL TO PAY

Three interesting cases I came across which i thought are worth sharing, where the car owner left the keys in the car, resulting in the car being stolen. All the cases were brought before justice and rulings we all in favor of the insurance company.

ENJOY AND HOPEFULLY YOU BECOME MORE CAREFUL NEXT TIME WITH YOUR CAR OR WHEN YOU BUY YOUR INSURANCE COVERAGE.

CASE 1

Miss L’s car was stolen from the driveway of her home while she was inside the house. She neither saw nor heard the theft. When she put in a claim to the firm, it asked her to send it her car keys. However, she was only able to produce the spare ignition key.

Taking this as evidence that the key had been in (or on) the car when it was stolen, the firm rejected Miss L’s claim. It said that by failing to ‘exercise reasonable care in safeguarding her car’ she had breached a general condition of her policy.

Miss L objected to this. She said that the key had definitely not been in the car when it was stolen. She had lost the key a month earlier and had been using the spare. She was adamant that she had not been ‘careless’, as the firm had suggested. After the firm rejected her complaint, she came to us.

The jury agreed with Miss L that she had not been ‘reckless because someone is reckless if they recognise a risk, but deliberately ‘court’ it. Miss L had not done this, so the firm was wrong to say that she had breached the ‘reasonable care’ condition.

However, the firm’s policy also contained a specific (and very comprehensive) clause that excluded claims for cars stolen when the keys were left in them. The firm had specifically highlighted this clause when it sold Miss L the policy. And as we were not satisfied with Miss L’s explanation that she had lost the original car key, we concluded on balance that it was likely that she had left the key in, or on, the car.

We were satisfied that the circumstances of this theft did fall within the scope of that exclusion. She could be said to have ‘left’ the keys in the car because she had gone into the house, and was too far from the car to be able to prevent it being stolen. In addition, the fact that the car was parked so close to the road meant it was relatively vulnerable to an opportunistic thief. We therefore rejected the complaint.

CASE 2

Mr A parked his car opposite a letterbox and jumped out to post a letter, leaving the key in the ignition. While he was crossing the road to reach the letterbox, someone stole his car.

Mr A was horrified when the firm rejected his subsequent claim on the grounds of its ‘keys in car’ exclusion clause. He said that the firm had never told him the policy included such a clause and, eventually, he complained to us.

By turning his back on the car and walking away from it, Mr A had fallen foul of the ‘keys in car’ clause in the policy. In legal terms, he had left the car ‘unattended’ – in other words he was not close enough to the car to make prevention of the theft likely, as established in Starfire Diamond Rings Ltd v Angel, (reported in 1962 in Volume 3 of the Lloyd’s Law Reports, page 217); and in Hayward v Norwich Union Insurance Ltd, (reported in 2001 in the Road Traffic Reports, page 530).

Mr A accepted that he had left the car unattended. But he claimed that none of the policy documents that the firm had sent him (such as the policy schedule and certificate) referred to the ‘keys in car’ exclusion. The firm had set out the exclusion in the policy booklet but had done nothing to draw Mr A’s attention to it when it sold him the policy, as it should have done in accordance with industry guidelines. We therefore felt it was fair and reasonable to assume that Mr A had been prejudiced by the firm’s failure to highlight the clause. If the firm had clearly referred to the clause on the policy certificate or schedule, Mr A might well have acted differently.

And we were satisfied that Mr A had not acted ‘recklessly’. Applying the test of ‘recklessness’ as set out in Sofi v Prudential Assurance (1993) – he had not even recognised that there was a risk, let alone deliberately courted it. We therefore required the firm to pay Mr A’s claim.

CASE 3

Mr H drove to the council-run tip to get rid of an old carpet. While he was disposing of the carpet, someone stole his car. He had left the keys in the ignition and, although he hadn’t walked far from the car, he did not hear or see anything suspicious. He only realised that his car was gone when he turned back towards where he had left it. The firm turned down Mr H’s claim because he had left his keys in the car. When it rejected his complaint about this, Mr H came to us.

The firm's decision not to pay the claim was based on CCTV footage that it obtained from the council. This showed Mr H walking away from his car with the carpet. It also appeared that he had left the car’s engine running.

We agreed that the firm had been correct in turning down the claim on the grounds of its ‘keys in car’ exclusion. Mr H had turned his back on the car after leaving it in a public place and he was completely oblivious to the theft until after it had happened. He had walked a fair way from his car, so he was unlikely to have been able to prevent the theft.

In this instance, Mr H had no excuse for not being aware of the policy exclusion. The firm had highlighted it very clearly on the policy certificate, a document that every motorist is required to have by law. We therefore rejected his complaint.

All case obtained from here

Were all the above decisions right - its a huge question mark. while in the last two cases it is clear that the was some form of ignorance by the plantiffs to the said clause, the first case is the one that raise eyebrows.... did the jury prove beyond reasonable doubt that the original keys were left in the car, i wouldn't say so because their conclusion was based more on logic than a thorough investigation. As such i feel Miss L did not get a fair trial, and by this decision i feel the jury had open doors to similiar cases where now even in genuine cases of lost keys insurance companies may end up not paying innocent victims their deserved compensation or claims.

INSURABLE INTEREST

Insurable interest is one of the basic requirements for all types of insurance coverage. According to the Malaysia law, this principle is defined in the insurance act(Act 553) part 7, section 152. Since the basic principle of insurance is to compensate the insured from any loss, insurable interest is used to nullify claims by people are not affected by certain losses. trying to make a claim in something that does not affect you can lead to moral hazard. a very popular case in relation to this is the blue eyed six case

In the late 1800's, in Lebanon County, Pennsylvania, there was an old man who looked like he was going to die very soon. So 6 men, who were unrelated to the old man and had no financial stake in his death, decided to make money by taking out life insurance on him, which they could do at that time. But the old man lived a lot longer that they expected—and the premiums were expensive. So they decided to murder him to collect the life insurance sooner

the case above is a clear indication of why we need insurable interest, it is clear that these men wanted to profit from the insurance coverage. They did not in any way have insurable interest but rather were motivated by their selfishness and greediness. The men were arrested and all of them sentenced to death for this barbaric act. As hence it is for scenarios like these that we need to have insurable interest.

A person has an "insurable interest" in something when loss or damage to it would cause that person to suffer a financial loss or certain other kinds of losses.

For example, if the ploughing land you own is damaged by storm, the value of your land has been reduced, and whether you re-plough it, its value have been lowered because the crops in it have been destroyed, if the crops grew with no damage you would have reaped the benefits sooner rather than later as hence you have suffered loss from the storm. By contrast, if the same happen to your neighbor's land, which you do not own you may feel sympathy for them and you may be emotionally upset, but you have not suffered any loss due to the storm, therefore you have an insurable interest in your own land, but not in you neighbors'.

For purposes of life insurance, everyone is considered to have an insurable interest in their own lives as well as the lives of their spouses and dependents and the insurable interest only needs to exist at the time the policy is purchased.. For property and casualty insurance, the insurable interest must exist both at the time the insurance is purchased and at the time a loss occurs.

FILE SHARING THROUGH PEER TO PEER NETWORKS

With the growth of technology and the world wide web, we have seen the emergence of so many P2P file sharing networks, with some individuals developing softwares and providing necessary equipments such as serves to promote this file sharing system. some of these sharing networks include Ares, BitTorrent, UTorrent, Transmission, Tomato, LimeWire and many others.

Having said that when does file sharing amount to copyright infringement, and who is to blame for if at all there is copyright violation associated with them. there are three parties involved here, the server-program provider, the uploader and the downloader? where do you fall?

Server-program developer - file sharing is not in anyway wrong, and providing facilities for such cannot be wrong as well. if there is anything it has more good to it, allowing hundreds of people to connect together and share a wealth of information, be it music video or publications. Many of these developers, do distance themselves from any materials put in their servers by putting a clause in the terms and conditions of usage, as well as normally writing few warnings in relation to copyright, yet they do little to monitor the contents. In simple they due to that clause they can not be held liable for any copyright information in their servers unless if it is proven that they deliberately allowed copyrighted materials in their servers.

Users - we have two sets of users here, the uploaders and the downloaders, uploaders put materials which they think or believe its worth sharing with others on these networks, while some of these materials are copyrighted others are not. Now here come a question-does uploading a copyrighted material which you obtained legitimately violation of copyright, in my view i think no. While normally buying these copyrighted CD'S, books, you agree to be bound by their terms and conditions of usage, that also becomes your property, why should it not be wrong to borrow someone a book you bought but wrong to put it in a file sharing network so they can see it without the trouble of coming to you house to collect it. isn't this some form of inconsistency. In short uploaders as well shall not be held liable for any form of sharing.

Downloaders- these are the people who use uploaded materials, and straight away i feel they are the ones who are to blame for copyright violation, downloaders put the materials there out of goodwill, so these group of people should just use is as per their needs and stop there rather than keep the file in their computers and redistributing them. A downloaded copyrighted material will never be your property as such how you use it should be limited, in short it is basically for you to view, nothing more.

In conclusion, while its difficult for me to condemn file sharing as i have benefited from it, i cannot ignore the great effects of it in crippling so many business, it is unfortunate scenario because as much as it has lead to the collapse of many business units and affected earning of upcoming stars, who end up giving up, i also think it is not wrong to share these copyrighted or so proclaimed intellectual materials because if allowed freely i see more harm than good towards society. Overall i am indifferent between this copyright and file sharing

CENSORSHIP

At a time when google is threatening to pull out of China on issues related to internet censorship, I thought it might be good to lay down my view on this hot topic. Want read more on the story you can simply google it, there are so many reports given which do vary on the facts sorrounding the threat but here is a link to one of the news reports on the issue, CLICK HERE TO READ

Malaysia has different acts which are aimed at censoring information as it is passed to the community or society, among them are

• FILM CENSORSHIP ACT 1952
• MCMC ( Malaysia Communication and Multimedia Act) 1992-regulates blog contents/website contents
• PPPA(Printing Pressess and Publication Act) - mainly for newspapers

While censorship might seem a good thing in the eyes of the initiators, there has been many cotroversies sorrounding this issue as most ordinary citizens feel

s it violates freedom of speech and expression, and most importantly denies them access to knowledge and wisdom.

The picture on the right says it all on why people feel they way they feel about censorship, because its sensored we will never know the truth.

and that exactly how i feel too about sensorship, isn't it time people are let to know everything and think for themselves, why should they allow us to hear and see what they want, and bury what they dont want.

do they doubt are decision making capabilities? why should a group of less than hundred or so people represents the mind of majority. Its too bad because i have more question than answers on censorship, is it wrong or good!!!!! totally wrong, in my personal capacity no form of sensorship is good no matter how tormenting or revealing the material is, as human being we must be let to use our senses and choose what we think is good and bad for us, God gave us our sense to use and no man has the right to undermine them, the best that can be done is guide and teach people to deal and accept that some things will always be with us no matter what, one way or the other the truth will always come out.

lets take for instance, you buy a movie ticket, catch the movie at the cinema, where most of the scenes has been cut because the are deemed sensitive, but then you come home, curious to know what the cut scenes were about, you go online, download the movie and at the end of the day you have uncovered the never meant to know.

so basically with these diverse world, where rules can apply in one scenario but be difficult in enforce in another, or where what is deemed sensitive in one country is not in another, censorship laws have become totally irrelevant and should maybe be abolished.

CHECK THIS VIDEO BELOW

CONFLICT OF INTEREST (COMMENT)

This is a comment on articles by blogger Amunixn

Case 1: Botswana Minister of Defence

While i definitely agree with you that to some extend logically and from a fair minded person there is clear conflict of interest, its unfortunate that our beloved country does not have a law on declaration of assets for people who holds such important position such as this particular case. As such conflict of interest have been left to company constitution, but when it comes to public assets it is going to always be difficult for us to put a line as to when really does an action amount to conflict of interest.

The laws of Botswana entitles any citizen or business who has capabilities to apply for government tenders, and just because a company belonging to his wife won the contracts does not mean this amounts to conflict of interest, unless only if we have solid prove that those tenders were awarded not on merits, which is difficult to prove. So this raises a question as to whether we are saying a relative cannot get a contract from the ministry you are holding because in public view it will amount to conflict of interest, i bet no because that will be denying them their entitlements as citizens or business operating in Botswana.

Seretse himself has come out and threatened to sue, on the basis of defamation of character, like you mentioned he does not see anything wrong with the linkage between his duty as a minister and awarding contracts to a company in which he was once a director.

NB: Those said contracts were awarded while he was a director, and as a company director, he needs to act in the best interest of the company. here is one interesting blog post on duties of company directors in Malaysia, take your time to read through( http://readinglaw.wordpress.com/category/company-law/), but at that time he was also a Minister of Defence meaning he had to act in the best interest of the public........... and this is where the conflict of interest lies

In his augment he says that he has long resigned from his position as the director of the company few months after he assumed office as the said Minister. This on its own takes the pressure of him because he is not directly in anyway related to the company but rather indirectly related through his wife. So this becomes a tricky scenario.

So to establishing whether conflict of interest does exist in this case a complicated issue, more also that awrding a contract is procedural and passes through many stages before being approved, the minister himself propably just signs after the analysis and recomendations by his surbodinates

COMPANY LAW (CASE COMMENT)

Macaura v Northern Assurance 1925 - lifting the veil of incorporation:

CASE BRIEF:Mr. Macaura owned an estate and some timber. He agreed to sell all the timber on the estate in return for the entire issued share capital of Irish Canadian Saw Mills Ltd. The timber, which amounted to almost the entire assets of the company, was then stored on the estate. On 6th February 1922 Macaura insured the timber in his own name. Two weeks later a fire destroyed all the timber on the estate. Mr. Macaura tried to claim under the insurance.

The Insurance Company refused to pay arguing that he had no insurable interest in the timber as the timer belonged to the company. In 1925 the issue arrived before the House of Lords who found that the timber belonged to the company and not to Mr. Macaura. Even though he owned all the shares in the company, Mr. Macaura had no insurable interest in the property of it.

In this case was the court decision justified?

Here is my view: While this case is normally referred to as a clear illustration of lifting the veil of ownership and corporate as a legal separate entity, it is somehow unfair to have dismissed Macura's claims based on these stand.

Macaura insured the timber as a personal property, at that time he owned it and never did he transfer its ownership, all that happened was value it in terms of shares and allow a company to use it, thereby making it his property, he had a limited liability as to the value of those shares/timber value as hence there was insuarable risk to him in the sense that anything that happened to the timber meant he was bound to lose, or his share value was going to decline, and it was this that the insurance company was bound to compensate him for.

It is for this that i think the court should have ruled in favour of Mr Macaura or atlist based on the facts of the case and some flaws which happened, with Mr Macaura failing to change the insurance to that of the company, they should have awarded him part of the damages.

COMPANY LAW (SUBSDIARY COMPANY)

A subsidiary is a company in which majority of its voting stock is owned by a holding company.

Normally this holding company is referred to as a parent company. For a company to consider itself as a parent company to another its should hold atleast 50% of its voting stocks

A company may have more than one voting stock subscribers but can only have one parent company

Example:

Company A has the following owners each with a number of voting right as listed

Company B-10%

Company C-35%

Company D-55%

So in this case the parent company for Company A is company D

But what about in a scenario whereby none of the holding companies owns more than 50% of the voting rights, who is considered the parent company??????

Example

Company ABC has the following owners each with a number of voting right as listed

Company BDE-40%

Company CEF-35%

Comapny DGM-25%

In this scenario although Company BDE holds majority of the voting right, it cannot consider itself a parent company, unless if it obtains more voting rights from the other two stockholders.

PETRONAS, a well known and one of the largest fuel supplier in Malaysia boast a handful of companies in which it owns more than 50% of the stake( figure estimates says more than 100). SEE Petronas SUBSIDIES

STREET BEGGARS: WHAT IS YOU VIEW, LEGALIZE OR NO?

Street begging at times i feel takes advantage of the less privileged. And some countries it has been linked to human trafficking. Some human trafficking syndicates promise people of better lives in other countries but in actual fact the people end up in the street begging, not for themselves though, for their captors. Moreover handicapped people are always put on the street by their guardians to beg. Which i feel is totally uncalled for. These people are supposed to care for them and love them. If they cant afford to take care for their basic needs why not ask for help from the authorities? Some even go to the extent of using them for personal gain. Not only that, street begging annoys some people. Not all people are compassionate therefore those in need should follow the correct channel where the compassionate could come and help them not disturb everyone.

Therefore this is common nuisance. least we forget that street begging encourages laziness. I have personally came across physically and mentally fit people, fit enough to take on a conventional job begging on the street. This upsets me to see people want to get money from people that worked hard for it the easy way. On the other hand, it is obvious that the bodies intended for the purpose of assisting those in need including the government cannot help everyone therefore it is sad that street begging might always be there and maybe essential to a certain point but as a personal view, i do not only think it should not be legalized, i think it should be abolished.

UNLWAFUL ASSEMBLY IN MALAYSIA

While the Malaysia penal code makes it an offence for a gathering of more than 5 people without police permission, there have been so many ebrows raced by this act. the penal code ACT 574 reads thus

Unlawful assembly

141. An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is—

(a) to overawe by criminal force, or show of criminal force, the Legislative or Executive Government of Malaysia or any State, or any public servant in the exercise of the lawful power of such public servant;

(b) to resist the execution of any law, or of any legal process; (c) to commit any mischief or criminal trespass, or other

offence;

(d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

The major issue which has left people, with no answers is the fact that the law is numb when it comes to peaceful rallies or protest. there has been so many cases where people show their desire to hold a protest, in the interest of the society so as to express their views and in many cases the police have refused to issue such permits and declared their wishes an illegal protest. One major example of such issue was the HINDRAF PROTEST, see video titled PROTEST.

the rally which started off peacefully and had promised to end so, took a major blow when the police came in with force in an attempt to end it, spraying water on the protester and using their power as the law enforcers to get the crowd dispersed, this caused a major havoc and around 300 people were arrested with some charged while others were discharged with caution.

In short basically i just want to say, nobody is perfect and as such a discrepancy have shown itself in this law and as hence maybe its time it is amended. this is because by not allowing peacefully protest it somehow denies peoples freedom of speech and expression. While there might be an argument that there is consideration and permits have been issued before for public protest, maybe the problem is not in the law but with the law enforces as they are not consistent in issuing such permit, as such instead of amending the laws it might be also a good move for the police to exercise some form of fairness in issuing their assembly permits to the public, yes of course the hindraf rally maybe was an exception considering the events leading to that but what about many other rallies where there were controversies and yet permits were issues!!!!!!!!

LAW OF CONTRACT- GIVE ADVICE

Chong and Wei went shopping and decided to shop at Super Supermarket. Wei looked at the goods which were on display and decided to purchase 3 face cream which were on offer. She took the bottles to counter where she paid for them. As they were leaving the supermarket, the cashier came up to them and told them that they have to return the goods. Advise Wei according to Contracts Act 1950 and relevant decided cases.

Comment

the above case is an example which can help us determine the key differences between, agreement, offer, acceptance and invitation to treat. however the important issue here will be to discuss whether Wei should return the goods or no!

firstly, goods on display is merely invitation to treat(e,g the case of Fisher v. Bell) and cannot amount to a binding contract, however by taking the goods to the counter with willingness to accept the stated price Wei was making an offer (Section 2(a) of the Contracts Act define offer as, “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence) to the shop through their cashier as hence the moment the cashier scans the goods and receives payment from Wei, there is acceptance ( Section 2(b) - ACCEPTANCE is when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted: a proposal, when accepted, becomes a promise) therefore an agreement has been reached as hence a legally binding contract exist between Wei and the shop based on terms and conditions of purchase

Based on the above scenario however, it is not clear why Wei was asked to return the goods, so for my analysis i will assume the shop assistant might have made a mistake in the price tag, or probably the offer price was no longer applicable as hence she wanted to get the goods and rescan with new price which most probably was higher. in this case Wei has the right to refuse to return the goods and can take action against the store for breach of contract. To support himself Wei can quote section 5 of the contact Act which reads thus "An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor or the proposer, but not afterwards." He can also have his Friend to testify or become his witness and in addition one important case which might be helpful due to similar facts shared in the sense that the revocation of offer was made after acceptance is the "Byrne v. Van Tienhoven ".

So in conclusion Wei can try to establish the facts of why he should return the goods, only if it is something that is against the agreement then he can consider but based strictly on the terms and conditions of sale as stated already above, but if its for other reasons that he deemed will be against his agreement with the shop then he can refuse to return the goods and sue the shop for their breach of loyalty and trust to the customer

CONTRACT LAW (CASE STUDY)

MAC manufactures and installs insulated window-frame units. Installation comprises about 15% of MAC’s total price for the units. Wong, a commercial builder, saw a MAC advertisement and mailed an order for 30 window frames, at $100 per frame, for a total order of $3000. He also wrote on his order, “Must have your guarantee of installation within 15 days due to construction deadlines.”

MAC immediately sent Wong an “Acknowledgment of Order,” listing the windows and price as per Wong’s order, and including a $200 shipping charge. Shipping costs are customarily borne by the buyer of window-frame units. At the bottom of the MAC form was printed the following: “Installation guaranteed within 60 days.” Also printed in bold and conspicuous type was the following: “All warranties of merchantability and fitness are hereby expressly disclaimed.” Finally, the form stated, “Contract of Sale Subject to Terms Contained Herein.”

MAC installed the windows 55 days after the order was placed and Wong incurred several delay-related expenses. MAC \later submitted a bill for the full amount shown on the “Acknowledgment of Order” form. Wong refused to pay the $200 shipping charges. He also discovered that because of a manufacturing defect, the glass in the windows did not fit snugly, permitting rain to leak through.

MAC sued Wong for the full price shown on the “Acknowledgment of Order” form. Wong counterclaimed against MAC for damages resulting from the delayed installation and unmerchantable quality of the windows.

How should the court rule on MAC’s and Wong’s actions? Discuss

MAC's advertisement is an invitation to treat (ITT) similiar case Partridge v. Crittenden

Wong's order is an offer made to MAC.~This is offer because it is not a requests for more information as Wong has placed order.- His order can be said 2 have pre-conditions that must be satisfied by MAC before accepting the offer. The offer is made subject to the condition and if its not satisfied, the offer may lapse (similiar case Financings Ltd v. Stimson)

On the fact, “Installation guaranteed within 60 days.” Wong only requested that installation be guaranteed within 15 days, this is one important point to the contract but can be considered as condition satisfied as 15 days falls within the 60 day period

MAC's "Acknowledgement of Order" = acceptance- see case Brogden v. Metropolitan Rail Co
Offer + acceptance +legality + consideration = contract; whereby both parties i.e. MAC and Wong will b bound by it. Therefore in this case there was a valid contract

Wong have to pay the $200 shipping fee as it is clearly stated in the contract. However as for the defect, Wong could sue MAC for breach of contract as the products was found to have defects. Wong is allowed to file a case against MAC as their product have caused loss/damage to him. this is an exemption clause where MAC seeking to exclude his liability in the event of any default.the exemption clause by MAC seeking to exclude his liability in case of any default can be argued up based on Unfair Contract Terms Act 1977 (UCTA) and may end up helping Mr Wong to win the suit.

FOOD SHOPLIFTING

Has this practice become so common now that although a serious offence people have come to put a blind eye on it OR is it a symptom to some form of odd behaviour?

I have watched every time i go into Tesco Hypermaket, the fruits section, u will see families, parents and kids, going through the shelfs where they are raisins and grapes, more especially grapes, everyone will be picking one as they pass, some dont even pick one they stay there eat until they are satisfied, and the very thing that is disturbing is that this practice affects all, nobody to lead other and tell them its wrong, i always wonder why are the shop assistants not confroting this people because their action amounts to shop lifting which is punishable by law.

but again, if it was you, how will you feel to be embrassed by such a petty thing, which you could have been able to avoid, what would you think of the shop assistant who brings you to justice, i mean remeber they will be simply doing their jobs, you cn imagine how much tesco lose in the grapes sale if every 10 000 of their customer per day are to pick a grape and eat for free

it is high time we people take responsibilities, by the time these shops start to seriously enforcing these shoplifting laws, it will be too late to repeant, lets stop this diabolic behaviour and show how moral and principled we are, !!!!!

McDONALDS SUED AGAIN OVER COFFEE!!!!

The famous 1994 coffee suit against McDonalds is back again, know about the case? if not read about it here http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restaurants. in what is supposed to be a similiar case, another woman in Portland is suing the fast food outlet again.......

According to the suit, “as it was being handed to her by an employee of the defendant, the plaintiff took the cup of coffee and the plastic top fell off and spilled very hot coffee on plaintiff’s upper right leg…”
She went into “nervous shock,” endured pain and has scarring. She seeks $7,182 for her pain and suffering, plus another $318 for lost wages and medical expenses.

TO READ MORE ON THE CASE: http://www.oregonlive.com/news/index.ssf/2010/02/portland_woman_sues_mcdonalds.html

ISSUE: SHOULD MCDONALDS BE LIABLE: Absolutely no from me!! y? although there are similarities as to the circumstaces leading to the accidents in both law suits, the critical factors do differ in both cases, more especially considering the coffee temperature, and number of changes that has occured over the years since 1994

one important issue is that the McDonald coffee cup has a big caution on it, which warns consumers to handle it with care as hence any accidents resulting from mishandling the container are not a liability to McDonalds unless only if there was a defect (which is not highlighted) or negliegence from the defendant staff, but in this case the cup was already in the plantiff's hands, the damaging truth reflected in the statement "the plaintiff took the cup of coffee and the plastic top fell..."

As people we should be responsible for our own safety, and be careful when being handed hot beverages, more especially in a busy outlet........ companies cannot continue to be held liable for lame issues such as this and guess what i will be following the outcomes of this case to the end..... SHOULD THIS WOMAN WIN THE SUIT, M CERTAINLY GOING FOR A CUP OF TEA AT MCDONALDS LOL!!!!!!!

WHAT ARE MY RIGHTS ONCE I HAVE PAID FOR THE GOODS!

Have you ever been in a scenario whereby the security sensors at the exit of a supermaket/store/shops suddenly went off when you go through them? do you know how embrassing that is more especially as most of the times that are false alarms.

it is this that makes me wonder can i sue the shop for damages to my images, because most of the times when that happens there will be people around watching and it really attracts more attention, people will be looking at you like thief thief, and you'lll be looking around with embrassment as if there could be a place where you can jst sneak in quickly and hide.

my basis for the suit are simply..... i believe that as soon as i pay for the goods and i get them packaged my contract with the shop is complete and as hence the goods are now my belongings and i have upper say on them. as hence i see these false alarms as pure accusations which to me amount to harrassment. DO I HAVE A VALID REASON????

i mean just imagine at a grocery store where most of the time you have security guard waiting there to check you trolley, and what annoys most is during busy times there will be a long line, for God sake i mean do i really hate to wait, or please spare me i have other things to do

So in simply terms will i be wrong if i just by pass all these checks and false alarms, does the store have the right to call the police and can i be charged if i refuse to have my trolley checked due to falls alarms.

ARE YOU A CRIMINAL????

have you ever wondered if you maybe committing a crime that you aren't aware of... have you at one point opened the Malaysian Penal Code and studied it.

I had a shock this morning and thought i should share this with all of you.......

Do you know that the Malaysian Peal code makes it an offence which is punishable by 20years imprisonment to perform oral sex!!! Huh just wondering how many criminals we have wondering in the streets, some aware while others unaware

Section 377 of the penal code:

377A. Carnal intercourse against the order of nature.

Any person who has sexual connection with another person by the introduction of the penis into the anus or mouth of the other person is said to commit carnal intercourse against the order of nature. Explanation

Penetration is sufficient to constitute the sexual connection necessary to the offence described in this section.

377B. Punishment for committing carnal intercourse against the order of nature.

Whoever voluntarily commits carnal intercourse against the order of nature shall be punished with imprisonment for a term which may extend to twenty years, and shall also be liable to whipping.

377C. Committing carnal intercourse against the order of nature without consent, etc.

Whoever voluntarily commits carnal intercourse against the order of nature on another person without the consent, or against the will, of the other person, or by putting other person in fear of death or hurt to the person or any other person, shall be punished with imprisonment for a term of not less than five years and not more than twenty years, and shall also be liable to whipping.

This have left me with unanswered questions...... how is this law enforced or implemented, are we without knowledge being spied, where do they draw the lines: what does privacy laws say about this law.

Anyways while i go and find more on this enjoy the article below, it just explains and analyse this issue much better tha i could have done. cheers and please be careful......

The other day, I asked a long-time friend, Soh Toh Mai (not her real name), whether she or her husband has ever committed a crime on Malaysian soil. A little mystified, my friend of many years nonetheless obliged me with her reply. “Of course not. Why do you ask?”

Ignoring her question, I pestered her further with my next question. “Have you ever done the “69″ position or performed fellatio on your husband?” (Fellatio: oral sex, giving head or blow job. “69″ position is simultaneous oral sex between two partners).

She went a bit red, but knowing my habit of asking her the most outrageous of questions, complied again in the affirmative.

“There you go. See, you have committed a crime! And if your husband had performed oral sex on you (cunnilingus), both of you have contravened the Malaysian Penal Code and if convicted of this crime, you are both liable to be imprisoned up to 20 years in addition to being whipped as well.”

This time, she stared wide-eyed at me with that look that says “Are you nuts? What in the world are you harping about?”

I proceeded to explain to her why she and her husband have all of a sudden become accidental criminals.

“Our Malaysian Penal Code makes it a crime to perform oral or anal sex, regardless of gender or consent. As long as the penis is inside the anus or mouth, it is considered a crime.”

My friend, who by now, sported an incredulous look, shot back, “Holy Molly, these are such common and natural acts that the whole world is doing them! If this is a crime, then everyone is guilty. Everyone is a criminal!” I know Soh is rather prone to exaggeration whenever she is on the brink of spewing out some volcanic ashes and rocks. Her face was turning red and she was heaving as she ranted.

“Ah, but under Malaysian criminal laws, these are considered unnatural acts – carnal intercourse against the order of nature,” I responded.

Calming down a bit, Soh thought for awhile, then said, “Whoever who created this law is a moron, perhaps someone who indulges in straight sex only via missionary position. Perhaps, someone who hails from a very conservative background. I pity him because he would never know the joy and ecstasy of having a blow job done on him. And he would never know how to satisfy his partner by giving her oral sex, or maybe he doesn’t care at all.”

Soh shook her head and continued, “Anyway, who is going to enforce this archaic law, which is as yesterday as Victorian chastity belts. Will there be a moral squad similar to the very active and occasionally bungling khalwat squad?” (Khalwat squad comprises of Muslim men who are recruited solely to spy on every Muslim or presumed Muslim couple’s sexual behaviour)

In a perversely enthusiastic mood now, Soh extrapolated further the scenario – “Members of the Moral or Sodomy Squad must be trained to recognize a real and pseudo or imagined penis. With a proliferation of dildoes around, one could easily get mistaken about the object that enters the anus or mouth. They should carry with them tools of their trade like tape measures, cameras, x-ray binoculars and storage containers specially for semen specimens. They also must be prepared to work graveyard hours as most sodomy activities are presumed to take place at night.”

“And if time and budget allow, they should also be trained to take DNA samples. This way, their evidence will hopefully be able to stand in court. I mean all their efforts would be wasted if it cannot stand in court, right? Why prosecute under the sodomy provisions at all if their evidences are not strong enough when challenged in court?”

I was going to say something about privacy concerns when Soh came up with another one of her bizarre extrapolations of the sodomy laws in Malaysia – “Since the law is about justice, I am sure the authorities do not want to be seen to victimize only some sodomites. The most obvious group in society who routinely practise sodomy must be gay men. So, they should launch Operasi Rainbow to round up all the practicing gay men in Malaysia. Punish them to the severest extent of the law in order to deter the rest of the potential sodomites in Malaysian society. ”

Soh had no time now to catch her breath. “And while they are at it, they should recruit more executioners for Malaysian prisons due to the spike in the number of prisoners requiring to be whipped. Build more prisons as well because more than half of the Malaysian population are expected to be incarcerated for offences under Section 377 of the Penal Code“.

“Install hidden cameras in prostitution dens or hotel rooms as well. That way, instead of putting the Sodomy Squad to work on the field with its attendant safety risks, half of them can just sit back and relax in front of TV monitors. It’s such a cushy job (in more ways than one) that I bet many men will queue up to join. There is also the potential side income as when couples caught sodomizing might want to settle “out of court”.

There will be many too who will protest the implementation of the sodomy laws, but according to Soh, this is the price we have to pay in order to clean up the country’s image especially in terms of sexual morality.

“Malaysian image took a severe beating when a former deputy prime minister was charged for sodomy and when a serving DPM was implicated in a murder involving a Mongolian beauty. It seems that in both cases, sodomy allegedly took place. Therefore, drastic measures are needed to show to the world that Malaysians are not a nation full of sodomites,” Soh said straight-faced. Yes, my friend Soh, is known for her double-speak.

source(http://www.elawyer.com.my/)