Wiki Tan: July 2011

Monday, July 18, 2011

Maria Ozawa Like to Gangbang

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CWDV-04 CATWALK POISON 04 波多野結衣

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Sunday, July 17, 2011

Maria Ozawa Lesbian At Pool Table

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EJ_13

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Acceptance of the goods

The buyer is bound to accept goods and to pay for them in accordance with the terms of the contract .
Under the provision of Section 42 , 'acceptance ' is defined by any of the following situations :

(i) When the buyer intimates to the seller his acceptance .
(ii) When the goods have been deliveted to the buyer , he does any act which is inconsistent with the ownership of the seller (e.g. reselling to a third party ) or
(iii) When , after the lapse of a reasonable time , the buyer retains the goods without intimating to the seller his rejection .

Delivery to carrier or wharfingers

Delivery of the goods to a carrier for the pupose of transmission to the buyer , or delivery of the goods to wharfinger for safe custody , is prima facie deemed to be a delivery of the goods to the buyer .
This constitutes performance by the seller of his obligation to deliver the goods and implies that the buyer's concurrent obligation to pay the price becomes operative .

S2M-028 Encore Vol.28 波多野結衣

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Delivery by instalments

Unless otherwise agreed , goods must be delivered at one and at the same time .
The buyer is not bound to accept delivery of goods by instalments .

Delivery of wrong quantity or wrong mix of goods

Duty of seller to deliver the correct quantity of goods and of the type specified without cintamination of other goods .
If the seller delivers to the buyer a quantity of goods less than he contracted to sell , the buyer may reject them . But id the buyer accepts them , he will have to pay for them at the contract rate .
If the seller delivers to the buyer a quantity of goods more than he contracted to sell , the buyer may accept the goods included in the contract and reject the rest , or he may reject the whole / If the buyer accepts the whole of the goods so delivered , he will have to pay for them at the contract rate .
If the seller delivers to the buyer goods that he contracted to sell muxed with goods of different description not included in the contract , the buyer may accept the goods which are in accordance with the contract and reject the rest , or he may reject the whole .

Performance of the contract

Delivery of the goods

- Delivery means 'voluntary transfer of possession from one person to another' ( section 2)
- Duty of seller to deliver the goods .
-Duty of buyer to accept and pay for the goods .
-

Place of delivery

-Unless otherwise agreed , goods sold are to be delivered at the place at which they are at the time of the sale .

Time of delivery

- Duty of seller to deliver the goods within a reasonable time .
-The buyer is liable for any loss occasioned by his neglect or refusal to take delivery of the goods within a reasonable time after the seller's request , including reasonable charge for the care and custody of the goods .

Carib-071211-749-HD-ALL

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Perishing of Goods

A contract is void if the subject matter of the contract no longer exists ( or is damaged ) at the time of the contract . This is a mutual mistake of the parties in respect of the contracted goods which have either perished or damaged to such extent that they no longer answer to description . Section 7 of SGA provides that :

"Where there is a contract for the sale of specific goods , the contract is void if the goods wihout the knowledge of the seller have , at the time when the contract was made , perished or become so damaged as no longer to answer to their description in the contract;'

An agreement to sell is void if the perishing or damage to the contracted goods occurs after the agreement has been entered into but before the ownership of the goods is passed to the buyer . This implies that the seller is not liable for non- delivery and the buyer is not liable to pay the price . The seller mst bear the loss and if the buyer has paid the price in advance , he can recover the price paid for a total failure of consideration . Section 8 of SGA provides that :

"Where there is an agreement to sell specific goods , and subsequently the goods , without any fault on the part of the seller or buyer , perish or become so damaged as no longer to answer to their description in the agreement , before the risk passes to the buyer , the agreement is thereby avoided ."

Sale by buyer in possession ( Section 30 (2))

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 .

Example :

Newtons of Wembley Ltd v. Williams ( 1965 ) 1 Q.B. 560

W sells a car to X who pays by cheque . X is given possession of the car but it is agreed that the property will not pass until the cheque is honoured . Subsequently , the cheque is dishonoured but X has sold the car to Y who buys it without the knowledge of the position . Later Y resells the car to Z . Now W tries to recover the car from Z .

It is held that X , the original buyer , was in possession with the consent of the owner , W . Therefore , X could pass a good title to Y , who in turn transferred it to Z . Hence , Z was entitled to keep the car .

Sale by a seller in possession after sale ( Section 30 (1)

If a seller resells to second buyer the goods sold by him previously to the first buyer , the second buyer will obtain a good title to the goods if he has received the goods in good faith and without notice to the previous sale . The first buyer will lose the title he can take legal action against the seller who would be liable to him .

Sale under a voidable title ( Section 29 )

Where the seller of goods has obtained possession thereof under a contract voidable under section 19 of the Contract 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 wihout notice of the seller's defect of title .

Example :

When x obtains goods from Y by coercion and sells them to Z who buys them innocently . At the time Z buys the goods , Y has not rescinded the contract made with X . Here , Z obtains good titles to the goods .

Transfer of Property in Goods ( Transfer of Title or Ownership )

Section 26 of SGA provides that unless otherwise agreed , goods will remain at the seller's risk until the title or ownership of the goods is transferred to the buyer . When the title is transferred to the buyer , the goods are at the buyer's risk irrespective of whether delivery of the goods has been made .
Section 27 of SGA provides that unless a buyer has the title , he cannot transfer title to another person whether by way of sale or a gift .
If goods are purchased from a person who is not the owner and who does not sell them under the owner;s authority , the buyer does not acquire a title even if he has paid value in good faith , e.g. goods are stolen and subsequently sold , the right of the original owner is retained .
Section 27 sets out the English rule 'nemo dat quod non habet' ( No one can give a better title than he has himself ).
The following are exceptions to the nemo dat quod non habet rule :

(i) Estoppel ( section 27 )
When ' the owner of the goods is by his conduct precluded from denying the seller's authority to sell . ' ( Section 27 ) Example : Y tells Z in front of X that Y wants to sell X's books to Z , and X nods his head and keeps quiet . If Y sells the books to Z , X cannot complain that Y has sold his books without his authority .
(ii) Sale by mercantile agent ( Section 27 )

When the seller is , with the consent of the owner , in possession of the goods or a document of title to the goods .

(iii) Sale by one of joint owners ( Section 28 )
When one of the several joint oweners of goods has the sole possession of them by permission of the co-owners .

privity of contract

The general rule is that the terms of a contract are only binding on the parties to such contract . Similarly , the terms in a contract of sale are only binding on the seller and the buyer . Therefore if a person becomes ill after drinking a bottle of beer which has been fouled by a decomposed snail in the bottle , he can sue the beer seller ( and not the beer manufacturer) for a breach of contract . However , he may sue the beer manufacturer for negligence under tort .

Sale by Sample

Samples are normally used in the sale of bulk goods e.g. rice , flour tiles , carpets .
Section 17(1) of SGA provides that :

"A contract of sale is a contract for sale by sample where there is a term in the contract express or implied to that effect . "

The following conditions are implied in a sale by sample :

(i) The bulk shall correspond with the sample in quality .
(ii) The buyer shall have a reasonable opportunity of comparing the bulk with the sample
(iii) The goods are free from any defect rendering them unmerchantable which would not be apparent on reasonable examination of the sample .

Terms implied into a contract for the sale of goods 2

Implied warranty as to quiet possession ( section 14 (b))
The buyer shall have and ejoy quiet possession of the goods . This warranty also covers against unlawful seizure of goods sold which have not been paid in full .
Implied warranty that the goods are free from any charge or encumbrance in favour of any third party not declared to the buyer ( section 14 (c) )
Implied condition that goods correspond with description ( section 15 )
Example : Ali ordered certain goods to be delivered to him . When the goods were shipped to Ali , he found that the quality of goods was inferior to those Ali had seen as samples of goods on display at a fair where he made the order . Ali was entitled to reject the goods and refuse to pay the seller .
Implied condition as to fitness for particular purpose ( section 16 (1a)) .

Example : bakri tells Samy , the shopkeeper dealing with fertilizer , that he wants to buy fertilizer for his mango trees . Samy would have breached an implied condition that the fertilizer would be fit for mango trees if Bakri were sold some flower fertilizers instead . However , if Bakri tells Samy that he wants to buy Treble Superphosphate ( 0-45-0 ) fetilizer , then there would be no implied condition as to its fitness for any particular purpose .

Implied condition as to merchantable quality ( section 16 -1b )

Goods sold are fit for the particular use and not defective for the purpose . For example , a pair of shoes whose heels came off on the third occasion was held unmerchantable in Davis Jones v.Willis ( 1934 ) 52 CLR 110 .

Terms implied into a contract for the sale of goods

Implied condition as to title ( section 14 (A)

A breach of this condition entitiles the buyer to repudiate the contract and recover the price paid in full regardless of whether he has used the goods .

Example : Mary sold a computer to Jane . A year later , Jane discovered that the computer actually belonged to Peter and that Mary was actuallly looking after Peter's possessions while he was overseas . Here , Jane can recover the price in full even she had used the computer for one year .

Formalities

A contract of sale may be made in writing , by word of mouth , partly in writing and partly by word of mouth , or may be implied from the conduct of the parties ( section 5 (2) .

Terms of the Contract
Contractual terms may be 'express' or implied' . Traditionally the terms of a contract are classified into :

Conditions- terms that are essential to the main purpose of the contract , the breach of which gives rise to a right to repudiate the contract ( section 12 (2) )
Warranties - terms that are collateral to the main purpose of the contract , the breach of which gives rise to the claim for damages but not the right to reject the goods and repudiate the contract . ( section 12 (3) .

How is the price ascertained ?

In a contract of sale , the price may be ascertained in the following ways ( section 9 ) :

(i) It may be fixed by the contract , e.g. Abu agrees to sell his car to Ahmad for Rm 30,000 .
(ii) It may be left to be fixed in a manner agreed in the contract ( e.g. by a third party ) ; or
(iii) it may be determined by the course of dealing between the parties
(iv) If none of the above methods is used , the buyer is bound to pay a reasonable price ( dependent on the circumstances of each particular case ) .

The parties may agree that the price is to fixed by the valuation of a third party and in that event , Section 10 (1) provides that if such third party 'cannot or does not make such valuation , the agreement is thereby avoided '.

Saturday, July 16, 2011

Maria Ozawa Ebody Fucking Hard

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Tokyo-Hot n0656-HD

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Friday, July 15, 2011

店長推薦作品夏目ミュウ~激淫Myu痴女最高傑作

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頂級美女-细腰爆乳還不斷揉胸胸騷勁十足

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極品小護士

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女性廁所偷拍小女孩野外性交

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Tokyo Hot n0620 谷村早苗

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黒木アリサ初裹解禁

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Root mean square value ( r.m.s )

Alternating current and voltage values fluctuate between zero and maximum potential , while direct current values remain steady .
In order to obtain the same values for A.C as are present in D.C , the r.m.s value is used .
The r.m.s. value of a current of 1A A.C gives the same heating effect as 1A D.C, and similar for A.C voltage .
The relationship of r.m.s. value to maximum value A.C is :
r.m.s. value / maximum value = 0.707
maximum value = r.m.s. value x 1.414

Example :
(A) Calculate the maximum value of A.C. voltage when the r.m.s value is 240 V
(B) Calculate the r.m.s value of an A.C current which has a maximum value of 30 A .

Advantages of single phase and three phase system

A three-phase service requires three high-voltage transmission lines and three transformers , while a single phase service requires only two high-voltage lines and only one transformer .
Three phase motors draw less current than single-phase motors of equal capacity , although the power required is generally about the same .
A three-phase motor with the same power capacity draws less current per wire , and therefore can use a less expensive , lighter-gauge wire .
Three-phase motors are simpler , lower in cost , more trouble -free , and more efficient over a wide range of loadings thant heir single-phase counterparts .

Three phase 4 wires system

In a three-phase service , the voltage reaches its macimum at a different time ine ach of the three wires .
First the voltage in one wire peaks , then that in the second , then that in the third , then again that in first and the cycle repeats .
In Malaysia , electricity generated and transmitted is of the three phase system .
In a four-wire , three-phase supply there are three line conductors carrying a live voltage of 240 each and one neutral return conductor .
The voltage between any one of the line conductors and the neutral will provide a single-phase voltage of 240V.

Single Phase 2 wires system

Single-phase alternating current is graphically represented as a sine wave
At 50Hz frequency , the voltafe in each wire is positive and negative 50 times each second and 100 times no voltage at all in the wire .
The voltage is never constant , but is always changing .
In a 240 volts service , the maximum voltage is about 340 volts , but the average amount is 240 volts and hence that is the effective voltage .
Because the fluctuation occurs fast enough , there is no apprarent nterruption in the output of electrical equipment .

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Common types of cold water supply fittings .

Valve ( Globe , valve , stop valve , gate valve , Ball valve ) - a fitting with adjustable opening for controlling of water flow rate in the water plumbing .
Ball valve in water storage tank :

- Ball valve is used to supply water to storage and flushing cisterns and to automatically shut off supply when the corract water level has been reached .
-The valve is operates b a float which allows the valve to be fully ipen when it is in the lower position .
-As the water level rises , the floats also raise which gradually closes the valve and shitts off the supply of water .

Tap ( Bib tap , Pillar tap ) - a valve for controolling the release of water supply to bathtubs and sinks .
Joints , Tee , Elbow - the components of water plumbing for turning and joining of water pipes .

The common cold water supply pipe sizes ( diameter ) are :

12mm , 15mm , 20mm , 25mm , 32mm , 40mm , 50mm , 63mm , 75mm , 89 mm , 100 mm , 125mm , 150mm , 200mm

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Factors to be considered when selecting water pipe materials :

Working and test pressures , including surge pressure
Strength of pipe to withstand designed internal and external loads
Durability of the pipe .
Suitability and workability for laying and operating requirements .
Capital , iperation and maintenance costs
Extent of possible leakage .

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Types of cold water pipe materials

Cast iron pipe ( C.L ) - strong but brittle . Usually offer long service life .
Mild steel pipe ( M.S) - strong and can be produced to various length . Widely Used .
High Density Polyethylene pipe (HDPE ) - Flexible and good corrosion resistance .
Unplasticised Polyvinyl Chloride pipe ( UPVC ) - Semi rigid . Easy to cut and joint .
Glassfibre Reinforced Plastics pipe ( GRP ) - Easily deformed . Not widely used .
Stainless Steel pipe ( S.S) - Strong and good corrosion resistance . Suitable for underground pipe .
Acrylonitrile BUtadiene Styrene (ABS) - Strong and has excellent resistance to breaking , scratching , chipping and wear .

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KG-027 Kamikaze Girls Vol.27 一色あずさ

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Example 1

E-4-1 . Determine the design flow rate for a cold water distributing pipe supplying 10 W.C.s and 10 wash basins in a school toilet .

Thursday, July 14, 2011

Plumbing and Pipe materials

Loading Unit

The probable maximum demand of each sanitary appliance like W.C., Basins etc are estimated based on rate of water delivery , usage time and simultaneous demand .
The estimates are expressed in loading unit rating .

Indirect pumping from the main

The high-rise building will be divided into two zones : lower zone and upper zone ,each zone will be equipped with storage cistern .
The lower zone position must be determined based on head pressure reading from the main , so that water sypply from the main can reach to the storage cistern without the aid of boaster pump .
The upper zone position where head pressure of the main is not enough , a pumping system is installed so that water can reach the storage cistern on the upper zone .
A break cistern ( suction tank ) is installed between the supply main and the pumping unit to serve as pumping reservoir and prevent lowering the pressure on the supply main .
This system is widely used in high - rise buildings of Malaysia .

Direct pumping from the main

The high-rise building will be divided into two zones : lower zone and upper zone .
Each zone will be equipped with storage cistern .
The lower zone position must be determined based on head pressure reading from the main , so that water supplu from the main can reach to the storage cisternw ithout the aid of boaster pump
The upper zone position where head pressure of the main is not enough , a pumping system is installed so that water can read the storage cistern on the upper zone .
The disadvantage of this method is that if the building is large the amount of water pumped from the main may cause a serious drop in pressure in other building supplied from the same main .
Thus this system is seldom approved by the authorities .
The method does however save the cost of break cistern , space inside building and costs .

COld water Supply System In High Rise Building .

For high-rise buildings or for buildings constructed on high ground where the pressure is low , it is necessary to pump the water from inside the building .
The pumping sstem can be of
- Direct pumping from the main
Indirect pumping from the main

The advantages of indirect cold water supply

Large capacity storage cistern provides a reserve of water during the failure of the mains supply .
The water pressure on the taps supplied from the cistern is reduced , which minimize noise and wear on the taps .
Fittings supplied with water from the cistern are prevented from causing contamination of the drinking water by back siphonage .

The advantage of direct cold water supply

Smaller cold water cistern
Less pipework making it cheaper to install
Drinking water available at all wash basin

Indirect water supply system

In this system , the water from the main is supplied first to a cold-water storage cistern then only draws out to the other fittings .
All the sanitary fittings , except drinking water draw-offs at kitchen sinks are supplied indirectly from this cold-water storage cistern .
The drinking water sink in kitchen or pantry is always connected to rising main to ensure safe drinking water supply because the rising main is connected to the main water authority supply , furhtermore cistern stored water could also be contaiminated . '
For design purpose , the capacity of the storage cistern can be estimated from the guidelines given by the authorities for various types of buildings .

Direct water supply system

When large high-level reservoirs provide a good mains supply and pressure , it is possible to use direct water supply system in low rise building such as double storey terrace house .
In this system all sanitary fittings are supplied with cold water direct from the main , and a cold -water feed cistern is required only to feed the hot -water storage cylinder if necessary .

Cold water supply system in low rise building

Cold water system in low rise building can be of :
- direct water sypply system
-Indirect water supply system

External water distribution system

Minimum head ( pressure ) need to be provided to ensure adequate water pressure to raise water to the top of building .
Head can be provided by siting service reservoirs are suitable height above the building being served
Building higher than the head available need to provide pumping system
A water distribution system may be classified into three types :
Gravity system
Direct pumped system
Gravity and pumped combination system

The choce of type of distribution system depends on :
- Topography
-Distribution area
- Location
-Site elevation

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aSource of water and External Water Distribution SYstem

Surface of water
Surface source - Lakes , streams , rivers , reservoirs
Underground sources - shallow wells , deep wells , springs
Water used must be :

Colourless
Free from harmful bacteria
Free from small suspended matter

Water Supply AUthorities , water supply Act and Regulations

Cold water supplies are from different authorities according to states in Malaysia ( SYABAS-Selangor , JBAS - N.Sembilan ,PBA - P.Pinang etc )
Act and regulations to be used in laying of water pipes :

-Street , Drainage and BUilding act 1974
-JKR water supply system - vol 13
-UBBL 1984
-Local water supply authorities ' regulation

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Illustrations

A proposes , by letter , to sell a house to B at a certain price . The communication of the proposal is complete when B receives the letter .
B accepts A's proposal by a letter sent by post . The communication of the acceptance is complete - as against A , when the letter is posted ; as against B , when the letter is received by A .
A revokes his proposal by telegram . The revocation is complete as against A when the telegram is despatched . It is complete as against B when B receives it .
B revokes his acceptance by telegram . B's revocation is complete as against B when the telegram is despatched , and as against A when it reaches him

Communication , when complete

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made .
The communication of an acceptance is complete - (a) as against the proposer , when it is put in a course of transmission to him , so as to be out of the power of the acceptor , and (B) As against the acceptor , when it comes to the knowledge of the proposer .
The communication of a revocation is complete - (a) as against the person who makes it , when it is put into a course of transmission to the person to whom it is made , so as to be out of the power of the person who makes it ; and (b) as against the person to whom it is made , when it comes to his knowledge .

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Communication , acceptance and revocation or proposals

The communication of proposals , the acceptance of proposals , and the revocation of proposals and acceptances , respectively , are deemed to be made by any act or omission of the party proposing , accepting , or revoking , by which he intends to communicate the proposal , acceptance , or revocation , or which has the effect of communicating it .

Interpretation

In this Act the following words and expressions are used in the following senses , unless a contrary intention appears from the context :
(A) 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, he is said to make a proposal .

(B) When the person to whom the proposal is amde signifies his assent thereto , the proposal is said to be accepted : a proposal , when accepted , becomes a promise .

(C) the person making the proposal is called the " promisor " and the person accepting the proposal is called the "promisee"

(D) When , at the desire of the promisor , the promisee or any other person has done or abstained from doing , or does or abstains from doing , or promises to do or to abstain from doing , something , such act or abstinence or promise is called a consideration for the promise .
(E) Every promise and every set of promises , forming the consideration for each other , is an agreement .

(F) Promises which form the consideration or part of the consideration for each other are called reciprocal promises .

(G) An agreement not enforceable by law is said to be void .

(H) An agreement enforceable by law is a contract .

(I) An agreement which is enforceable by law at the option of one or more of the parties thereto , but not at the option of the other or oters , is a voidable contract ; and

(j) A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable .

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Monday, July 11, 2011

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Sunday, July 10, 2011

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Saturday, July 9, 2011

Sale of goods

Sale of goods in Peninsular Malaysia is governed by the Sale of Goods Act 1957 . Sabah and Sarawak adopt principles of English law relating to the sale of goods .

The contract of sale
A contract of sale of goods is defined in Section 4(1) of the sales of Goods Act (SGA ) as follows :

"A contract of sale of goods is a contract whereby the seller transfer or agrees to transfer the property in goods to the buyer for a price . There may be a contract of sale between one part-owner and another . "

The act doesn not apply if the consideration is goods alone ( exchange of goods ) and not money . However , if the consideration is partly the delivery of goods and partly money , the contract may be one of sale . The essential element is the application of a monetary value to the goods so traded .

Discharge of a contract Revision Question

1. Ahmad wants to travel to Sydney to make a business deal worth Rm 100,000 . A ship company contracts with Ahmad to convey him from Port Klang to Sydney . The ship company promises to sail on 29th June , and Ahmad pays him Rm1000 being the deposit which is one-half of his passage money . Unfortunately , the ship does not sail on 29th June . As a result , Ahmad is detained at Port Klang for two nights , and he has to spend Rm200 per night on accommodation expenses during the two nights so that he can proceed to Sydney in the next available ship owned by another company . The second ship company charges him higher passage money , which is Rm 2500 . When Ahmad arrives in Sydney , he has missed the business deal . Now Ahmad wants to sue the first ship company for all his losses . What is Ahmad's legal position ?

ANswer:
The first ship company is liable to compensate Ahmad for the following damage
(i) His deposit Rm 1000 , with interest
(ii) The accommodation expenses , Rm200 x 2 =Rm 400
(iii) The excess of passage money paid for the second ship over the first , RM2500- Rm 2000 =Rm 500

Under section 74 (2) of the Contract Act 1950 , compensation is not to be given for any remote and indirect loss or damage sustained as a result of the breach . THerefore Ahmad will not be able to claim the Rm100,000 as loss of profit .

Injunction

A court order instructing a defendant not to commit some act ( or , less often , to commit some act )
There are three types of injunctions:
(i) Prohibitory - to prevent someone from doing something which he ordinarily has a right to do
Mandatory - to compel someone to do something which he ordinarily has no obligation to do
For a specific purpose (e.g. to enter into a defendant's premises to search and seize articles with relevance to the case such as 'private' copies of cassettes in a case of a breach of copyright )
Interlocutory injunction is granted at the discretion of the court to preserve the status quo pending the resolution of a legal action .
Example : if X contracts with Y to sing for 12 months at Y's theatre and not to sing elsewhere (within this period ) , Y cannot obtain specific performance of the contract to sing , but he may able to secure and injunction to restrain X from singing at any other place of public entertainment .

Specific Performance

A court order directing that the contract shall be performed specifically according to its terms .
Section 11 (1) of the Specific Relief Act 1950 provides that specific performance may be granted by the court in the following circumstances :

(i) When an act agreed to be done is in the performance , wholly or partly , of a trust .

Example : X holds certain stock in trust for Y . X wrongfully disposes the stock . The law creates an obligation on X to restore the same quantity of stock to Y , and Y may enforce specific performance of this obligation .

(ii) When there exists no standard for ascertaining the actual damage caused by the non-performance of the act afreed to be done .

Example : X agrees to buy , and Y agrees to sell , a picture by a dead painter and two rare China vases . X may compel Y specifically to perform this contract for there is no standard for ascertaining the actual damage which would be caused by its non-performance .

Remedies for Breach

When a party is in breach of contract , the other party - the injured party ( or innocent party ) , may claim one or more of the following remedies :

(A) Damages

A remedy providing money compensation for a civil wrong with the aim to restore the injured party to the position he would have enjoyed had the contract been performed as agreed .
General rules :
-The injured party is entitled to damages arising naturally i.e. according to the usual course of things resulting from the breach
-If the injured party claims special damages for any loss sustained , he must show that they are such that the other party knew , at the time of making the contract , that the special loss is likely to results from the breach , but
Such compensation is not to be given for any remote and indirect loss or damage sustained as a result of the breach .

Discharge By Breach

The promisor of a contract is said to have breached the contract if he fails to perform his obligations or to tender performance . THis will entitle the innocent party to take appropriate action which may include repudiation .
Section 40 of the Contracts Act 1950 provides that :

"When a party to a contract has refused to perform , or disabled himself from performing , his promise in it entirety , the promisee may put an end to the contract , unless he has signified , by words or conduct , his acquiescence in its continuance."

Discharge by Frustration

A contract is frustrated when there is a change in the circumstances which renders the contract legally or physically impossible of performance .
Section 57 (2) of the Contracts Act 1950 provides that :

" A contract to do an act which , after the contract is made , becomes impossible , or by reason of some event which the promisor could not prevent , unlawful , becomes void when the act becomes impossible or unlawful . "

Discharge by Agreement

A contract may be discharged by agreement or consent of all parties to the contract , expressed or implied .
Section 63 of the Contracts Act 1950 provides that :

If the parties to a contract agree to substitute a new contract for it , or to rescind or alter it , the original contract need not be performed . "

Example 1 :

X owes money to Y under a contract . Subsequently , it is agreed between X, Y and Z that Y shall henceforth accept Z as his debtor , instead of X . The old debt of X to Y is at end , and the new debt from Z to Y has been contracted .

Discharge by Performance

The usual method for the discharge of a contract .
Parties to a contract are bound by obligations to perform ( or offer to perform ) their respective promises , unless the performance is dispensed with or excused under the law . ( Refer to Performance of Contract in Lecture 4 ) .
Generally , performance must be strictly in accordance with the terms of the contract unless the parties have agreed otherwise .

Performance of reciprocal promises

Section 52 of the Contracts Act 1950 provides that :
"When a contract consists of reciprocal promises to be simultaneously performed , no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. "

Example :
X and Y contract that x shall deliver goods to Y to be paid for by Y on delivery .

Here , X need not deliver the goods unless Y is ready and willing to pay for the goods on delivery . Y need not pay for the goods unless X is ready and willing to deliver them on payment .

Illustration

X contracts to build a house for Y in consideration of a sum of Rm500,000 which is to be paid in two stages as the works progress. ( Formation of contract ) .
After X and Y enter into the contract , Y discovers that X is not a building contractor registered with CIDB which X has claimed to be prior to entering into the contract . This is fraud in X . Therefore the contract is voidable at the option of Y .
Despite Y knows that X is not a registered building contractor , he asks X to proceed with the building works . (Performance of contract ) .

Situatuin 1

X completes the entire building works satisfactoruly and Y pays X the sum of Rm500,000 . The contract is discharged by performance .

Situation 2
When X has executed half of the works , Y decides to terminate X and ask Contractor Z to continue with the works . Y pays X Rm 250,000 for the work done and X accepts it . The contract is discharged by agreement .

Situation 3
When x has executed part of the work , Y and his family die in a plane crash . The contract is discharged by frustration ( impossiblity of performance ) .

Situation 4.

When x has executed half of the works, Y refuses to pay him the first Rm 250,000. As a result , X ceases work and sues Y fr the breach of contract . The contract is discharged by breach .

Law of Contract - discharge of a contract

Discharge of a Contract

A contract is said to be discharged when it is terminated and the contracting parties are free from further obligations arising from it .
A contract may be discharged by any one of the following ways ( as shown on the flow chart below ) :
(i) Discharge by performance
(ii) Discharge by agreement
(iii) Discharge by frustration
(iv) Discharge by breach

Revision Question lecture 4 void and voidable contract

1. X agrees to sell his bungalow to Y for Rm 1 . Discuss whether the agreement is valid , void or voidable .

2. X sells to Y a car which X knows to have a faulty engine . X says nothing to Y about the faulty engine . Y buys the car and later he discovers that the engine is faulty . Can Y sue X ? Advise Y .

Outline Answer .

1. If the consent of the promisor is freely given , then the agreement is a valid contract .

Under the provision of Section 26 of the Contract Act 1950 , an agreement is not void merely because the consideration is inadequate . However , the inadequacy of the consideration may be taken into account by the court in determining the question whether the promisor has given a free consent .

Section 19 of the Act provides that if consent to an agreement is caused by coercion , fraud or misrepresentation , the agreement is a contract voidable at the option of the party whose consent was so caused .

2) Y's claim against x will not be successful as the contract is not voidable .
Under the provision of Section 17 of the Contract Act 1950 , mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud , unless the circumstances of the case are such that , regard being had to them , it is the duty of the person keeping silence to speak ,or unless his silence is , in itself , equivaalent to speech .

Under the provision of Section 23 of the Contracts Act 1950 , a contract is not voidable merely because it was caused by one of the parties to it being under a mistake as to a matter of fact .

In this case , X is not bound to inform Y about the faulty car engine . It is Y's own mistake as he did not ask X about the condition of the engine before buying the car .

Obligation of person who has received advantage under void agreement or contract that becomes void

Section 66 of the Contracts Act 1950 provides that :

" When an agreement is discovered to be void , or when a contract becomes void , any person who has received any advantage under the afreement or contract is bound to restore it , or to make compensation for it , to the person from whom he received it . "

X pays Y $1000 in consideration of Y's promising to marry Z, X's daughter . Z is dead at the time of the promise . The agreement is void , but Y must repay X the $1000.

Example 2
X contracts with Y to deliver to him 250 gantangs of rice before the 1st of May . X deliver 130 gantangs only before that day , and none later . Y retains the 130 gantangs after the 1st of May . Y is bound to pay x for the 130 gantangs.

Example 3
X , a singer , contract with Y , the manager of a theatre , to sing at his theatre for two nights in every week during the next two months , and Y engages to pay ber $100 for each night of performance . On the sixth night , X wilfully absents herself from the theatre , and Y , in consequence , rescinds the contract . Y must pay X for the five nights on which she had sung .

Example 4

X contracts to sing for Y at a concert for $1000 , whch are paid in advance . X is too ill to sing . X is not bound to make compensation to Y for the loss of profits which Y would have made if X had been able to sing , but X must refund to Y the $1000 paid in advance .

Promisee may dispense with or remit performance of promise 2

X ownes Y $1000 . X pays to Y , and Y accepts , in satisfaction of the whole debt , $500 paid at the time and place at which the $1000 were payable . The whole debt is discharged .

Promisee may dispense with or remit performance of promise

Section 64 of the Contracts Act 1950 provides that :

" Promisee may dispense with or remit , wholly or in part , the performance of the promise made to him , or may extend the time for such performance , or may accept instead of it any satisfaction which he thinks fit."

Example 1 :
X promises to paint a picture for Y . Y afterwards forbids him to do so . X is no longer bound to perform the promise .

Performance of Contract

The parties to a contract must perform their respective promises , unless the performance is dispensed with or excused under this act m ir if any other law . ( Section 38 1)
Promises bind the representatives of the promisor in case of the death of the promisor before performance , unless a contrary intention appears from the contract . ( Section 38 ) (2)
Example 1:
X Promises to deliver goods to Y on a certain day on payment of $1000 . X dies before that day . X's representatives are bound to deliver the goods to Y , and Y is bound to pay the $1000 to X's representatives .

Example 2
X promises to paint a picture for Y by a Certain day , at a certain price . X dies before that day . The contract cannot be enforced either by X's representatives or by Y .

Free consent

Free consent is the basis of a contractual relationship
Contracts Act 1950 provides that :

" All agreements are contracts if they are made by the free consent of parties competent to contract , for a lawful consideration and with a lawful object ,a nd are not hereby expressly declared to be void . " ( Section 10 1) /

"Two or more person are said to consent when they agree upon the same thing in the same sense . ( Section 13 )

Consent is said to be free when it is not caused by coercion , undue influence , fraud , musrepresentation or mistake (refer to notes on Lecture 2 ) .

Voidable Contract

Section 2(i) of the Contracts Act 1950 provides that :
" An agreement which is enforceable by law at the option of one or more of the parties thereto , but not at the option of the other or others, is a voidable contract."
Therefore a voidable contract is valid and binding until the party entitled to avoid it opts to do so .
Section 19 (1) of the Contracts Act 1950 provides that :
"When consent to an agreement is caused by coercion , fraud or misrepresentation , the afreement is a contract voidable at the option of the party whose consent was so caused ."

Example :

X, intending to deceive Y , falsely represents that the floor of his house is finished with high-quality marble , and thereby induces Y to buy his house . Y accepts X's offer . The contract is voidable at the option of Y .

Subsequently Y buys the house despite he discover that the floor finish is actually of ceramic tiles . Then the contract is not voidable on account of X's misrepresentation .

Section 19(2) of the Contracts Act 1950 provides that :

" A party to a contract , whose consent was caused by fraud or misrepresentation , may , if he thinks fit , insist that the contract shall be performed , and that he shall be put in the position in which he would have been if the representations made had been true."

Example :
(Based on the above example ) Before Y buys the house , he may insist C to change the ceramic tiles to the high-quality marble which X has represented in his offer .

A contract is not voidable merely because it was caused by one of the parties to ti being under a mistake as to matter of fact ( Section 23 )

Friday, July 8, 2011

Void and voidable contacts

What is void ?
Voids means not valid or legally binding .

Note : void has the same meaning as null and void

Void contract / Void agreement

An agreeement ( or contract ) is void if :

(i) both parties to the agreement are mistaken to a matter of fact which is essential to the agreement , or mistaken to a matter of law which is not in force in Malaysia , but is essential to the agreement .
(ii) the consideration or object of the agreement is unlawful , i.e:

it is forbidden by law
it is of such nature that , if promised , it would defeat any law .
it is fraudulent
it involes or implies injury to the person or property of another
the court regards it as immoral , or opposed to public policy .

(iii) the agreement is made without consideration , unless the agreement is
- a written promise made on account of natural love and affection between parties standing in near relation to each other .
-a promise to compensate for a past voluntary act
- a promise to compensate a person who did an act which the promisor was legally compellable to do
- A written promise to pay a debt barred by limitation law .
(iV) the agreement is in restraint of marriage of parties who are not minors
(v) the agreement restrains anyone from exercising a lawful profession , trade or business .
(vi) the agreement absolutely restricts any party to the agreement from enforcing his rights under any contract by the usual legal proceedings in the ordinary tribunals.
(vii) the meaning of the agreement is not certain or capable of being made certain .
(viii) agreements by way of wager ; no suit shall be brought to recover debts based on wagers
(ix) the agreement is to do an act which is impossible in itself .

Ticket Cases

In contract law , ticket cases are a series of cases that stand for the proposition that if you are handed a ticket or another document with terms , and you retain the ticket or document , then you are bound by those terms . Whether you have read the terms or not is irrelevant , and in a sense , using the ticket is analogous to signing the document . This issue is an important one due to the proliferation of exclusion clauses that accompany tickets in everyday transactions .

The case of Parker v. The South Eastern Railway Co ( 1877 ) 2 CPD 416 illustrates restrictions on this concept :

Knowledge of writing and of terms : If the recipient of the ticket knew that there was writing on the ticket and also knew that the ticket contained terms , then the recipient is bound by the terms of the contract .
Reasonable person : If the recipient did not know of the existence of the terms , then the court will consider whether a reasonable person would have known that the ticket contained terms . If that is so , then the ticket - holder is bound by those terms ; if not , then the court will return to the general test of whether reasonable notice of the terms was given .

Tbe test of whether a document fits within the description of a ticket is an objective test , that is , whether a reasonable person in the position of the ticket-holder would perceive it to be contractual in nature . For instance , if exclusion clauses accompany a docket , it may be held that it is not contractual in nature since it is just a receipt .

Furthermore , Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd ( 1989 ) 1 QB 433 held that if a party wishes to incorporate onerous terms into a document that is to be just accepted by the other party , reasonable notice must be given to make it a term of the contract .

Parker v South Eastern Railway (1877) 2 CPD 416 is a famous English contract law case on exclusion clauses where the court held that an individual cannot escape a contractual terms by failing to read the contract but that a party wanting to rely on an exclusion clause must take reasonable steps to bring it to the attention of the customer .

Background
Mr. Parker left a bag in the cloakroom of a railway station . On depositiing his bag and paying two pence he received a ticket , which , on its back , stated that the railway was excluded from liability for items worth 10 or more . Parker failed to read the clause as he though the ticket was only a receipt of payment . ( However , he admitted that he knew the ticket contained writing ) The question of law put to the court was whether the clause applied to Parker . At trial the jury found for Mr.Parker as it was reasonable for him not to read the ticket.

Judgment
The court held that if Parker was aware the ticket contained writing , Mr. Parker would be presumed to know of the existence of the clause . However , it also ruled that the railway must have shown that it went to reasonable efforts to bring the condition to Mr.Parker's attention . The Court ordered a retrial for the jury to consider whether reasonable notice was given .

Thorton v. SHoe Lane Parking Ltd . (1971)
Entering into a parking garage , a patron paid his money into an automatic teller and out came a ticket . ALthough the patron did not notice it , the ticket contained a notice " This ticket is issued subject to the conditions of issue as displayed on the premises. " There was also a notice board outside that read " All cars parked at owners' risk " The judges decided that the liability exemption condition did not apply because the contract was concluded when the patron put his money into the machine . "The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand , but not otherwise . He is not bound by the terms printed ont he ticket if they differ from the notice , because the ticket comes too late ( the patron having already paid ) . THe contract has already been made . "

Karsales ( Harrow ) Ltd .v. Wallis ( 1956)
-Fundamental breach defeats exclusion clause

A car was bought with " no condition or warranty that the vehicle was road worthy ." An earlier inspection of the vehicle had shown it to be road worthy , but it was no longer so upon delivery . The exclusion clause was set aside . "Notwithstanding earlier cases which might suggest the contrary , it is now settled that exempting clauses of this kind , no matter how widely they are expressed , only avail the party when he is carrying out his contract in its essential aspects . He is not allowed to use them as a cover for misconduct or indifference or to enable him to turn a blind eye to his obligations .... If he has been guilty of a breach of those obligations in a respect which goes to the vey root of the contract , he cannot rely on the exempting clauses."

Conditional Contract ( Contingent Contract )

A contract to do or not to do something , if some event , collateral to the contract , does or does not happen .
Example : X contracts to pay $10,000 if Y's house is burnt . (Here , "Y's house is burnt" is a condition precedent to the formation of the contract ).
General rule : Conditional contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened . If the event becomes impossible , such contracts become void.

Exemption Clauses

A terms of a contract that attempts to modify the principal obligations arising under the contract , or to limit/exclude the liability of a party in the event of his breach of his obligations to perform the contract
Example of term : "X is not liable for any loss or damage or injury however causes resulting from the use of the facility "
However , there is a rule relating to "fundamental breach" : if a party to the contract breaches an important or fundamental term , the party in breach will not be protected by the exemption clauses .
Example : Based on the same example above , C entered into a contract with Y to provide gymnasium facilities for the use of Y but the facilities were faulty and caused physical injury to Y . IN this case , x would lose protection by the exemption clause .
Statutes (e.g. Sale of Good Act 1957 ) can modify the effects of exemption clauses with the view to better protection of consumers .

Incorporating terms

Terms of an agreement which are recorded in a signed document are binding regardless of whether they have been read or not .
Example : Terms contained in a sales agreement that appear as small prints which the promisee seldom reads before signing on the acceptance .

collateral Contract

Evidence of collateral contract is admissible .
Collateral contract' means a separate contract in addition to the main contract .
Example : If X gives Y an undertaking in consideration of Y entering into a contract with X , then the undertaking is binding and is treated as a separate contract .

Extrinsic Evidence

The parol ( oral ) evidence rule will apply where a document records the terms of a contract .
Under the provision of Evidence Act 1950 , the parol evidence rule excludes the use of oral evidence for the purpose of contradicting , varying , adding to , or subtracting from the langugage of a written document .
The rationale : to preserve a degree of finality in written documents intended to be final .

Representations

Representations are statements ( made in the course of negotiation ) which have not been incorporated into the contract .
Remedies for untrue represntations - the innocent party may rescind the contract only without the right to claim for damages ( unless fraud is involved ) . In contrast , if there is an untrue term , the innocent party may claim for damages and have the right to terminate the performance of the contract .

Conditions and Warranties

Terms of a contract are classified into two types - conditions and warranties
A condition is an essential terms of the contract . The breach of any condition entitiles the innocent party to repudiate the contract and also claim for damages.
A warranty is a collateral term of the contract . The breach of any warranty entitiles the innocent party to claim for damages only , but not the right to reject the goods and treat the contract as repudiated .
Whether a term in a contract is a condition or a warranty depends on the intention of the parties .
Example of a condition : " The Contractor shall execute and complete the works in accordance with the contract drawings and specifications ."
Example of a warranty : " If the Contractor fails to complete the works by the Date for Completion , then the Contractor shall pay to the Employer liquidated and ascertained damages based on the agreed rate ."

Implied terms

A terms is implied if it is read intot he contract by the court or by the legislators , and it is necessary in the business sense to give efficacy to the contract .
An implied terms is an integral part of a contract despite the parties not having expressly provided for it .
Terms may be implied at common law or by statute , i.e. the interpretation of implied terms by the court is justified by reference to a number of acceptable practices e.g. custom or trade usage ; or to apply the provisions of a statue .
A term may be implied to cure an ovious omission to complete a contract or to express a generally accepted incident of a contract . Example : in a contract for service , if no price is fixed , a reasonable price is implied .

Express terms

A terms is express if it has been specifically agreed upon by the parties to a contract . and it may be either oral or in writing or of both .
Identification of express terms is by looking at the documents , if any , or at the negotiations conducted by the parties ( to determine which oral statements were intended by the parties to operate as terms ).

Content of a contract

1) Terms

Terms refers to a stipulation that gives efficacy to the intention of the parties .
Contractual terms may be express and /or implied .

Revision Question 2

The general rule is that an agreement made without consideration is void . What are the four types of agreements that are exceptional to this general rule ? Under the provision of the Contract Act 1950 , which of the above four exceptional agreements are required to be in written form ?

Answer : Four types of the exceptional agreements :

An agreement made on account of natural love and affection between parties standing in near relation to each other .
An agreement to compensate for the past voluntary act
An agreement to compensate a person who did an act which the promisor was legally compellable to do (Example : X supports Y's daughter, and Y promises to pay C for his expenses in doing so . This is a contract )
An agreement to pay a statute-barred debt ( Example : X owes Y $100K but the debt is barred by limitation . X signs a written promise to pay Y $50K on account of the debt . THis is a contract )

Agreements (i) and (iV) are required to be made in writing under the Act.

Revision Question

1. Ahmad invited his friend , Michael to Kuala Lumpur to stay at his home on a public holiday . Michael flew from Melbourne , Australia and found that Ahmad had gone to Singapore to attend a friend's wedding . Since Michael had no where else to stay in Kuala Lumpur , he went to stay at Grand Season Hotel . Michael wants to sue Ahmad . Advise Michael .

Answer: Since there was initially no intention by both parties to create legal relations , the agreement between MIchael and Ahmad is considered as a void contract . THerefore MUchael's claim against Ahmad will not be successful .

Privity of Contract

General rule : Only the parties to a contract can sue and be sued over it , i.e. a contract cannot give rights to , nor impose liabilities on , others.
Example : if x enters into a contract with Y , only X and Y can enforce or sue on the contract . Z , who is not a party to the contract , cannot do so .

Required formalities

The general rule is that a contract can be made orally , in writting or by conduct, unless otherwise required under specific statutes. Example : Hire-Purchase Act 1967 requires HP agreements to be in writing and signed by the hirer.

Legality of the objects

The object of the agreement is not forbidden by law , fraudulent or regarded by the court as immoral .

Free consent

Consent is said to be voluntary (free) if the consent was not a result of any of the following :
1) coercion-e.g. one party threatens the other with the intention of causing him to enter into an agreement .
Undue influence -e.g. one party uses his position to obtain unfair advantage over the other party.
Fraud-e.g. one party intends to deceive the other by suggesting an untrue fact , or actively concealing a fact known .
4)Misrepresentation -e.g. causing the other party to make a mistake as to the substance of the subject of the agreement .
5) Mistake-e.g. if both parties are labouring under the mistake (of fact) and the mistaken fact is essential to the agreement - the afreement is void , if one party is labouring under the mistake - the agreement is not voidable .

Legal capacity

Both parties are competent to enter into a contract , which involves both parties being of age of maority (18) , of sound mind ( at the time the agreement was made ) and is not disqualified from contracting by any other law .

Certainty

The essential terms of the bargain have been agreed upon , i.e. not to be expressly left to be settled by future agreement of the parties .
The language used in the agreement shall not be obscure and incapable of any precise or definite meaning . Otherwise the agreement is void .

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Thursday, July 7, 2011

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