-CL@r!ty-

DISCHARGE OF CONTRACTS

A contract is said to be discharged under these 3 situations:

a) Discharge by performance -If the parties perform their respective promises in accordance with the terms of the agreement, then it is said that the contract has been discharged by performance.
Example: Cirus Consulting Firm engaged itself in a contract with Woot Company last year for the duration of one year. Under the terms of agreement, Cirus need to consult Woot on their business operations, business strategy and distribution process. In fact, Cirus did carried out their tasks as promised for the past one year. The contract is hence terminated.

b) Discharge by frustration -A contract is frustrated if the contract legally or physically becomes impossible to perform for subsequent change of circumstances.
Example: Superstar 'Rain' concert will be held in Bukit Jalil Stadium on 1st of April. Unfortunately, the concert has to be cancelled as Malaysian government announced on 28, March that they had to shut down all operations of airports until H1N1 is in control.

c) Discharge by Breach of contract -If one of the parties in a contract refuses to perform his promise it is said that the contract has been discharged by breach.
Example: Amber agrees to sell her car to Max for RM 55,000. However, she refuses to sell the car after one week. Thus, Amber has breached the contract.

-UnderSt@nd!n9-

Invitation to Treat

Example 1:
One day, Jake and his friends went to Sunway Pyramid shopping centre for movie. While they are walking, Jake came across a shop where he is attracted by this wooden guitar hanging in front of the shop window. So, he decided to went in the shop and he saw a price tag placed beside the wooden guitar. In the end, he did not buy it as he cannot afford the price. After that, Jake meet up with his friends at cinema for the show.

Jake intended to buy the guitar at first but once he saw the price tag, he felt the price is not reasonable thus he left empty handed. As Jake walked off the shop without the guitar, he did not offer to buy it based on Section 2(a) of Contracts Act 1950. Case of Fisher versus Bell mentioned that display of any goods with a price tag is just an invitation to treat but not an offer.


Example 2:
Blair is a fresh graduate and she wants to work as an accountant as she holds the degree for Bachelor of Accounting. In the mean time, she is searching for jobs advertised on newspapers. She highlighted those posts that she is interested in. Finally, Blair decided to apply few companies for the post of accountant as she wants to increase her job opportunity. Without any hesitation, she sent her resume to those companies.


According to the case of Mazumder v. A.G. of Sarawak, it stated that advertisement on newspapers with job posts is merely an invitation to treat. Furthermore, though Blair can be regarded as making an offer since she had sent her resume, but she still need to wait for the reply. In other words, those companies can either reject or accept her application.

-Sh@me-

Dog towed by motorcyclist



A photo of a motorcyclist towing a chained dog that was uploaded to the Internet has sparked off public outrage in China.The photo, put up by a netizen surnamed Liu on Thursday, showed a man riding on a motorcycle on a highway in Fuzhou.

And a dog, which has a metal chain coiled around its neck, was being dragged along the road by the motorcyclist."I wound down my car window and asked the man to stop. However, he sped up and zoomed away," Liu told the Straits Newspaper, a metropolitan daily paper in the capital of China's Fujian province.

"The dog couldn't bark due to the chains around its neck, and its four legs were bleeding," Liu said. "The motorcyclist was riding at about 50 km per hour at the time."
Some netizens left messages at Tianya.cn - a popular online bulletin board - to rebuke the man's brutality. Some doubted that the man was a dog thief. Other furious netizens demanded a search for the man.- China Daily


Animal Ordinance Act 1953 is the law that governs animal abuse cases. The fine for abusing any animals is ranged from RM100 to RM200 only. Surprisingly, the punishment was rather lenient and many believed that it would not teach the wrong-doers a lesson. Under the Act, there is a jail sentence of 6 months however, it has never been used before. In Malaysia, SPCA (Society for the Prevention of Cruelty to Animals) is a non-profit organization which takes care of defenseless animals. "SPCA has came up with a petition and is appealing the court to raise the maximum fine of RM200 to RM100,000." [Quoted from Wikipedia] More and more articles about abandoned, abused animals are being published nowadays and this reflects the increasing number of animal abuse cases. Our government should enforced the Law of Animal Ordinance Act 1953 at once. Say NO to Animal Cruelty !!!

-@rt!cLe-

Girl, 16, buried alive for talking to boys

In a gruesome incident of honour killing, a 16-year-old Turkish girl was buried alive by relatives for talking to boys. Medine Memi was found in a sitting position with her hands tied, in a two-metre hole dug under a chicken pen outside her home in Kahta, according Turkish newspaper Hurriyet. Police made the discovery in December after a tip-off from an informant, who told the police she had been killed following a family "council" meeting.
A post mortem examination revealed large amounts of soil in her lungs and stomach, indicating that she had been alive and conscious while being buried. Her body showed no signs of bruising.
The girl had previously been reported missing. Her father and grandfather have since been arrested and held in custody pending trial. The girl’s mother was arrested, but was released later.
Media reports said the father had told relatives he was unhappy that his daughter, who was one of nine children, had male friends. The grandfather is said to have beaten her for having relations with the opposite sex.
Apparently Medine had repeatedly tried to report to police that she had been beaten by her father and grandfather days before she was killed.
"She tried to take refuge at the police station three times, and she was sent home three times," her mother, Immihan, said after the body was discovered in December.
The episode is set to reopen the debate about honour killings in Turkey. Although honour killings are not infrequent in Turkey, the especially gruesome manner of Medine's death has shocked the nation.
Official figures have indicated that more than 200 such killings take place each year, accounting for around half of all murders in Turkey.

Cited from: http://www.dailychilli.com/news/2238-girl-16-buried-alive-for-talking-to-boys

Honour killing also known as customary killing, is the murder of a family member by other family members, where the murderers (and potentially the wider community) believe that the victim have brought dishonor upon the family or community. Human Right Watch defines "honour killings" as acts of violence, usually murder, committed by male family members against female family members, who are held to have brought dishonor upon the family. A woman can be targeted by her family members for various reasons which include refuse to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce even from an abusive husband. -Quoted from Wikipedia-

The Medine case mentioned above occured in Turkey- one of the countries where honor killing is illegal yet common to occur. Based on Turkish Criminal Code, the person will be sentenced to life in prison if found guilty of this crime. One recent case was on January 13 last year, where five Kurdish family members are sentenced to life imprisonment for the honour killing of Naile Erdas, 16, who got pregnant after being raped. Cases of honour killing are indeed more likely to arise in rural areas due to lack of attention from authorities as well as they fell behind in terms of education, legislation and so forth. Souad, a woman who survived from a failed honour killing has published her first book "Burned Alive: A Victim of the Law of Men". This book is gaining momentum from human rights groups globally as now men and women are no longer unequal. Hence, raising awareness towards this issue is of utmost importance.

-Tut0r!aL-

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.

The issue regarding Wei case was whether a legally binding agreement exists between Wei with the cashier of Super Supermarket and whether Wei should return the goods. A legally binding agreement exists if there is offer and acceptance. Goods on display looked by Wei is just an invitation to treat but not an offer. Cases regarding display of goods in shops are Pharmaceutical Society of Great Britain v. Boots Cash Chemist and Fisher v. Bell. Any goods with a price tag displayed in a shop was merely an invitation to treat, stated in Fisher versus Bell case.

According to Section 2(a) of the Contracts Act, “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 an OFFER.” Thus, it means Wei offer to buy the 3 face creams when she took them to the counter. The known Carlill v. Carbolic Smoke Ball Co. Ltd. case where Carbolic Smoke Ball would offer 1000 pound to anyone who took their medicine as prescribed for a certain period but found the medicine ineffective. 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 based on Section 2 (b) of the Contract Act. The sale is said to take place at counter when the cashier accepted the price paid by Wei. Hence, there is a binding contract between Wei and the cashier as Wei offer to buy the products and the cashier accepted her payment.

Under Section 4(2), Contracts Act, the communication of acceptance is complete when a) it is put in a course of transmission to the proposer, so as to be out of the power of the acceptor or b) it comes to the knowledge of the proposer, as against the acceptor. Section 5 of Contracts Act 1950 stated that “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.” Case of Byrne v. Van Tienhoven can be refered where the revocation of offer by defendant was not effective as the plaintiff received the revocation letter only after the communication of acceptance is completed. In this case, the cashier has violated the Contract Act by asking Wei to return the goods hence, Wei has the right to not return the goods. However, if the cashier insist Wei to return the goods then Wei can file a lawsuit against the cashier.

-@Rt!Cle-

Japan whalers' new foe: Scientists
No-kill expedition sets out to challenge hunts


WELLINGTON, New Zealand - Researchers are en route to study whales off Antarctica without killing them -an open challenge to Japan's killing of up to 1,000 whales a year in the name of science.

Japan has a six-boat whaling fleet in Antarctic waters as part of its scientific whaling program, an allowed exception to the International Whaling Commission's 1986 ban on commercial whaling. Opponents claim Japan's program is commercial whaling in disguise, with the whale meat sold for food in Japan.






Australian government crew photographed this dead minke whale and her calf being hauled aboard a Japanese whaler in February 2008. Australia is considering a lawsuit against the hunts.

Some 18 scientists from Australia, France and New Zealand are taking part in the initial six-week voyage to research whales, their food and their interaction with the environment.

Source taken from : http://www.msnbc.msn.com/id/35198535/ns/world_news-world_environment/

Eight whales species are listed as endangered animal under the protection of Endangered Species Act which include blue whale, bowhead whale, fin whale, gray whale, sperm whale, bottlenose whale, minke whale and bryde whale. The future of whales now depends on Japan's decision whether to cease or continue whale hunting. According to Webecoist.com, Japanese whaling fleet claims to slaughter whales in the name of research, yet not a single study has been published ever since their hunting. Besides hundreds of minke whales, they slaughter few dozens of fin whales annually too, at the end turned out to be cans on store shelves. Article VIII of the International Whaling Commission (IWC) stated that member nations can kill as many whales as they need for scientific research purposes. However, opponents argued that Japan is exploiting IWC's rule to sustain its whaling industry thus Australia government is considering to file a lawsuit against Japan's hunt based on the article. If Australia takes legal action towards Japan, the lawsuit will be carried into international court to resolve whether Japan was using scientific research as smokescreen to escape the international ban on commercial whale-catching.

(images via Biotechonology Learning Hub)

-@Rt!cLe-

Driver watching porn when he rammed into car


BUFFALO (New York): State police say a truck driver was watching pornographic movies on his laptop computer when his rig struck a disabled car on the New York State Thruway near Buffalo last month, killing the driver.

Thomas Wallace of Ohio was arrested Tuesday. He’s been charged with second-degree manslaughter in the death of 33-year-old Julie Stratton, a mother of two from a Buffalo suburb.

The 45-year-old Wallace was being held in Genesee County Jail on Wednesday. It was unknown whether he had an attorney. Investigators say Wallace also violated federal trucking rules by sleeping no more than four of 27 hours before the crash.

Source cited from this website: http://thestar.com.my/news/story.asp?file=/2010/1/28/nation/20100128094359&sec=nation

This news above is somehow similar to the Ryan case where he hit a pedestrian due to distraction from using mobile phone. Similarity of both cases is the pedestrian was injured because of driver negligence and in Wallace case, the death of a woman was caused by driver negligence too. However, Ryan and Wallace will received different charges. Obviously, Wallace will be held on a more serious charge than Ryan. The reason is that the pedestrian was injured but not killed whereas the woman was killed in the crash. From the article, it stated that Wallace had been arrested with a charge of second-degree manslaughter.

So, everyone please drive safely.
Think of your family & Think about others !

-Du@L!ty-

The Doctr!ne 0f StaRe Dec!siS


PROs

Often, it is said that the Doctrine of Stare Decisis, also known as Doctrine of Judicial Precedent provides greater legal certainty. Think this way, our common law is backed by a considerable amount of case laws which in turn means that the probable outcome for cases is already provided. Since the problem already has a solution, therefore it is convenient to judges as it saves their effort and time to consider the facts then process the case before reaching a conclusion. Justice in law is of major importance thus fairness can be ensured under this system as similar cases are treated in the same way by refering to previous cases. Furthermore, any misjudgements can be avoided if past cases are used as guidance. As an important source of law, the Doctrine promotes the development of law where new laws are easily formed through the modification of existing laws.


CONs

Though legal certainty is led by the strong foundation underlying our laws, complexity and confusion will also arise parallelly due to the increasing amount of case laws which will caused difficulties in searching for relevant cases. Some who do not support this system argued on the issue of flexibility in which judges are not able to make own judgements as they are abide by the Doctrine. Another saying will be the judge's discretion is limited by this precedent. Hence, there are criticisms that the judicial precedent indeed has lead to system rigidity. If mistakes have been made in past cases, the mistakes will be repeated by the judge that followed the past cases unless the mistakes are corrected when discovered. The development of law is restricted within the border of judicial precedent thus it is hard to create new laws with further scope beyond. However, new laws are needed in order to prevent injustice especially under our changing nature.