Bachelor in Law and Commerce

Selamat Hari Kemerdekaan yang ke 51 Malaysia

2008-09-02T00:50:00.003+08:00

This would seemed late in wishing all BLC and LCS members a Happy Independence Day, but better late than never, no?

Happy 51st Independence Day Malaysia!

Also would like to take this instance to wish all of BLC and LCS' Muslim members Selamat Menyambut Bulan Ramadhan. Let us all forgive each other in this noble month and refrain ourselves not only from foods, but also the deeds that will only do us more harm.

May the month of Ramadhan unite us all and bring only goodness upon us as members and those around us. Insyallah. Amin.

Not forgetting to all the muslim members, you are most welcome to join us 'berpuasa' heheh

LCS United !

2008-07-27T21:15:00.007+08:00

Student Representative Council (MPP) has organised MSU Carnival Club. LCS has took part in the event and our booth was one of the most happening booth that day (the declaration was made by one of the UPP officers to some of LCS members). LCS would like to congratulates the organiser for their great job.

However, LCS members were a bit dissappointed with the cancellation of awards ceremony which has been announced few minutes before the closing ceremonial. If there were no awards of the most beautiful booth, or so on, the organiser should inform us so that we will not put any hope of winning at least one of the awards promised by the organisers. Despite the dissppointment,LCS members were still pleased with the event.

On behalf of our vice president,Nandini, i would like to thank all of the LCS Members who took part on the event in order to promote our society in the university. Even our Dato President was so proud with us, especially our mock trial,which he described as the best he ever seen !

Congratulation guys !

Here are some photos before and during the event.

P/S: IF ANYONE INTERESTED TO GET THE WHOLE PICTURES OF THE EVENT PLEASE LEAVE YOUR EMAIL ADDRESS AND I WILL FORWARD THOSE PICTURES THROUGH YOUR EMAIL. THANK YOU.

Happy Birthday Prof !

2008-07-15T04:14:00.005+08:00

Happy Birthday to you,
Happy Birthday to you,
Happy Birthday to Prof. Darbi,
Happy birthday to YOU !

Last Friday, 11/July/2008, our beloved Prof. Darbi celebrate his birthday ! I am not sure what is his age now. Is anyone knows? I dont think so.

No matter how old he is, he still look young, handsome and adoreable in the eyes of all BLC students.

If Prof read this, we would like to wish you HAPPY BIRTHDAY ! We were thinking to organise a birthday party for you, but due to the increament of oil prices, we students are affected. Therefore, on your birthday, none of us are afford to buy you a piece of cake. This is so reality, we have the evidence and we would say that this is not a myth ! haha..

But, we believe that you have already know that we love you so much ! Even we dont have money to organise a birthday party for you. Again, from all of us (BLC Students sem 1-6)

HAPPY BIRTHDAY !

Our Hero

LCS Members Are Busy Decorating Their Booth

2008-07-15T03:16:00.008+08:00

On 15/July/2008, Management and Science University is organising a Club Carnival which, every registered clubs in the university will showing off their annual activities at their booth.

LCS is one of the clubs taking part in the carnival. After days and night, working hard to make it happen, finally, for less then 24 hours, the time will come for us to share with all of the visitors who will be visiting our booth, what we have done through out the year.

LCS will not only holding an exhibitions, we are also going to perform our mock trial which is 100 percent done by the member of LCS. The vice-president of LCS, Ms. Nandini said that she is expecting more people to come to visit our booth as visitors may also seek any advice pertaining to legal issues from the member of LCS. The Legal fees is Free of Charge !

So guys, see you there !

P/S: Pictures cannot be upload due to servers problem. I will try to upload pictures soon.

Seminar on Intellectual Property By Prof. Dr. Lim Heng Gee

2008-07-15T02:50:00.003+08:00

Today, BLC students took part in a seminar organised by the Law Department of Faculty Business Management and Professional Studies.

The seminar was explaining the importance to protect ideas and thought, as protected by the intellectual property laws in Malaysia as well as the World Trade Organisation countries. The talk was delivered by Prof. Dr. Lim Heng Gee of UITM who is also a visiting lecturer of few universities in various countries. He is an expert in intellectual property.

The seminar was held at Block C room number CG05. At the end of the session, our beloved program manager has announced that every Monday is a Law and Commerce Day. Prof. Darbi has also annouced that, every Monday, student of BLC must wear a formal black and white attire. If failed to do so, students may be fined by the Department of Law. The enforcement may come into force starting next Monday.

Here are some pictures of the seminar.

Attention To Students Who Take Land Law 1 And Equity & Trust 2

2008-07-12T16:39:00.002+08:00

Attention to all of the students who registered for these two subjects, the clasess will be:

Equity And Trust 2 : Every Mondays at 5pm-8.30pm at class number c113B

Land Law 1 : Every Thursdays at 5.30pm-8.30pm at class number CG06

Please be informed !

For further information, please contact Mohd Ainuddin Aliff, the best class rep in the world ! :-)

Congratulations To LCS Futsal Team

2008-07-12T16:14:00.004+08:00

Today, LCS Futsal Team has participate in MSU Street Soccer 2008 competition which it was held at MSU.

The participation of LCS Futsal Team into the competition has shows that BLC students are not only excel in academics but also in sports. This has been proven when they finished the competition at quater finals level.

Again, Congratulations to all of you and we, LCS members and BLC students are really proud of you guys.

Our team players are:

Muhamad Muaz dahari
Muhamad Izwan B Omar
Mohd Azmir Sharifudin Hussein
Jainuddin Ibrahim
Neilirwan Shah B. Asman (Import player from Bachelor of Food Science)

LCS Players with opposition team

Another picture with the opponent

Our heroes with the famous LCS red jersey

Al-Fatihah

2008-06-30T01:52:00.003+08:00

Al-Fatihah to the President of Law and Commerce Society, who passed away on Monday, 16/June/2008 at Hospital Ampang.

May God bless him...........

Kejohanan Bola Sepak Piala Presiden 2008

2008-05-08T21:02:00.003+08:00

To all BLC-ian, your support are very much needed by our heroes who will be representing BLC and LCS. For your information, BLC and LCS will be represented by the team named RAHSIA, who our beloved Prof. Darbi Hashim is the manager of the team.

The information of the competition are as follows:

Time: 8 am- 5pm
Date: 10 May 2008
Venue: 'MSU Mini Stadium'

Lecturers from Department of Law is likely to be there to give their supports to the team. Instead of this official team, your support might also needed by Thangathurai's team (Thanga is also a BLC student, which half of his team squad are from BLC). Supporters of these team are required to wear a RED attire, as RED will be the official colour of our team !

May our supports will cause the victory to the team !

See you there ! :-)

Click a Child

2008-05-03T11:49:00.002+08:00

Ikhwan found this website on the net. This web site offer a way for us to volunteer ourself at the orphanage house. Further more, click a child provide for a stability in this orphanage life and give some hope and happiness that they can share with the world. So to all my BLC-ian, if you have the time, click this webite and lend your hand to those who are in need.

Good Luck

2008-05-01T16:47:00.002+08:00

As mid-term exam is just around the corner, I would like to wish all of my fellow BLC-ian GOOD LUCK in this upcoming mid-term exam. Do your best and let's achieve successfully together. Ganbattene!!!!

Certificate of Legal Practice Information - Course Subject (Part 2)

2008-04-29T02:24:00.000+08:00

4. Professional Practice

This subject covers a wide range of substantive law and comprises 5 areas which are divided into section A and section B.

Section A
(a) Advocacy and Duties of Counsel
(b) Ethics of the Legal Profession

Section B comprises of the following:
(a) Land Law and Conveyancing
(b) Probate and Administration of Estates
(c) Law of Bankruptcy

SECTION A

i. ADVOCACY AND DUTIES OF COUNSEL

Topics:-

Duties of Counsel - To Client and the Court / The Barrister's Immunity
Counsel's Liability in Negligence for Conduct of a Case
Summary Jurisdiction of the Courts Over Solicitors and Enforcement of Undertakings
Extent of Counsel's Authority
Counsel and Contempt of Court / Disciplinary Proceedings for Misbehaviour to Court
Legal Professional Privilege / s.126 Evidence Act 1950
Advocacy and the Trial in Court: Examination of Witnesses: Chapter X Evidence Act 1950 ss.135 -166.
Arguing the Appeal

ii. ETHICS OF THE LEGAL PROFESSION

Topics:-

Structure of the Malaysian Legal Profession
The Need for Ethics
Legal Profession (Practice and Etiqutte) Rules 1978
Acting for more than one party
Disciplinary Proceedings
Role and Immunity of an Advocate and Solicitor
Some Common Complaints Against the Legal Profession

SECTION B

i. LAND LAW AND LAND DEALINGS

Topics:-

The Malaysian Torrens System
The Application of English Equitable Principles to Land Matters
Disposal by the State Authority: Alienation
Types of Titles
Restriction in Interest, Conditions and Categories of Land Use
Indefeasibility of Title
Dealings
Restraints on Dealings
Housing Developers

ii. BANKRUPTCY AND WINDING UP

Topics:-

Introduction to Bankruptcy Law
Act of Bankruptcy
Bankruptcy notice
Bankruptcy Petition (Creditor's Petition)
Adjournment
Jurisdiction - Reinstatement
Receiving Order8. Adjudication Order
Proceedings Consequent to Adjudication
Composition or Scheme of Arrangement
Disclaimer:OA's rights:s.5912. The bankruptcy court and appeals
Discharge of bankrupt
Rescission and annulment of receiving and adjudicating orders
Companies Winding-up: The Companies Act 1965 and Companies (Winding-Up) Rules 1972

iii. ADMINISTRATION OF ESTATES

Topics:-

Types of Estates
Administration of an estate
Jurisdiction
Common types of grants of representation by the High Court
Grants where deceased died domiciled outside Malaysia: Grants to attorneys
Rights, Powers and Duties of Personal Representatives
Testacies
Intestacies
Letters of Administration with will annexed
Letters of administration de bonis non
Partial intestacies
Benefits of testate succession
The Administration of Muslim Estates
Caveats O.71r.37
Citation (O.71r.41-44 and s.9, Probate & Administration Act 1959)
Probate actions (O.72)

5. Evidence

The law of evidence is that part of adjective law which regulates the means by which facts are proved in judicial proceedings. The main statute is the Evidence Act 1950 (Act) and candidates are allowed to take an unmarked copy of the Act into the examination hall. The law of evidence regulates the proving of facts in both criminal and civil cases. While most of the rules in civil and criminal cases are the same, there are provisions that only apply in civil cases and provisions that only apply in criminal cases.

The Evidence syllabus requires students:

To acquire a thorough knowledge of all the principles of evidence and to be able to apply that knowledge practically in both civil and criminal proceedings.
To have a thorough understanding of the Evidence Act and the amendments made to it
To have a good understanding of all provisions relevant to evidence in the statutes mentioned below

Statutes

Dangerous Drugs Act 1952
Anti Corruption Act 1997
Oaths and Affirmation Act 1949

Topics:-

Introduction and Preliminary Matters
Facts
Relevancy
Hearsay 1 - The Rule and the Exceptions
Hearsay 2 - Admissions and Confessions
Similar Fact Evidence
Character Evidence
Opinion Evidence
Judicial Notice
Documentary Evidence
Burden and Standard of Proof
Presumptions
Witnesses - Competence and Compellability
Witnesses - Privilege
Witnesses - Corroboration
Examination of Witnesses
Illegally Obtained Evidence
Improper Admission or Rejection of Evidence

This is the end of course subject for CLP. Any other information will be post later

Information derive from http://www.clp4u.info/ website

Certificate of Legal Practice Information - Course Subject Part 1

2008-04-29T02:07:00.000+08:00

1. General Paper

This paper consists of two main parts, namely:

i. Tort
ii. Contract

In the examination candidates may be required to:

i. advise on evidence, liability and procedure
ii. advise on remedies
iii. draft pleadings

For this paper, candidates are not permitted to bring any statute into the examination hall.

Tort

The Tort syllabus requires students:

To have a good knowledge of the principles of the tort of negligence (including occupiers liability) and the defenses thereto
To know the provisions relevant to personal injury and fatal accidents cases in the Civil Law Act 1956
To be able to advise on the issue of liability
To be able to advise on damages for both personal injuries and causing death
To be able to draft pleadings

Contract

The main statutes here are the Contracts Act 1950 and the Specific Relief Act 1950 (Revised 1974).

The Contract syllabus requires students:

To have a good background knowledge of the Malaysian law of contract
To have a good understanding of the Contracts Act 1950 and the Specific Relief Act 1950 (Revised 1974)
To be able to advise the plaintiff on whether he has a cause of action
To be able to advise on remedies for breach of contract. These would include damages, specific performance, injunction and rescission
To be able to draft pleadings

2. Criminal Procedure

Criminal procedure is that part of adjective law which provides for the process within which the principles of criminal law operate. The main objective of criminal procedure is to provide the rules, practices and procedures to ensure a proper and efficient administration of criminal justice. The main statute for this subject is the Criminal Procedure Code (Act 593) and candidates are allowed to take an unmarked copy into the examination hall.

The Criminal Procedure syllabus requires students:

To understand criminal procedure in Malaysia from the stage of arrest to the stage of appeal or revision
To understand the various procedures, power and practices that governs criminal proceedings in Malaysia
To have a thorough understanding of the Criminal Procedure Code (Act 593) and the amendments made to it
To have a good understanding of the Child Act 2001 which came into force on 1st August 2002. The child Act has repealed the Juvenile Courts Act 1947 and the Child Protection Act 1991
To have a good understanding of all provisions relevant to criminal procedure in the statutes mentioned below

For the examination, candidates have to draft charges, prepare papers on appeals and to advise on the law.

Statutes

Other than the Criminal Procedure Code (Act 593), candidates are required to have a good understanding of all provisions relevant to criminal procedure in the statutes mentioned below:

Topics :-

Introduction
Courts
Arrest
Search
Police Investigations
Powers of the Public Prosecutor
Transfer of Cases
Initiation of Proceedings in Court
Impeachment Proceedings
Summary Trials
High Court Trials
Bail
Charges
Sentencing
Forfeiture
Appeals and Revision

3. Civil Procedure

Civil procedure regulates the procedure in civil cases. Candidates are allowed to take an unmarked copy of the Rules of the High Court and the Subordinate Court Rules into the examination hall.

The Rules of the High Court are divided by subject matter into 'Orders' and apply to all proceedings in the High Court.

The Subordinate Court Rules 1980 are also divided by subject matter into 'Orders' and apply to all proceedings in the Sessions or Magistrates Court. Each Order is divided into rules and sub-rules.

The Civil Procedure syllabus requires students:

To have a good understanding of the procedure governing the various stages of a trial from the stage of the mode of commencing civil proceedings in the High Court and the Subordinate Courts up to the stage of judgment
To be familiar with the enforcement of Judgments and Orders
To be familiar with the procedure for appeals
To be familiar with the Orders in the Rules of the High Court 1980(RHC) and the Subordinate Court Rules 1980 (SCR) and the amendments
To have a good understanding of all provisions relevant to civil procedure in the Subordinate Courts Act, the Courts of Judicature Act,
To have a good knowledge of decided cases on civil procedure
To be familiar with the 'Practice Directions'

Topics:-

Introduction
Civil Courts and their Jurisdiction
Modes of Originating Process
Parties
The Writ
Originating Summons (High Court)
The Summons (Subordinate Courts)
Appearance and Default Judgment
Summary Judgment
Payment into Court
Third Party Proceedings
Interpleader Proceedings
Pleadings - General Principles
Striking Out Pleadings and Indorsement
Amendment to Pleadings
Injunctions
The Mareva Injunction
The "Anton Piller" Injunction
Arrest and Attachment before trial under the Debtors Act 1957
Discovery
Affidavits
Interrogatories
Summons for Direction, Pre-Trial Case Management and Dismissal for Want of Prosecution
Trial
Costs
Enforcement of Judgments
Appeals

The other 2 Course Subject will be put in the second part of this post

Information derive from http://www.clp4u.info/ website

Certificate of Legal Practice Information - The Basic Things

2008-04-29T01:32:00.000+08:00

In order for Bachelor in Law and commerce (BLC) to be eligible for Certificate of Legal Practise (CLP), it need to fulfill the joint degree status. A degree where two or more distinct and different disciplines are studied together or combined into one degree is regarded as a joint degree. These are not recognised for the CLP EXCEPT where the duration is for 5 years or more AND a minimum of 12 substantive law subjects (including the six core) are studied. The core law subject are:-

Law of Contract
Law of Torts
Constitutional Law
Criminal Law
Land Law
Equity and Trusts

All of the 12 substantive law subject including the 6 core subject have been included in BLC syllabus. However, the requirement of time period or duration of 5 years are not fulfilled. Nevertheless, i believe that Prof Darbi and Mr Mahinder have work on this problem to enable the graduate of BLC to be entitled to sit for CLP examination. Any further information will be updated later.

The CLP examination tested the student on 5 course subject:-

general paper which will be divided into 2; torts and contract
criminal procedure
civil procedure
professional practice
evidence

These 5 compulsory papers need to be pass by the students in one sitting. If he fails more than one subject, he will have to retake all five subjects in July or August the following year unless the candidate has failed badly, (a total of less than 100 marks for the 5 subjects) in which case the candidate will be barred from the next sitting. However if the candidates fails only one paper, he only has to re-sit that paper on a date specified by the Board. Students who successfully complete the examination will be entitled to use the designatory letters CLP. The fees would be:-

RM 3,000 for registration fee

RM1,000 for examination fee

Hope that this basic info will help you in better understanding of the CLP exam. Each course subject information will be put in the next post

Information was derived from http://www.clp4u.info/ website.

Jurisprudence - Lesson 4

2008-04-26T18:50:00.000+08:00

Revision to Rule Of Law

A concept that was developed in Europe
The idea of rule of man that evolve into rule of law
During the periods of Kings, people believe that the king is an objectification of God, thus, possesses the Divine right to rules against other
'Objectification' is a product of human idea or labour

Human being dominate nature, but symbol dominate human

Rule of man basically is just another myth and fiction to create a clear and apparent symbol of the king
The king, hence, developed this rule by the virtue of it is a divine right of the king
Rule of law has evolved to rule of law as myth and fiction has evolve to conceptual
Nevertheless, rule of law is just another concept created by the modern man to enable people to be govern by a government instead of king and queen

Limitation or Challenge to the Concept of Rule of Law

1. Interpretation of law

Judges have their own idea in interpreting the law
This could be influence by their social and educational background, economic and political interest and many other elements and factor
It is a discretion power of the judges to interpret the law but the interpretation sometimes may cause hardship to other based on the influence stated above
Hence, rule of law become a set of rule that has been set by one men (judge) rather than many (legislature)
Rule of law does not 100% guaranteed that the law will be free from bias and influence as the interpretation by the judges is open to an extra-legal factors or influence as mentioned above

2. Separation of power

Constitutional government upheld the separation of power
Nevertheless, in practise there are no absolute separation of power
Thus, separation of power is something of a sham or myth to upheld the rule of law

3. Certainty of the law is an illusion

Rule of law claim to provide certainty of conduct but it can never guaranteed it
Example situation - Article 11 of Federal Constitution stated that every person has the right to profess any religion hi choose, nevertheless, this is not applicable to Muslim although this is not stated in the article
In practice, no one can predict what the law is and how it is going to be applied
The law will be decided in court and this will lead to the limitation #1
Further, the enforcement of the law sometimes being influence with external factor such as racism

4. Conflicts between Judaical and executive view of the law

What the executive intended in the law might be interpreted by the judiciary
More over, executive decision to save a country might be contrary with the law, hence, create dispute with the judiciary who just want to upheld the law

5. Transplantation problem in Rule of Law

Idea of rule of was developed in Europe
When the idea was bring to another continent or state, rule of law will find a difficulty in adapting to the society
Different races or places provided for a different idea on how to interpret rule of law
Western law stresses on right as Malaysian law stresses on responsibility

6. The concept of procedural justice against substantive justice

Law under rule of law concept is formal/procedural justice but not substantive justice
Rule of law promote that any wrong doing shall be charged accordingly following the procedure regardless of elements or factors that contribute to the wrong doing
Considering the element that contribute to the wrong doing will allow substantive justice that defeat the concept of law is king
If the law will followed the concept of substantive justice, this will cause floodgate of appeal as people will used the compassion of the judge to escape punishment and liability
Law should not be discriminate and shall be generally applicable to all
Substantive justice usually being uphold in kadhi justice that will lead to arbitrariness

Up until now, i hope everyone has a general idea of what is Jurisprudence. I know that a lot of us think that this subject is taboo, nevertheless, always believe in what you believe in and treat jurisprudence as just another subject

Corporate and Partnership Law - Lesson 4

2008-04-26T15:21:00.000+08:00

Rights

Section 21 of Partnership Act (PA) stated that what every thing that have been done by the partner must be based on mutual right either stated in the agreement or inferred from a course dealing

1. Capital and profits

Section 26 (a) of PA
This section stated that share, profit and capital must be equally divided
Nevertheless, by way of agreement, the division can be varied

2. Indemnity

Section 26 (b) of PA
This section stated that a person who resolves the liability of the firm has to be indemnify in respect of payments made and personal liabilities incurred to him

Koh Hong Leong & Ors v Seow Koh Cheng & Ors
FACT: The respondent (R) has succeeded in the defence to an action against the firm the firm . It involved a claim amounting to RM4,000 for damages of breach of contract. When the partnership is dissolves, the court ordered that the legal cost incurred by the R is paid from the firm's asset . The order however was objected by the Appellant (A) who then make appeal to the appeal court
HELD: The court held that the firm or the partnership has the duty to indemnify the partner who has paid that amount R

3. Interest on the extra capital subscribed

Section 26 (c) of PA
This section stated that when a partner has put on extra capital to the firm, he is entitled to interest of 8% per annum from the date of the payment or advance
The interest is given due to the fact that the extra capital shall be regarded as loan by the firm

4. Interest on capital subscribed

Section 26 (d) of PA
This section stated that in regarding to the payment of interest, the firm need to make a profit first before the interest can be made
This section is closely related to Section 26 (c) of PA

5. Management of the partnership business

Section 26 (e) of PA
This section stated that every partner shall be entitled to be involved in the management of the firm

6. Remuneration

Section 26 (f) of PA
This section stated that partner's are not entitled for a salary from the partnership
Nevertheless, 'salary partner' can exist provided that it was stated clearly in the agreement

7. Introduction of a new partner

Section 26 (g) of PA
This section stated that in order for a new partner to be brought into the partnership, consent of all existing partners are needed

Byrne v Reid
FACT: Pursuant to a partnership agreement, a father is empowered to nominate his son as partner. However when the father did so, the other partner refused to accept it
HELD: The court held that the written agreement allowed the son to be the partners in the firm

8. Differences as to ordinary matters

Section 26 (h) of PA
This section stated that if there is any differences as to any ordinary matters shall be decided by a majority of the partner
Nevertheless, if there is a proposal to change the nature of the business, consent from all of the partners need to be obtained first

Highly v Walker
FACT: There are 3 partners who have different views or perspective on how the partnership business should be run. The plaintiff (P) who is one of the partner applied for an injunction to prevent the other 2 partners who had resole to introduce into the partnership is son with a view to venture into new business
ISSUE: Whether the decision relate to an ordinary matter connected with the partnership
HELD: The court held that this matter is in relation on ordinary matter concerning the partnership business and not related to the introduction of a new partner. Hence, the majority of the partner is sufficient because the son will only be needed for his expertise

9. Partnership book

Section 26 (i) of PA
This section stated that partnership book need to be kept at the place of the business of the partnership
Further, every partner shall have the access and rights to inspect or copy it

Bevan v Webb
FACT: The sleeping partner in a partnership decided to sell their interest to the managing partner. For the purpose of valuation, the sleeping partner had appointed a valuer to inspect the book of the partnership. Nonetheless, the managing partner refuse to allow him to have access to it. The sleeping partner then applied for an injunction from the court to allowed the valuer to gain access to the partnership book for the purpose of evaluation
HELD: The court held that injunction will be granted to the sleeping partner and the valuer

10. Expulsion

Section 27 of PA
This section stated that a majority cannot expel any partner unless it was stated by an express agreement between the partner
If there is no agreement made between the partners, the expulsion cannot be made unless the matter are bring to the court

Re a Solicitor's Arbitration
FACT: E, N and S are partners in a legal firm. In the partnership agreement, there was a clause stated that if any partner shall commit or be guilty on any act of professional misconduct, then the other partner may by notice in writing, expel him from the partnership. E served on the other 2 partners a notice to expel both of them from the partnership on the ground of their alleged misconduct
HELD: The court held that E had no power to expel both of them as he is not a majority. Alternatively, E will have to join with any 1 of N and S to expel 1 partner in the partnership

Green v Howell
FACT: there is a clause in the partnership agreement stated tat in the event of any one of the partner breach any duty as a partner, the other partner are not entitled to expel them unless there is a good faith. Subsequently, 1 of the partner had breach the partnership agreement
HELD: The court held that a preliminary warning us needed and meeting must be held before expulsion can be executed. Furthermore, the partner who may be expel need to be given a right to explain himself as stated in the natural justice

Duties

Duties of a partners are laid down under section 30, 31 and 32 of PA
Each partner has the duty of good faith to the other partner in the partnership
Utmost good faith is due from every member of a partnership towards every other member of the partnership and in terms of allegation made by any of the partners stating that the other partners are making benefit to themselves at the expense of the partnership are required to show that not only the law was on their side but his also bear that their conduct are to be tried by the highest standard of honour

Vasu Devan & Ors v VA Nair
FACT: A firm was formed by the respondent (R), first appellant (1P) and the second appellant (2P). The business of the partnership however was not successful. It was then being decided that a limited company should be formed to buy over the firm and the 1P are given the directorship of the company. R denied the agreement and also alleged that the buying of the company was made in a fraudulent manner.
HELD: The court held that the 1P and the 2P did not provide an utmost good faith to the R, thus, the agreement was null and void

i. Duty to render true accounts and full information

Section 30 of PA
Partners are bound to render true accounts and full information about the partnership business
In a simple way what ever that you do in the partnership, you need to do it with sincerity, faithful and committed

Law v Law
FACT: The defendant (D) acquired the plaintiff's (P) shares for an amount that is less than what he paid. P then upon realising that the fact then sue D on the ground that he failed to disclosed a number of assets to him
HELD: The court held that D has a duty to disclose all material facts with reference to the assets.

ii. Duty to account for any benefit derived from any transaction concerning the partnership

Section 31 of PA
Partners are not accountability for a secret or private profit

Pathirana v Pathirana
FACT: Both plaintiff (P) and the defendant (D) are partners in a partnership. The partnership belonged to a company who has appointed them as an agent of the company. D gave 3 months notice to terminate the partnership, but negotiated a new agreement with the company to transferred the agency into his own name. Not only that, he also continued to trade in the same way at the same premises of the previous partnership
HELD: The court held that P was entitled to a share in the profits form D business. the agency agreement was a partnership asset and D's use of it was a breach of fiduciary duty

iii. Duty to account for profit derived from competing business

Any profit from a competing business must be credited to the partnership account
In Trimble v Goldberg, a partners is forbid from withholding from the firm any opportunity of advantage which falls within the scope of its undertakings, and from using for his own exclusive benefits, information, knowledge or resources to which the firm is entitled

Partnership property

i. Section 22 (1) of PA

The meaning of partnership property is any property that has been brought in originally into the partnership by way of purchase or acquired, and has been used in the course of the partnership business
The property must be used and applied for the partnership business

Miles v Clarke
FACT: the defendant (D) was a professional photograph who carried on his business at premises which he lease for 7 years from 1948. 2 years later, he entered into a partnership with the plaintiff (P). When the partnership broke up due to a dispute arose between them, P alleged that consumable stock-in-trade, the personal connection brought in by each partner, the lease of the premises and the furniture, fitting, and equipment of the studios shall be regarded as the partnership property
ISSUE: Whether the premises can be considered as the partnership property
HELD: The court held that only consumable stock-in-trade belonged to the partnership property

Davis v Games
HELD: The court held in this case stated that 2 person can be a co-owner of a piece of land and partners at a same time. However they can do business on the land without it forming part of the firm assets

ii. Section 22 (2) of PA

iii. Section 23 of PA

Property bought using the partnership money is a partnership property unless there is a contrary intention
In Ponnukon v Jebaratnam, the property was held not to be partnership property because it was not paid for by the funds of the partnership but the funds raised by a partner on his own separate act independently of the other partner or of the partnership

Shares in the partnership and assignment

i. Section 26 (g) of PA

Who ever wanted to possess any shares in the partnership need to be a partner first

ii. Section 33 (1) of PA

Assignment is a transfer of right
The assignee of an assignor shares can only received profit from the shares but not participate in the management or administration of the partnership
In Oh Kian Loo v Hock Wah Trading Co & Ors, the court stated that the right does not extend to assignees of partnership shares

Dissolution of partnership

1. Court interference/orders

a. Fixed term

Section 34 of PA
A partnership can be formed in a limited period, where the term of its existence are put in the agreement
When the time lapsed, the partnership will be automatically dissolved

b Completion of an event or undertaking

A partnership may be form in order to served for a certain event or undertaking
After the event or undertaking is finish, the partnership shall be dissolve

c. Notice

Section 28 of PA
Partnership can be dissolve after a notice has been given to the public at large

d. Death or bankruptcy

Section 35 (1) of PA
Every partnership will be dissolve as regards regards all the partners by the death or bankruptcy

e. Illegality

Section 36 of PA
A business of a partnership that is unlawful in the eye of the law will effect in the dissolution of the partnership

2. With court interference/orders

Section 37 of PA

i. Insanity
ii. Permanent incapacity
iii.Conduct of a partner that cause prejudice to the business - A religion motivator of a partnership flirting with the people that he motivated
iv. Wilful or persistence breach of the partnership agreement - A partner in a construction company by a cheap and unquality product
v. The business is at losses
vi. When the court feel it is just an equitable to dissolve the partnership

This is the end of Partnership Law. But it will continued with Companies Law. Hope this will teach us a bit about partnership. :-)

Law of Succession - Lesson 3

2008-04-25T16:18:00.000+08:00

Sample of Wills - Basic Clause in the Will

There is no standard format on how will should be written, nevertheless, this can be a guideline to make a good will

1. Opening clause

This is the part where the testator identified himself
It is important to state name or nick name if any

2. Revocation clause

This is the part where the testator state that he revoked any earlier will that he has made
This is regardless whether there is any will that has been made earlier

3. Appointment of executor

This is the part where the testator will appoint the executor
The executor will be responsible to administer the will
It is important to appoint someone that are willing and already give consent to the executor
Problem will arose if the executor did not give consent as he will be the one who responsible with the testator's property upon his death

4. Appointment of trustee

This is the part where the testator appoint a trustee
A trustee is someone who will hold the property of the testator for the benefit of a person below the Age of Majority
Nevertheless, this is an optional task

5. Appointment of guardian

This is the part where the testator appoint person to be the guardian of the underage children of the testator if any

6. Assets distribution

This part related to a specific instruction on who will get what and how much relating to the distribution of assets made by the testator

7. Residuary clause

This part related to a specific instruction on what will be given under residue to a specific person
Residue is a distribution of balance of asset that are not mention in the will that need to be distributed

8. Special instruction

This part related to a specific instruction that is not related to the assets
For example, the instruction on how the body of the testator should be cremated

Type of Properties that can be Disposed by way of Will

1. Land and Building

This type of property concern with immovable property
For this property to be valid under a will, it need to be free from encumbrances which mean that is is free from any subject matter such as lease to a bank
Not only that, it need to be make sure that the property has no joint ownership or the property is not a joint property such as house or land sharing
The testator must also posses the right or ownership of that property

Papoo v Veeriah
FACT: A widow applied for the transfer of her late husband's temporary occupation licence (TOL) to her own name as the sole beneficiary of the estate of the deceased.
HELD: The court dismissed her application stating that the property cannot be transferred as it is a TOL land. The late husband did not possesses any rights or ownership on the land as it is only been given temporarily to him under the TOL agreement

2. Specific gifts

This is an assets that are specifically describe so as to be readily ascertained

3. Property abroad

For a property that is immovable situated outside Malaysia, the local law of where the property reside shall be applicable in the making of the will
The foreign law of succession will be used

4. Shares

Shares can be made as a will but it is subjected to the approval of the company
The approval is needed as sometimes, for a limited company, the members usually are closely related, nevertheless, by way of putting shares in a will, this will entitled the beneficiary who will be a complete stranger to hold rights against the company

5.Life assurance policy

For the purpose of life insurance, the person obtaining the life insurance are required to nominate who ever he thinks fit to received the insurance upon his death
Putting the life insurance in a will, lead to a conflict in interest between the beneficiary and also the nominee

Types of wills

1. Non-cupative and holographic will

a. Non-cupative will

It is a form of an oral will
It is dictated by the testator during his illness before a specific number of witnesses and later reduced into writing
There is a limited exception to the requirement of a valid will; made in writing

Ooi Siew Hong v Ooi Kim Lan
FACT: The testator is said to profess 3 religion at one time. Upon his death, none of the 3 religion provided for the way of disposable the immovable property of the testator according to the local law as, the testator had leave an oral will on how his property should be distributed before his death
HELD: The court held that the oral will is amounted to non-cupative will, thus, it is valid provided that it will be reduced to writing later on

b. Holographic will

This is a will that are entirely written and signed in the handwriting of the testator
Witnesses are not needed as the will was made entirely in the testator handwriting

2. Conditional will

This type of will only made effective on the happening of a specific event as stated in the will by the testator in a form of condition
In Re Vives, the court held that it is a will made in terms subject to the happenning of an event and that event must occur before the will can be operative
In the case of lindsay v lindsay, the court stated that a provision in a will saying "if i shall died at sea or abroad, i will give my property to Mr X" amounted to a conditional will
In the case of Re Thomas, the court held that a provision in a will saying that 'if i survived my wife and inherit under her will, i will donate her property' is also amounted to condition will

3. Joint will

It is a document which consist the wishes of several testator and it is treated as the will of each of them
Each of the testator will then signed the will in a single document
The significant of having a joint will in a 1 single document is that it reflect the mutual intention of all of the testator
In the case of Re Duddell, the court stated that to make joint will valid, each testator who is a party to the joint will must execute the said will in accordance with the Will Act
The requirement of a valid will are still standing in joint will
The will will take commence once the testator passed away, and it is not material to have all of the testator died before the beneficiary enjoyed the benefit of the will
The will is revocable before the death of the testator and the revocation can only be made on the individual portion of the testator
The remaining testator would not be allowed to revoke the will of the deceased testator

4. Mutual will

The concept of mutual will is similar to joint will
Mutual will is a will that involved more than 1 person with a minimum number of 2 person
It usually involved family members and friends such as husband and wife and best friend
The will will state that the survivor of the testator will enjoy the property of the deceased
Upon the deaths of the survivor testator, the property will then be given to the beneficiary as agreed by all of the testator
There are 3 element of mutual will:-

i. There must be an agreement to create a mutual will

For this purpose there must be an ample evidence to show that all of the testator have intended the same
This is as stated in the case of Dufour v Pereira

ii. The will is not revocable upon the death of any one of the testator

If the will were to be revoked after the death of any one of the testator, it will create an unfair advantage
Nevertheless, the will can be revoke while both parties are still alive

Re Hagger
FACT: A Husband and wife make a joint will in which it was expressly stated that the partners had agreed to dispose of their property in the manner describe in the will and further, it was stated that there would be no alteration or revocation of the document without consent from the other testator.
HELD: The court held that this is not a joint will, instead it need to be treated as a mutual will due to the fact that there is a clause stated that it is not revocable

iii. Mutual will contain an element of trust

The survivor testator has the duty to passed the property to the beneficiary upon his death
The statement above proof that there is an element of trust involved in mutual will
In the case of Re Green, the mutual will shall only bind the deceased property but not the personal property of the survivor. The court also decided that it is legal for the other testator to make a new will upon the death of the deceased provided that the deceased property will not be include in the testator's will

5. Privileged will

Section 26 of the Will Act (WA) provided that no formal requirement is needed in order to create a privileged will
Privileged will can only be made by soldiers, airmen and sailors
Under the common law, privileged will can only be ceased when the lives of the person is in danger
Further, the member of the arm forces must be in an actual military service when they made the will
Section 26 (2) of WA stated that the will can be made in oral or in writing
Section 26 (4) of WA stated that no execution are needed in the will
Section 26 (5) of WA stated that there are no requirement to follow procedure of a normal will
Section 26 (6) of WA stated that the will only have a limited period of existence; 1 month
In the case of Re Wingham, Lord Denning said that the meaning of in a great danger must be interpreted widely and not necessary mean in a real danger

In The Estate of Ada Stanley
FACT: The deceased was a nurse employed under a contract by the war office on hospital ship. She wrote a letter giving direction on how to disposed her property, but it was not attested
HELD: The court held that this falls under a privileged will, thus, it is a valid will

In B Knibbs
FACT: A barmen who work on a ship was having a conversation with his friend. He said that he want to leave his property to a beneficiary during the conversation
HELD: The court held that the conversation happen during a spare time, thus, the barmen would no have the element of intention in making the will

Even though privileged will does not followed certain requirement of a normal will, but it still required the element of intention from the testator to make the will
This will is revocable as long as the revocation was made before the death of the testator as in the normal will requirement

6. Incorporation be reference

The doctrine of incorporation allows a document which has not been executed to be put in the original will
This will then form a part of the will
Some detailed that are not being mention at the time of making the will can be incorporated into the will later by the doctrine of incorporation
The element of doctrine of incorporation are:

i. The doctrine referred in the will must be in existence at the time the will was made
ii. The document must be referred to as being in existence
iii. The document must be clearly identified

The effect of the doctrine of incorporation will is that it will make the incorporated document to be admitted as part of the will

Singleton v Tom Linson
FACT: There was an argument that doctrine of incorporation should not be apply as the witnesses of the will could not remember seeing the schedule of that document at the time of execution
HELD: The court held that the doctrine of incorporation failed in the part of the witness

Corporate and Partnership - Lesson 3

2008-04-24T00:50:00.000+08:00

d. The act must be done by the partner as a partner of the firm and not in his own personal capacity

This is as stated in Section 9 of PA

Re Briggs & Co Ex parte Wright
FACT: Father and son is partner in a partnership. The son used the name of the partnership for the purpose of burrowing money from the creditor. The money was used for the purpose of the partnership but the decision was made solely by the son.
HELD: The court held that the usage of the name of the partnership made all of the partner's liable even though there is no consent from the other partner

Asamaju Enterprises v Malayan Banking Berhad
ISSUE: Whether the partnership is liable when the cheque is sign by one of the partner
HELD: The court held that even 1 party sign the cheque; it will bind the partnership as stated under Section 8 of the Partnership Act (PA)

e. The third party must have knowledge that the particular partner has no authority to act on behalf in the partnership

If a third party has no knowledge that a particular partner has no authority to act on behalf of the partnership, the partnership is still liable

Nature of the liability for debts and obligation

Section 11 of PA
Joint liability - a third party can sue all of the partnership
Several Liability - a third party can also sue any one of the partners
The procedure is that, a third party need to see the partnership first then only sue the partners individually
It is not material whether the partner is a sleeping partner or a secret partner

Kendall v Hamilton
FACT: Kandall, the plaintiff (P) gave loan to X and Y who are partners in a trading firm. When X and Y cannot pay the loan, P then take action against them. Judgment was entered against them. Subsequently, both of them have been declared bankrupt. After that P had found the defendant (D) who is wealthy person and also a secret partner to X and Y. P then initiated a proceeding against D
HELD: The court held that P had the right to sue D legally, however, the court dismiss the case application because once the action has been completed against the firm, no one cannot be made liable for a same action in a different proceeding

Guinness Anchor Marketing Sdn Bhd v Chellam Joe Vetha Thya Singh
PRINCIPLE: Joint liability can be defined as there is only 1 course of action for the recovery of debt. Once the course of action had been exhausted, a second course of action or a new proceeding is no longer available against any partners by the creditor who failed to sue at the first instance

Other liability on the partner

a. Wrong and tortuous liability

Section 12 of PA stated that a firm can be made liable provided it happen on the ordinary course of business

Hamlyn v Houston & Co
FACT: A partner in the defendant’s (D) firm bribes a clerk in a rival firm for the purpose of obtaining private and confidential information relating to a legal matter. The rival firm had suffered losses because of the particular information. The rival firm then sued D
HELD: The firm is liable even though the act was done by 1 of the partner because it was made for the purpose of the business

b. Criminal liability

Section 12 of PA does not mention clearly the position of criminal liability as it only emphasize on tortuous liability

Chung Shin Kian v PP
FACT: This particular partnership has been dealing with imitation goods called Texwood but it was handling by only 1 partner. He then get caught in a raid
HELD: The court held that the other partner shall not be made liable because the partnership act provide for joint liability on contract and tortuous liability but not for criminal liability

c. Liability for misapplication of money or property

Section 13 of PA stated that one partner acting within the scope of his apparent authority received money of the property from third person, he misapplied it, and he will be made liable
The other assent of section 13 is that a firm in the course of its business receives the money or property, and then misapplies it, the firm is also liable
Section 14 of PA provide that liability only exist when that particular partner still in the partnership

d. Misuse of trust property

Section 15 of PA stated that the other partner who is not the trustee shall not be liable if the partner who is a trustee misuse the trust

Ex parte Heaton
FACT: A partnership consists of a father and son. The son is a trustee of a will. They had been using the trust money for the business of the firm. When the firm was declared bankrupt, an action was also taken to the father
HELD: The court held that the father is not liable because the father was not the trustee of the trust even though the money was used for the purpose of the business of the firm

e. Liability of persons for holding out

Example situation - A, B and C who is a partner were talking with E and F. A third party who deal with E and F has been lead to think that both of them are partner to A, B and C. Nevertheless, A, B and C did not denied or correct the statement. If the third party sued E and F, A, B and C will also be liable

William Jack Co (Malays) Ltd v Chan & Yong Trading Co
FACT: A minor who is on of the partner in the partnership had approached a salesman for the purpose of obtaining a supply
ISSUE: Whether the partnership should be made liable when the partnership cannot pay for the minor dealing
HELD: The court held that when there is no correction on the statement by a person, the firm is liable. Holding out must be read together with the doctrine of estoppels which mean that the firm will be stop from denying that the particular person is not the partner

i. Retiring partner
Retiring partner needs to give notice of his retirement to any person who used to deal with the firm by way of publication

Re Siew Inn Steam Co
FACT: A retired partner had put in notice of his retirement in several issues of a newspaper in which certain old customer were proved to be regular subscriber. However after his retirement, some of the old customer lends money to the firm partnership. Nevertheless, the firm failed to pay back the loan
HELD: The court held that the retired partner as liable because he failed to serve actual notice to the customer. However, this is not a good judgment as for today, publication is a sufficient notice

Tower Cabinet Co Ltd v Ingram
FACT: There is a partnership of 2 person; Christmas and Ingram and the name of the partnership is Merry's. The partnership was dissolve in April 1947, but Christmas still carried on the business under the same name. In 1948, the plaintiff (P) had supplied the partnership with furniture but there was no payment made by Christmas. Before the supplier sent the goods to the partnership, they relied on the old headed note paper bearing the partnership's name. The order was made without any authority from Ingram. Ingram, on the other hand did not destroyed all of the paper containing the letterhead of the firm
ISSUE: Whether Ingram can be made liable to pay the debts made by Christmas
HELD: The court held that Ingram was not liable because he had not knowingly suffered himself to be represented as a partner because he did not know that the old partner still carrying the business under the same partnership's name

ii. Death of partner

Section 16 of the PA stated that the death partner will not be made liable on any liability incurred to the partnership after his death
Furthermore, there is no requirement to give notice to the public at large

f. Liability of incoming and outgoing partner

i. Incoming partner

Section 19(1) of PA stated that in the case of incoming partner, the liability will only incurred upon him after he become partner to the firm
Further, any liability imposed to the firm before the incoming partner arrival, he will not be made liable for that liability

Rolfe and Bank of Australasia v Flower Salting & Co
HELD: The court held that the new partners were held liable to the debts of the old firm as they had impliedly agreed to accept liability by not objecting to the accounts provided by the creditors. In other word, a new partner will still be made liable to the debts of his old firm even though he has joint a new firm

ii. Outgoing partner

Section 19(2) of PA stated that in the case of outgoing partner, the liability will only be imposed up until the day he leaves the partnership
Further, any liability imposed to the firm during his time in office will still be carried even after he leaves the partnership

Malayan Banking Bhd v Lim Chee Leng & Anor
FACT: The respondent (R) was partners to a firm know as Berjasa Corporation. A sued R under a trust receipt which matured and become payable on 14 June 1975. Nevertheless, R leaves the partnership on 26 August 1976
HELD: The court held that R is liable because the liability incurred prior to his resignation

Court v Berlin
FACT: A firm engaged solicitor to sue on their behalf. 2 partners retire while the case in ongoing.
ISSUE: Whether the retiring partners are liable for the solicitor's costs incurred after their retirement
HELD: The court held that they were, as the solicitor's appointment consists of one entire contractor carry on the action to the end

Nevertheless, Section 19(3) of PA, the outgoing partners can be exempted from liability by way of agreement made between the partners

That's all for now.

Jurisprudence - Lesson 3

2008-04-22T23:18:00.000+08:00

Sovereignty

It is a contested concept as there are many different theoretical approaches dispute over its correct explanation or definition, and also disagreeing about its practical relevance
Person (King, Monarch, Sultan), groups (Judicial Council), state (Sovereign State) developed the idea of one person authority to the idea of people or the idea of “we”
The idea of “we” provide for a constitution
A sovereign state can be define as a state that has been mutually recognized and there is no other state that possesses the right to invade it regardless of the size or population or any other element of the state

a. Origin of Sovereignty

i. Based on Thomas Hobbes

The social contract theory
Man and women were living in the state of nature where there is chaos, brutality and war against each other
When people realized that they cannot live in this kind of live, they claim to agree to an appointed government
The idea of social contract provide for security which will lead to sovereignty

ii. Based on John Locke

Originally, sovereignty was governing under the Monarch or King which stated that is it a divine right of the King to rule over its people
This later move to a rule of consent of people and the government

b. Sovereignty Leads to Revolution

i. America War of Independence

The idea of sovereignty make the people of America to realized that they want an independent from the British colonization
They don't want to be rule by the British King but decided to be governed by themselves
Hence, they become republic under the name of United States of America

ii. French Revolution

This revolution stated that the government should lies in the hand of the people and not the king

-Both revolution promote the idea of self-government by people
-Self-government state leads to the making of referendum which will be used in order to make constitution

c. Popular Sovereignty

-Sovereignty evolves from the Devine Right of kings to Popular Sovereignty

i. Features of Popular Sovereignty

Denial of supremacy on anyone of the organ of the state
State as a whole is sovereign, but it hard to define what is sovereign inside a state, nevertheless, in order to secure the sovereignty, mutual recognition or respect by other state must be obtained
External sovereignty happens when 1 country did not recognized another country sovereignty such as the relationship between China and Taiwan
Sovereignty under international law recognized each state as possessing sovereignty

d. Weakening of the Concept of Sovereignty

Emergence of States Association such as European Union weakening the sovereignty of a country as they make law for the country enlisted with them, but does it represent sovereign body?
Treaties signing lead to a question on whether the state sovereignty has been surrendered or limited when treaties are sign as they are bound by any superior or higher authority in the treaties or agreement

Rule Of Law

Power will lead to sovereignty which will lead to the Rule of Law
Rule of law promotes that no other person shall be above the law, rule are made according to the law, official of the government must be acting according to the law, and fairness justice which mean law based on normative standard must be observed
Before rule of law exist, there was rule of men by men which is upheld by the church
This rule leads to; uncertainty as the decision of the king will not be certain in the judgment of a case, unpredictability as the king's decision cannot be predict, and irrationality as the king is only human and might not give a rational judgment as it can be bias on certain values, tradition or belief
Rule of Law resolves the problem of uncertainty, unpredictability, and irrationality
The need of rule of law comes from the arising capitalist as they prefer to have a certainty, predictability and rationality in a decision that is important for their business
Rule of law guaranteed of provided for; certainty of conduct of officials, security of expectation of conduct, clearly stated rules, rules or laws are prospective and not retrospectives, law is generally applied, coherent clear patent of demand and open to interoperation and not absolute

That's all for now.

Corporate and Partnership Law - Lesson 2

2008-04-22T12:35:00.000+08:00

1. Who is a Partner

Capacity of a minor

A minor can be a partner, nevertheless, the implication of a minor in a partnership will be seen in the contract made by them.
Contract made by minor is void

Tan Hee Juan v Tan Boon Keat
HELD: The effect of partnership entered by and adult and minor is valid

Chan Yin Tee v William Jack & Co
FACT: An adult and a minor formed a partnership. The minor ordered goods from the supplier and when the goods is delivered, he failed to pay for the goods. At the same time when he ordered the goods, he already reached his Age of Majority (AOM), nevertheless, he didn't do anything to terminate the partnership as a minor have an alternative to either terminate or continued with the partnership when they reach the AOM. If they choose to continue, they will be liable for the partnership liability
HELD: The court held that since the minor failed to terminate the partnership after he reached AOM, thus, he is liable for the liability of the partnership

Lovell and Christmas v Beauchamp
HELD: A partner who is a minor is not liable for the firm liability

2. Number of Partners

Section 3(10) of the Partnership Act (PA) stated that, a partnership is a person or persons doing a business in common with a view of profit
Section 47(2) of the Partnership Act stated that the members should not be more than 20 person
Section 14(3)(a) and (b) of the Companies Act stated that for a professional partnership, the members should not be more than 50 person

3. Rules to Determine Partnership

Section 4 of PA portray a situation where element of section 3(1) has been fulfilled but the partnership could not be form.

a. Joint tenancy and tenancy in common

Section 4(a) of PA
Example situation - A land was rented by A and B. Part of the land is rented out by them. The profit made will be divided equally. This is joint tenancy

Davis v Davis
FACT: A father left his 2 sons his business and 3 houses. 2 of the houses were occupied by the son and the other house were rented out. The profit made from the rented house will be divided equally
ISSUE: Whether there is a partnership formed by the 2 sons for the rented house
HELD: The court held that the business left by their father made them partners, bot, for the rented house in relation of income or profit, there are no partnership as there is no element of business

b. Sharing gross return

Section 4(b) of PA
Example situation - A society who held dinner event sell the table to and outsider. The gross profit of the table selling will be divided equally among the committee

Cox v Caulson
FACT: The defendant (D) and Mr. Mill has agreed that the later will provide theater, pay for the lighting and pat they play bill. In return, Mr. Mill will received 60% and the remaining 40% of the gross return will be given to D. Problem arose when the plaintiff (P) was injured when he was accidentally shot by one of the actor during the performance. P then sued D and Mr. Mill claiming that they are partners.
HELD: The D is not liable because he was not a partner pursuance to the Partnership Act 1890 and it is equivalent to Section 4(b) of Malaysia's PA

c. Receipt of share of profit

Section 4(c) of PA
When a person received a profit from a business, prima facie, he is a partner

i. Payment by installment

Section 4(c)(i)
A person received payment from the the profit of a business is not a partner when he gives loan for that purpose of business A creditor getting back from his loan from the partner of the debtor's business does not make him a partner
Example situation - A need to start a business and apply for a loan. Creditor has loan some money to A. A pay back the loan using profit from his business. Even though the creditor received profit from A's business, they are not partner

Badely v Consolidated Bank
FACT: Plaintiff (P) had burrowed certain amount of money from Defendant (D) to construct a railway project. In order to secure the loan, a charged was created. Further, D will charge 10% interest and 10% nett profit derive from the project.
HELD: P and D are not partner even though D is entitled for the nett profit of the business

Pooley v Drive
PRINCIPLE: If the creditor is given a power to manage the business, he is likely to be treated as partner
FACT: B and H form a partnership for 14 years. In order to obtain capital, they opt for a loan from a creditor. However, the creditor was given a share in the partnership
HELD: The court held that, since the creditor was given a share in the partnership, therefore the creditor has a partner to both of them

ii. Remuneration of servant/agent

Example situation - A employed B and pay the salary. If B bring project to A's company, B will received commission from the nett profit of the project. Any payment/commission to B under any arrangement does not made him partner's to the partnership
However, 'salary partnered' is valid so long that it is expressly stated in the partnership agreement as stated Section 26 of PA

Chua Ka Seng v Boonchai Sompolpong
HELD: The court decided that the person is not a partner even though he received salary as there is no clear provision in the agreement

iii. Annuity to widow or children of a deceased partner

The dependant of the deceased partner may received a portion of the profit from the partnership but it does not made them a partner in the partnership

IRC v Lebus's Trustee
FACT: The deceased had leave a will to give a share and profit in the partnership to his wife. Later, the government has imposed tax to the wife on the ground that she is a partner in the partnership
HELD: She is not entitled to pay the tax even though she received share and profit as she is not a partner in the partnership

iv. Loan given to a firm with rate of interest varying with the profit

A person who give advance to any person or firm, who is about to start a business and later received profit from the business does not make him a partner

Re Young ex parte Jones
FACT: Lloyd has given Young a loan for £500. based on the agreement agreed by both parties, Lloyd will received £3 per week from Young, Lloyd will assist in the management of the partnership, and was given a chance to enter into the partnership within 7 months from the date of the agreement. Nevertheless, he refuse to join the partnership
HELD: The court held that, Lloyd is not a partner as he refuse to join in

v. Sale of goodwill

Example situation - A sell his business to B. When he do this, he is not only selling his business, but he is also selling the reputation of the business to B. If A received profit from the goodwill, this will not make him partner to B

Pratt v Strick
FACT: A man sold his practice and goodwill to another professional man. In the agreement, it was agreed that he will continue to received profit
HELD: The court held that, the man was not a partner

4. Relation between partners and third parties

1. Liability of partners for debts and obligation

a. The act must be within his actual or apparent authority

Section 7 of PA stated that every partner is an agent for the partnership (other partner) and his firm
In the Law of Agency, the principle is bound by the act of the agent if the agent acted within his authority
Authority can be divided into 2; actual which can be either express or implied and apparent/ostensible which arises when the partners hold out to the others that he has the authority even though in fact he does not have the authority
Section 10 of PA explain that if the third parties knows that the person has no authority to act as the partners but allowed the dealing, he then cannot sue the partnership
The same principle applied if the third parties knows that there is a limitation impose on the partners but still made a dealing with the said partners

Sithambaran Chetty v Hop Hing
FACT: A and B sells medicated wine, but their partnership was not make public. For the purpose of the business, they entrusted 2 persons to manage the business which is the second defendant (2D) and C. At the same time, members of the public did not know that 2D was not the partners in the business. 2D then burrowed money from the plaintiff (P) using the partnership name. He later absconded. P then sued the partnership.
HELD: The firm is liable because there is no notice that the 2D is not a partner in the partnership. Not only that, they failed to mention that 2D only have apparent authority

b. The act of the partner must be done for the purpose of the partnership or in relation to the partnership business

Chan Kin Yue v Lee & Wong
FACT: Lee burrowed money from his wife for RM35,000. He then issued a receipt to acknowledge that he has received the money on behalf of the partnership. When the partnership refuse to pay back the money burrowed, the wife then sue the partnership.
HELD: The court held that since the money was used to pay the debt of the partnership, the partnership is therefore liable to pay the wife the burrowed money

Osman Haji Usop v Chan Kong Swil
FACT: 3 Malays and 3 Chinese formed a partnership where the 3 Malay did not participate in the business, and this is including the plaintiff (P). The other 3 partners obtain a loan of RM10,000 form a chattier and sign a promissory note in the name of the firm. The particular loan was secured by a guarantor. Since there was a default in the payment of the loan, the chattier sued the guarantor who obediently pay for the loan. Later, the guarantor put the liability on all of the partners. All of the 5 partners accept the liability but P objected, on the ground that the loan was nor obtain for the purpose of the partnership
HELD: The court held that since the money was used for the purpose of the partnership, therefore the partnership and all of the partners are liable for the liability imposed to them by the guarantor

c. The act of the partners must be done in the firm ordinary course of business or in the usual way of business

Bank Of Australasia V Breillat, hold that ordinary course of business are; i. pledging or selling partnership goods, ii. buying goods on the firms name, iii. burrowing money, iv. contracting debts and paying it back, and v. drawing, marking, signing, endorsing, or accepting negotiable instrument
In Beckham v Drake, employment of staff is also falls under the ordinary course of business
In Porter v Taylor, acknowledgement of debt is also common in business

Merchantile Credit v Garrod
FACT: There are 2 partners in a partnership; Parkin and Garrod where Garrod was a sleeping partner. The nature of the business partnership was to provide garage and repairing car. 1 day, Parkin, without the authority from Garrod sold a car which was not belong to them to the plaintiff (P) for £700. The P then sued Garrod and the partnership as Parkin did not have the right to sell the car
HELD: The court stated that action subsided as the act of selling the car is the usual way of business

That's all for now. Sorry for the late entry. Was very busy. Part 4 of above lesson will be continued in the next entry

Contributor wanted

2008-04-16T11:17:00.000+08:00

Students of BLC are welcome to contribute in this blog. Any article review, point of view, suggestion or any other form of information regarding the Law and Commerce may be post in this blog. Do leave your email address at the comment section if you wih to contribute to this blog.

Thank you

Law of Succession - Lesson 2

2008-04-16T09:00:00.000+08:00

5. Characteristic of testator (continue)

Testator can be either partial or total testator which mean that he can either make a will to all of his assets or part of his assets
Section 2 (2) of Will Act provided that the act does not applicable to Muslim as Muslim is govern by the Faraid system
Revocation can be made but only during the testator lifetime

Valid Will

In order for will to be valid, there are 2 elements that needs to be consider; capacity and intention (animus testandi)
Capacity can be further devided into 2; age and soundness of mind
Intention can be further devided into 3; suspicious, mistake and undue influence

A. Capacity

1. Age

The age of a person making a will must be over 18 as stated in the provision in Age of Majority Act

2. Soundness of mind

Sound mind means that a state of a person who understand tha nature of his act
In the case of Bank v Goodfellow, the court stated that soundness in mind must be present at the time of making the will. Sound mind in this case refer to an understanding of the nature of the business which he is engages on
In Harwood v Baker, soundness in mind can be ascertain when the person is at least aware of the other person who may have claim on his estate even if he decide not to benefit them
Burden of proof lies on the propounder who possess te duty to proof that the will is valid under the degree of balance of probability

a. Delusion

Delusion means irrational believe which can't be erradicated by rational argument

Bank v Goodfellow
FACT: The testator was affected by various delusion, particularly that he was being persuit by an evil spirit.
HELD: The will created was valid due to the fact that the interval of the evil spirit is not continously

In Re Bohrman, the court stated that when a testator is unsound in mind, the will that he created can be either partial or wholly invalid as determind by the court
In Ewin v Bennett and In the Estate of Walker, soundness in mind need to be present at the time time the will is created and also, there must be some interval when there is a delusion for the will to be valid

b. Old People/Age

If there is a doubt of the soundness mind of an old people, medical report of their condtion must be obtain from a medical practitioner

c. Drunk

In Chana v Chana, the court held that for a heavy drinker who drink regularly, the will made by them is valid because they are not drunk at all time, thus, the habit of drinking will not prevent the person from creting a valid will

B. Intention

The testator must have the intention to create the will
The testator must have the knowledge of the content of the will
The testator must have approve the content of the will
Determintaion of intention can be seen in the case of Re Khibbs, where there must be a statement of the deseasd wishes for the disposition of his properties upon his death and it is conveyed to the witness

1. Suspicious

If the will is suspicious in the eye of the court/judge after there is an application of probate, the court would not grand the probate
In the case of Barry v Butlin, the court need to make sure that the suspicious is removed before the probate can be granted

2. Mistake

Mistake can be defined as an error in comprehending facts, meaning of words or the law, which causes one party or both parties to enter into a contract without understanding the obligations or results
There must be no mistake when the executor execute the will
If there is a mistake on the will or on the creation of the will, the testatoris siad to not have the testandi/intention
In the case of Re Meyer, when there is a mistake, the court may decide that the will was made without the testator knowledge and approval, thus, can be deemed invalid
Mistake need to be considered on 2 ground; content and document

3. Undue influence, fraud and coercion

In order to make a valid will, the court need to ascertain that the will is not make under undue influence, fraud or coercion
In Hall v Hall, the court decided that there must be no coercion, where a testator may be 'led but nt driven'. This means that the testator may be guide in making the will but not force. Coercion in this case refers to threat or pressure to the testator
In the case of Wilkinson v Joughin, the court stated that fraud happen when the testator has been delibirately deceived by a person or being fraud, thus, the will is invalid

Formalities

There are basically 4 main formalities to be follow in order for the will to be valid
The elements are writing, execution, witness, and attestation

1. Writing

a. Language

Any language as long as it understandable
In the case of Whiting v Turner, the testator was an english man but he made the will in french, nevertheless, the court held that the will is valid

b. Can be type or hand written as stated in the case of Re Moore

c. Writing material

Normally paper will be used but in the case of Hudson v Barnes, an empty egg shell make a valid will, thus any type of material is legible

2. Execution

Means the act of signing by the testator
According to Section 5 (2) of the Will Act, the will can be signed by the testator or by any other person in testator presence
Initial, normal or different type of signature can be used
In the case of In b Savory, initial signing of the will is accepted by the court
Testator may be assisted by a third party in putting his signature as stated in the case of Futton v Kee
The signature need to be put at the bottom of the paper, nevertheless, the law does not prescribe on which part of the document need to be sign by the testator as in the case of Re Stalman
The testaor must be presence both physically and mentally

3. Wintness

Requirement of at least 2 witness that needs to sign the will can be seen in Section 5 (2) of Will Act
There are two views in English cases prtaining to witness signing; at the same time, or deal individually

Re Colling
FACT: Testator was a patient at the hopspital where he asked another patient and a nurse to be his witness when he sign his will. At the time of sifning, the nurse was call to attend another patient. Nevertheless, he continued the signing process with the other witness. Later, when the nurse return, the nurse then put down her signature and acknowledge the will
HELD: The court decided that the will is invalid because the witness need to attend the signature at the same time

Wyatt v Berry
FACT: The testator wanted to make will and that he thought that he only need 1 witness. When the will was made, bth the testator and the witness sign it. Later he find another witness and sign it
HELD: The court said that the probate shall be granted

Witness may sign the will at any place on the will as decided in the case of Roberts v Phillips
In Re Gibson, the court said that even though there is no provision on the qualification of the witness, but a blind witness will make the will invalid as he can't witness the execution by the testator
Under Section 9 of Will Act, beneficiary cannot be the witness as they have the potential interest under the will as stated in the case of Clarke v Bruce Lance & Co
Under Section 10 of Will Act, creditors can't be witness
Under Section 11 of Will Act, executor is not incompetent to be the witness

4. Attestation

The format would be "Sign by above name 'testator' as his last will in the presence ofus the witnesess"
The format acknowledge that the attestation has take place

This is all for now. See you in the next post

Corporate and Partnership Law - Lesson 1

2008-04-15T09:48:00.000+08:00

Definition of partnership

Section 3 of the Partnership Act clearly defines what is partnership
There are basically 3 elements of partnership that can be find in Section 3 (1) of the same act
This elements are; carrying on business, in common, and with a view of profit
The word 'person' in the act refers to both natural and artificial person, thus, both individual and corporation are eligible to form partnership
Partnership need to be form in a contract agreement be it express or impliedly, hence, partnership and contract are closely related
Joint Venture agreement does not necessarily creates partnership.

Ratna Ammal & Anor v Tan Chow Soo (partnership in the form of syndication)
FACT: The contract was made between the parties for the purpose of selling milk. The respondent had obtained the registration of trademark in respect of the milk and other dairy product.
ISSUE: Whether the trademark obtain by the respondent will be vested in into the partnership
HELD: Partnership exist between them but from the agreement, the trademark will remain with the respondent

Chooi Siew Cheong v Lucky Height Development Sdn Bhd & Anor
HELD: To determine whether a partnership exist in a joint venture agreement, it depend on the intention of the parties, hence, in this case the intention was to create a separate business, therefore there is no business in common with a view of profit

Au Yong Wai Choo & Ors v Arief Trading Sdn Bhd
HELD: Section 4 of the Partnership Act will be used in determining whether partnership exist and not exhaustive. To determine the issue, the court will have to considered all surrounding circumstances including written or oral agreement as well as the conduct of the parties

Elements of Section 3 (1) of the Partnership Act

1. Carrying on Business

The law says that to fulfill this agreement, there must be a series or repetition of act which constitute business (continuity in business transaction)
If there is no series of act, then there will be no partnership (Smith v Anderson)
Intention to do business in continuity alone is sufficient to satisfy this element
However in Mann v D'Arcy, the court decide that the only act of buying and selling potatoes was held to be carrying out business in partnership, but the circumstances of the surrounding need to be considered

Keith Spicer Ltd v Mansell
FACT: The defendant and Mr. X plan to have a business in the form of a limited company. Prior to the incorporation, Mr. X order goods from the plaintiff's company (supplier) intending to used it in the company's business. The goods were delivered to the defendant's address. The defendant and Mr. X had open an account in the name of of the proposed company, but the account was never used by them. Mr. X subsequently become insolvent and the supplier sued the defendant for the price of the goods on the ground that the defendant and Mr. X were carrying on business together
ISSUE: Whether parties who get together to form a company will be considered as partnership or not
HELD: The fact that they were working together to set up a company does not make them doing business with a view of making profit, hence, there is no partnership agreement

2. Doing business in common

Business must be made jointly between partners
Alternatively, business can be made on behalf of all of the partners
It is not important to whom handle the business

Checker Taxicab Ltd v Stone
FACT: Taxi owner hired a driver on the basis of daily contract. Based on the agreement, the driver had to bear the cost of running the taxi but at the same time he is permitted to used the facilities of the owner's garage. It was also agreed that the driver had to return the taxi in good condition and pay the owner of the perceantage of the daily income
ISSUE: Whether they are doing a business in common or together
HELD: Even though there is a kind of relationship between the owner and the taxi driver but it did not satisfied the element of partnership

3. With a view of profit

The business must be made for the purpose of making profit
The activity made by non-profitable organization such as for charity does not create a partnership
In the case of Re Spanish Prospecting Co. Ltd, the profit means the parties has to be agreed on the net profit

In conclusion, in order to established partnership, the 3 elements stated in Section 3 (1) needs to be fulfilled. Nevertheless, the surrounding circumstances need to be considered in determining the existence of partnership

Corporate and Partnership Law - Preface

2008-04-15T02:05:00.000+08:00

Corporate and Partnership Law deals mainly with 2 out of 3 branches of business. The area of business that will be covered in this subject are partnership and also company or corporation. Nevertheless, there is a need to view and distinguished between the 3 types of business.

1. Sole Proprietorship

1 person will become the owner of the business
Liability is unlimited as it will be bear solely by the owner, but assets or capital is limited to the owner capability
No continuity upon death of the owner as the business cannot be inherited, upon death, the assets will be distributed under the Law of Inheritance or Succession
Register with registrar of business under Company Commission of Malaysia
Properties will registered under the owner's name

2. Partnership

Minimum of 2 persons with a maximum of 20 persons, but for professional partnership such as legal firm or consultant firm, the maximum would be of 50 persons
Partnership will used the name Firm to their business, i.e: Eastern Consultation Firm
Same registration process with sole proprietorship
No separate legal entities or personality, hence, each partner carries an equal liabilities unless stated otherwise in an express proposition
Profit will also be shared equally

3. Company/Corporation

An association or corporation that has been associated under the Companies Act
Two types of companies; Private Limited that usually has been set up by close friends or family business that dealt with small business and the share is not open to the public, and Public Company that has been set up by a large scale corporation and the shares is open to the public
Characteristic; having separate legal entities between the company and the members of the companies, minimum of 2 directors, and both private limited and public company will have a minimum of 2 persons and a maximum of 15 for private limited and unlimited numbers for public company respectively

Both sole proprietorship and partnership will be govern by Business Registration Act whilst company will be govern by Companies Act. Furthermore, for partnership, it will also be govern by Partnership Act.

In order to master with this subject, as according to Mdm Hamidah, one need to imagine that one want to open a business, thus, the types of business are essential at this stage. She also said that this would be and easy subject but with a wide scope.

Info: practicing lawyer are qualified to be a company secretaries.

Law of Succession - Lesson 1

2008-04-13T21:16:00.000+08:00

Introduction

1. Important of law of succession

Related to the right of property as stated in Article 13 of the Federal Constitution
Related to the freedom that has been given to us, that is to collect wealth which later can be distributed upon death

2. Why Will is needed?

To arrange the distribution of wealth in accordance to the wishes of the testator
To obtain the Letter of Administration (refer to previous post: Law of Succession - Preface or click HERE) will take a long time
Problem in determining the administrator (also refer to previous post) - Problem selecting the administrator and problem in renouncing your right to the chosen administrator

3. What is Will

A will is not a contract as there is no consideration that form it
Legal document that made effective upon the death of the testator
Legal declaration of the intention of a person making the will (testator) with respect to his properties, which he desires to be carried out after his death
It will not interfere with the testator power to dispose his asset during his life as it is only a declaration

4. Characteristic of a Will

a) Valid will/Formality - Section 5 of the Wills Act 1959

In writing, any language as long as its understandable, will not be produced in other form than writing form, not required any stamping and registration
Testator must sign at the end of the document by mean of signature or thumbprint
At least 2 witnesses presence at the time of the signing - although the law allow for the witness to be handle individually
Testator qualification includes that he has reached the Age of Majority which is 18 Years old and above, a person of sound mind, and also free form undue influence and fraud
Witness qualification includes that he sign the will at the presence of the testator (attestation), independent meaning that he is not the beneficiary to the will, ensure that the testator knows and understand what is happening in the will (shows the quality of witness - sound mind and free from undue influence and fraud) and lastly, above the Age of Majority

b) There must be an assets or properties

Assets can be classified as either movable or immovable assets
Properties or assets that cannot be dealt in a will includes insurance policies and EPF as the beneficiary has already been mention in latter of application, joint ownership as mandate gives the right to survivalship means that the right will be given to the other party of the joint ownership upon death, native or religious property such as weapon, swords etc that has been in the family or tribe for a long time, hence, it become the property of the tribe or family and not individually, and lastly hire purchase agreement as the property belongs to the finance institution so long that the payment has not been completed

c) Parties to the will

Executor - person carried out the will
Beneficiary - person name in the will has being some entitlement to the access of the estate
Testator - a person who made will during his lifetime.

Well folks, this is all for this post. Continue in the next lesson

Law of Succession - Preface

2008-04-13T20:35:00.000+08:00

Law of succession is a branch of law that deals with will and the administration of estate in the matter of distribution. There are 10 topics that will be covered throughout this subject.

Introduction of wills
Element of wills
Type of wills
Who can make wills
Type of property
Beneficiary
Revocation
Capacity (testamentary element)
Advantages of wills
Will under Islamic Law

Madam Hamidah has stated that this is a light subject compared to land law. Nevertheless, there is a little connection between law of succession and land law. Furthermore, this subject has been thought or touch in equity and trust 2. Hence, for those who has taken that subject, they will have a light advantages in learning law of succession.

Jurisprudence - Lesson 2

2008-04-13T02:41:00.000+08:00

Other school of jurisprudence:-

1. Relativism

Opinion that is related to certain position (race, nation, economic environment, social, etc)
The opinion is not neutral and only conceptual
Eg: male opinion might be bias to woman

According to Hans Kelsen - Pure Theory of Law, what make the law valid is when it conform to the higher standard norm of authority. For example, in Malaysia, Subsidiary Act need to conform to the Parent Act and the Parent Act need to conform to the Federal Constitution. Nevertheless, there is a problem arising with this theory; what gives the higher norm (Federal Constitution in this context) its validity? The possible answer would be that there are extra-legal or political reality of the country/society that gives the validity to the higher standard of norm.

Relationship Between Law and Politics

A. Common elements

1. Power

Reason for acting
Can be either coercive, brute force or naked power
Ability to effects some person or group or entities in their reason for acting and how they act
Interpersonal power (coercive or economic - resources and wealth give you power, thus, the subordinate become the patronage)
Normative power is a power given by some higher source or authority to be held against other. Norm is the standard of proper conduct, ought proposition that derives from values, tradition, beliefs, habits etc.

Note: that's all for today, continue in the next lesson

Jurisprudence - Lesson 1

2008-04-12T17:02:00.000+08:00

What is Jurisprudence?

Jurisprudence is basically a theory and philosophy of law that has been developed by the scholars of jurisprudence in order to achieve a better understanding of the nature of law, legal reasoning, legal system and legal institution. It was derives from a Latin word of juris prudentia which means "the study, knowledge, or science of law"

There are three mains aspects that has been agreed by the scholars as jurisprudence developed:-

1. Natural Law

God made lawDeveloped through religion
Later evolve to science/euphemism (reason/reasoning – based on sense of right or wrong

2. Analytical jurisprudence

Using analytical approach by asking a lots of question
Question such as ‘What is law?’ ‘What is the relationship between law and morality?’ etc.

3. Normative jurisprudence

Overlaps with moral and political philosophy
Asking what law ought to be

Legal philospophy of jurisprudence cover:-

Seeks to analyze, explain, classify, and criticize entire bodies of law
Compares and contrast law with other field such as literature, economics, politics etc.
Seeks to reveal the historical, moral, and cultural basis of a particular legal concept
Focuses on finding the answer to such abstract questions

Jurisprudence in short can be describe as: -

1. Legal Theory

Perspective on the nature of the law
i.e: whether law is just a rule or its reflect society morality

2. Legal Philosophy

Explores the value implications or referring to something as legal
i.e: whether legality reflects morality, thus, deem to be obey

3. An analytical

Examine contemporary issues
i.e: legality of abortion or euthanasia

Main school of jurisprudence:-

1. Positivism

Reject everything that is metaphysical
Law has got nothing to do with divinity
Law as prescribe by sovereign political authority only
Justice and morality is immaterial as no connection between law and morality

2. Realism

Law is just another name for politics
More radical view of law
Law is what the court decide
Rules, statutes, act of parliament and many other written law is just a mere guide, thus, there are no certainty or guaranteed based only on the provisions unless the courts say so

3. Naturalism

Law as God's rule
Law must reflect eternal principles of justice and morality that exist independent of governmental recognition
Moral philosophy, religion, human reason and individual conscience are also integrating parts of the law
Refer above note

4. Formalism

Proposes law as science
Treats it as math and science
Issues will be resolved by the judges by applying the legal principles

Note: Each word in different colour can be click for further understanding. Do refer to the philosophy section.

Jurisprudence - Preface

2008-04-12T16:54:00.000+08:00

Rules, principle, cases and statutory provision is basically a technical part of laws. It is also known as the ‘Black Letter Law’. This is a form of lawyers’ idea of law. The various issues in law such as the connection betwen law and politic, law and economic and also law and gender issues cannot be dealt only by relaying to law itself. Other medium in interpretation is important in order to decide on this issues of law. This is where jurisprudence came in action. The issues, nevertheless, will only provide a vague answer when it was dealt by jurisprudence alone. Hence, both jurisprudence and law shall work hand in hand in order to achieve certain agrrement towards the decion making process.

Prof. Darbi has said that this is subject is a boring subject and it can be cured for insomnia deceased. I am not making this up as he mentioned it in our class today. Furthermore, he also stated that in order to learn this subject, a person needs to have an open mind as the issues dealt will sometimes touch on sensitivity.