Chapter 1 CONSTRUCTION LAW IN MALAYSIA.ppt

8/10/2019 Chapter 1 CONSTRUCTION LAW IN MALAYSIA.ppt

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INTRODUCTION TOMALAYSIAN

CONTRACT LAWMdm. EMEDYA MURNIWATY BINTI SAMSUDIN

Dept. of Building and Construction,

Faculty of Civil and Environmental Engineering

office room location:Room No 15, MB, Level 1, FKAAS

Email: [email protected]

[email protected]


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1.0 INTRODUCTION TOMALAYSIAN CONTRACT LAW

Chapter content:

1.1Definition of Contract/Law1.2Elements and Classifications of

Contract

1.3Motive of Contract

1.4Sources of Contract Law


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What is Contract ?


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1.1 Definition of Contract/Law

What is Contract?

The Contract is normally a massive and complexdocument.

A contract is any promise or set of promises madeby one party to another for the breach of whichthe law provides a remedy.

A contract represent a legally bindingagreement between two or more persons ...(Adam Epstein, 2008)


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Other definitions

..A legally binding agreement made between two or moreparties, by which right are acquired by one or more to acts orforbearances on the part of the other or others .

(Sir William Anson)

.An agreement giving rise to obligation which are enforceor recognize by law. The factor which distinguishescontractual from other legal obligations is that they are based

on the agreement of the contracting parties.(Treitel, 2003)

A promise or set of promises which the law is enforce

(Sir Frederick Pollock)


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An Engineering Contract Dictionary defines acontract as..

.A binding agreement between two or more

persons which creates mutual rights and dutiesand which is enforceable at law

Section 2(h) Contract Act 1950 (Act 136),hereinafter called the Contract as.

.Contractis an agreement enforceable by law


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General Principles (Contract):

1. All contract must bebuild upon an agreement,not all agreements are automatically acontracts.

2. A contract consisting of an offer andacceptance. (Therefore, at least two parties arerequired; the offeror-makes an offer; and

offeree-accepting the offer.)3. The promise or promises made (the contract)

may be express (either written or oral)or maybe implied from circumstances.


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Five (5) Characteristics of law :-

1. It is abody of rules or commands set by asuperior being (i.e. the state) to govern an inferiorbeing (i.e. an individual)

2. The rules of commands can be inwritten orunwritten form;

3. The source of these rules or commands areessentially custom and legislation;

4. The rules or commands arebinding on themembers of the community or state;5. Enforcement is through appropriate

sanctions, ie fines, imprisonment, etc.


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Article 106(2) of the Federal Constitutionholds the word Law to include.

1. Any Written law,

2. Any common law in so far as it is inoperation in the Federation or any partthereof, and

3. Any custom or usage having the force oflaw in the Federal or any path thereof.


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Law is not a Fact

1. Fact is an event. On the contrary, law is aprinciple;

2. Though law is conceived, fact is actual;

3. Practically, law is a rule of duty. Fact isthat which has been according to and incontravention of the rule.


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1.2 Elements & Classifications ofContract

FIRM OFFER/ PROPOSAL

UNQUALIFIED ACCEPTANCE

CONSIDERATION

INTENTION TO CREATELEGAL RELATIONS

CERTAINTY OF TERMS

LEGAL CAPACITY TOCONTRACT

FREE CONSENT

LAWFUL OBJECT AND

CONSIDERATION

PHYSICAL/ LEGALPOSSIBILITY

VALID/ ENFORCEABLE

AGREEMENT/ CONTRACT

+

+

Basic Elements Of A Contract


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Nine (9) Basic Elements of a Contract1. A clear or firm offer or proposal;2. An unqualified acceptance of the offer/proposal;3. Intention to create legal relations: both parties must show an

intention to enter into legally binding agreement;

4. Consideration: each party must contribute something inreciprocation of the others promise;

5. Certainty: the terms of an agreement must be certain or capableof being certain;

6. Capacity: the party must have legal capacity to contract;

7. Consent: the parties must contract with free consent, ie consentmust not be obtained by fraud, misrepresentation, undueinfluences, etc;

8. Legality: the contract must be formed within the boundaries ofthe law, eg its object or consideration must not be unlawful;

9. Possibility: the contract must be capable of performance bothphysically and legally.


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Two (2) broad classes of Contract:

1. Contract by Deed

Formal legal document signed, witnessed and

delivered to effect a conveyance or transfer ofproperty or to create a legal obligation of acontract.

2. Simple Contract

Informal contract and may be made in any way-writing, orally or implied from conduct.


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Other Contract classifications:-

Bilateral Contract (2 way contracting)

Unilateral Contract (one way contracting)

Void Contract

Voidable Contract

Unenforceable Contract

Express Contract

Implied Contract (hidden contract)


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1.3 Motive of contract

Motive is an idea, belief, or emotion that impelsa person to act in accordance with that state ofmind.

Contract documentation consisting certain

allocations with signatures and witnesses. Contractual parties- right and responsibilities All contract are build upon the basic premise of

the meeting of minds, the idea of assent and

agreement as to do the same thing.


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1.3 Motive of contract

Protecting the contracting parties-puttingthe terms of agreement in a writing that clearlyand expressly states exactly what intend to do,the obligations of all parties, any terms of

compensation, and what happens in the event ofa dispute. Objective/theory of contract:

When determining the existence of a contract or itsinterpretations, courts used a legal principle referredto as the objective theory of a contract.

Courts consider what the reasonable person wouldhave thought under the same or similarcircumstances.

The general rules: special meaning to a terms, shouldhave defined somewhere in that agreement.


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1.4 Sources of Contract law

Modes of Categorizing Law:

1. Content basis (i.e. substantive law andprocedural law)

2. Its Sources (e.g. written law and unwrittenlaw)

3. Specific branches per its enforceability (i.e.

public law, private law and internationallaw).


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Categories of Law

Per

Content

SubstantiveLaw

ProceduralLaw

Per

Sources

WrittenLaw

UnwrittenLaw

Per

Enforcement

Public Law Private LawInternational

Law

Defines rights anddutyStipulate sanctions

Lays down rules toset process of law

in motionE.g. Arbitration

ConstitutionLegislation

Customary LawCase Law/JudicialDecisionCommon Law/EquitablePrinciples


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Legal sources of Malaysian Law

WrittenLaw

ConstitutionalLaw

LegislationSubsidiary/delegated

Legislation

Unwritten Law

JudicialDecisions

ApplicableEnglish Law

CustomaryLaw

Syariah Law

FederalConstitution

StateConstitution

Acts ofParliament

State Laws(Ordinances/Enactments

Delegated byActs of

Parliament.E.g. UBBL,etc.

Case LawDoctrine ofState Decisis/JudicialPrecedent

CommonLawEquitablePrinciplesStatues ofGeneralapplication

NativeCustomsTradeCustoms/Usage

Known as MuslimLawApplicable to thosepractising IslamicFaith


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Federal Court

Court of Appeal

High Court of Malaya

SessionsCourt

Juvenile CourtMagistratesCourt

PenghulusCourt

Syariah Court

High Court of Sabah &Sarawak

Sessions Court

Magistrates Court

JuvenileCourt

NativeCourts

SuperiorCourts

SubordinateCourts

HIERARCHY OF MALAYSIAN COURTS


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1.4 Sources of Contract Law

What is Construction Law? Construction Law is neither a legal term of art nor a

technical one. It is used to cover the whole field of law which,

in one way or another, affects the constructionindustry Appears all encompassing, subsuming Building Law

and Engineering Law.

Sources Broadly categorized into:

Written law; and Unwritten law.


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1.4 Sources of Contract Law

Construction Law

Building LawEngineering Law

TYPES OF LAW ONENGINEERING/CONSTRUCTION

WORKS


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ATTENTION!

Collection for Contract andEstimation Teaching Module.

Each student must pay RM14/personto the Class Representative

Module is Compulsory forEVERYONE. PHOTOCOPY ISSTRICTLY NOT ALLOWED
http://www.google.com.my/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=gw1my8UPqSmI4M&tbnid=PNlVcAMQxgetvM:&ved=0CAUQjRw&url=http%3A%2F%2Fwww.tumblr.net%2Ftagged%2Ffalling%2520action%3Flanguage%3Des_ES&ei=GcU1Uvu1IoKqrAeXmoGgCw&bvm=bv.52164340,d.dGI&psig=AFQjCNH37iU4mvy2eMGo3wa-ILh9WaIUFg&ust=1379341945187506


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Thank You

End of Chapter 1

Documents

Chapter 1 CONSTRUCTION LAW IN MALAYSIA.ppt