malaysian legal system sources of law english law part 2 s5 cla

SOURCES OF LAW:English Law (Part 2)

English commercial law

Historical background: 2nd RCJ Regina v Willans: Whatever law

enforced in England in 1826 becomes part of the law of the Straits Settlements.

The cut-off date is 1826.

Straits Settlements Civil Law Ordinance 1878

Civil Law Ordinance 1878 was introduced into the Straits Settlements.

Section 6 provided for the continuous reception of English commercial law.

“the law to be administered shall be the same as would be administered in England in the like case at the corresponding period…”

CLO 1878 overruled Regina v Willans.

--origin of S 5 CLA

Section 5 Civil Law Act 1956

Section 5: Application of English law in commercial matters

(1) In all questions or issues which arise or which have to be decided in the States of Peninsular Malaysia other than Malacca and Penang with respect to the law of partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life and fire insurance, and with respect to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.

(2) In all questions or issues which arise or which have to be decided in the States of Malacca, Penang, Sabah and Sarawak with respect to the law concerning any of the matters referred to in subsection (1), the law to be administered shall be the same as would be administered in England in the like case at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by any written law.

Effective dates

Subsection (1): All states of Peninsular Malaysia except Malacca and Penang

To apply English commercial law at the date of the coming into force of this Act (i.e. 7 April 1956 is the cut-off date)

Subsection (2): Malacca, Penang, Sabah and Sarawak

To apply English commercial law at the corresponding period.

There is no cut-off date. Reception is continuous.

“the law to be administered”

“the law to be administered shall be the same as would be administered in England in the like case”

Allows a wider reception of English law.

Allows even the reception of statutes or written law into West Malaysia.

(Note that under S 3, only common law and equity apply in West Malaysia.)

Proviso

“unless in any case other provision is or shall be made by any written law”

Reception of English commercial law is subject to local statutes.

“with respect to mercantile law generally”

Definition of merchantile law

“The law on buying and selling merchandise”

Per Wood J in Vulcan Match Co. v Herm Jebsen

Nagurdas Purshotumdas

“A whole body of law…which are of particular importance to persons engaged in trade and commerce”

Selling sugar. Done in Singapore. Delivery from Java to Bombay. Resp did not pay so appl brought an action

for breach of contract to recover the money.

Resp counterclaimed for damages for late delivery of goods.

Appl reason for late delivery: Requisition of ships by British

government. This was empowered by two British

Acts: Defence of the Realm (Amendment) Act

1915 Courts (Emergency Powers) Act 1917

Issue:

Whether the two statutes(i.e. the Defence of the Realm

(Amendment) Act 1915 and the Courts (Emergency Powers) Act 1917)

are part of merchantile law generally.

Court of Appeal:

Court of Appeal: No, the statutes are not part of

merchantile law. Therefore, the appl’s defence was

struck off and the appl was liable for the late delivery.

Privy Council:

Privy Council allowed the appeal. The question here is a question of

sale. The law of sale is part of merchantile

law. If the situation was in England, then

the two statutes could be pleaded.

Lord Dunedin: “it is not the ‘merchantile law’ but ‘the law’

which is to be the same as the law which would be administered in England in the like case.

The first thing to be settled is: ‘Has a question or issue arisen in the Colony with respect to – here follow the enumerated departments of law and then come the general words and with respect to merchantile law generally’? Now the question here to be decided in the Colony is a question as to the law of sale. No one can doubt that the law of sale is part of merchantile law.”

“if the same question as to sale had to be decided at the same time in England, it is clear beyond all doubt that the above cited statites of 1915 and 1917 could be pleaded…”

Implication from Nagurdas case:

Any Act that has a connection with merchantile law will be covered by the term “with respect to mercantile law generally”.

Therefore, the Act will have its application under section 5 of CLA.

Shaik Sahied v Sockalingam Chettiar

An

Issue: Whether the Moneylender’s Act

applied in Singapore as “merchantile law generally”.

Privy Council: Yes. But disapproved the decision in

Nagurdas. The approach to determine whether

the English legislation was merchantile law wasto look at the nature of the legislation.

However, the Court did not enforce the Moneylender’s Act in Singapore because it was unsuitable and ‘impossible of performance in the East’.

(Note: S5 does not have a proviso of the same effect as S3. however, the Privy Council in this case implied such a proviso in S5).

Sale of Goods Act 1957

The Malaysian SOGA

Low Hock Jee v Mayban Finance [1996] 2 CLJ 479

Sale and purchase of a car. The car was subsequently forfeited by customs.

Issue: whether Malaysian SOGA 1957 applies in SS?

Court: “.......The Malaysian Sale of Goods Act 1957 is not

applicable to Sabah and Sarawak. By reason of Section 5(2) of the Civil Law Act 1956, reference has to be made to … the United Kingdom Sale of Goods Act 1979, being the law applicable to

Sabah and Sarawak…”

Heng Long Motor v Osman [1994] 2 MLJ 456

(Sarawak) Sale and purchase of a car in 1983. The issue was which of the three statutes apply?

UK SOGA 1979 UK SOGA 1893 Malaysian SOGA 1957

Court: Since the transaction took place in 1983, by virtue of s 5(2) of the Civil Law Act 1956, the law applicable in Sarawak for the purpose of this case was the UK Sale of Goods Act 1979 and not s 12 of the UK Sale of Goods Act 1893 or s 14 of the Sale of Goods Act 1957 (West Malaysia).

Tan Chong v Alan McKnight [1983] 1 MLJ 220

(Penang) A contract was entered into between

18/5/73 t0 6/12/79. Court: the applicable statute was UK

SOGA 1979.

Section 6 Civil Law Act 1956

Section 6 -- Immovable property

“Nothing in this part shall be taken to introduce in Malaysia or any of the States comprised therein any part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any estate, right or interest therein.”

Chin Choy v Collector of Stamp Duties [1981] 4 MLJ 47

UMBC v Pemungut Hasil Tanah Kota Tinggi [1984] 2 MLJ 87

In both cases, the courts held that there was no room for importation of English land law.