1. What are the principles under the doctrine of binding precedent?
When it comes to deciding on case, judges do not decide solely on their own. They are bound to follow certain accepted principles which are commonly known as “the doctrine of binding precedent”. The doctrine of binding precedent required that “like cases decided alike”. If a case now before the court has facts and raises issues similar to those of a previously decided case, then the present case will be decided in the same way as the earlier one. In this way, the earlier case, referred to as ‘a precedent’ will have provided a legal basis on which the latter case and subsequent cases could be decided. Generally, lower courts are bound to follow the decisions of courts higher than them in the same hierarchy. If the judge fails to follow a binding precedent, the decision of the said judge will be legally wrong and it may be reversed on appeal or overruled in a later case. Below is how The Doctrine operates in Malaysia.
The court system in Malaysia, was last restructured by the Constitution (Amendment) Act 1994. The present court structure, which has been in force since then, is as follows : * The Federal Court stands at the apex of the Malaysian court system. It is headed by the Chief Justice. * Below the Federal Court is the Court of Appeal. This court is headed by the President of the Court of Appeal. * Below the Court of Appeal are two High Courts with co-ordinate jurisdiction. One is the High Court of Malaya which serves Peninsula Malaysia, while the other is the High Court of Sabah and Sarawak, which serves East Malaysia, i.e. Sabah and Sarawak. Each of the High Courts is headed by a Chief Judge. * Below the High Courts are the Subordinate Courts, the highest of which are the Sessions Courts, each of which is headed by a Sessions Court Judge. * Below the Sessions Courts are the Magistrates’ Courts, each of which is presided over by a magistrate. Parallel to the Magistrates’ Court is the Juvenile Court (Court For Children) which is also presided over by a magistrate. * In Peninsular Malaysia (West Malaysia) there are provisions for Penghulu’s Courts below the Magistrates’ Courts. These are headed by a penghulu or village headman. He has very limited jurisdiction and usually deals with local disputes in an informal manner. However, in practice, these courts hardly function. * There are also the Native Courts and the Syariah Courts. These courts operate only at the State level. The Native Courts exist only in Sabah and Sarawak and they deal with native rights while the Syariah Courts deal with matters pertaining to Islamic law in the respective states.
2. Does silence amount to acceptance? Kindly support your answer with evidence.
Silence does not necessarily indicate that there is acceptance. However, there are exceptional instances where silence may amount to acceptance itself. The rationale behind this general rule is based on the idea that acceptance must take some form of objective manifestation of the offeree’s intention though some form of positive action. This is to ensure that no one should be able to enforce a contract upon an unwilling party. Based on Section 3 of the Contract Act 1950 provides that acceptance must be made in the manner prescribed by the offer. However, based on Section 7(b) of the Contract Act 1950 states that when the acceptor deviates from the prescribed manner, the offeror must not keep silent. If he does so and fails to insist upon prescribed manner, he is considered as having accepted the modified manner. For instance, refer to the below case of Felthouse v. Bindley (1826)
Case : Felthouse v. Bindley (1826) 11 CB (NS) 869; 142 ER 1037
* The plaintiff had discussed with his nephew, John, on the purchase of a horse belonging to John, and wrote to him, offering to buy his horse and added, “If I hear no more from him, I consider his horse is mine at £30 15s”. However, John...
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