Summary
1. The creation of a binding contract that the courts will enforce requires the contracting parties to meet a number of requirements that are prescribed by the law of contract. While these requirements are not numerous, they must, nevertheless, be met before the agreement creates rights and duties that may be enforceable at law. These requirements are referred to as the elements of a valid contract and consist of the following:
a. An intention to create a legal relationship – Though the Contracts Act 1950 is silent on the question of intention to create legal relations, there seems to be no doubt that a vital requirement of a valid contract is that the parties must have the intention to enter into such a relationship.
b. Offer – a view of obtaining the other’s assent to the act and ready yo be bound by a promise by the other
c. Acceptance – final expression of assent to the terms of a proposal
d. Consideration – the promise must give something in return for the promise made by the promisor.
e. Capacity to contract – everyone person who is competent to contract is free to contract upon such terms as he thinks fit.
f. Certainty – The parties must express themselves so that their meaning can be determined with a reasonable degree of certainty
2. Section 3 and 5 of the Civil Law Act 1956 provide for the application of English Law unless “other provision” has been or shall be made by any written law. These provisions are statutory rules that tell us when and where English Law may be applied as a binding authority. When using the section 3 and 5, firstly we will need to determine whether there exist a Malaysian written law (e.g. legislation/delegated legislation) on the topic. If there is, then English laws cannot be applied and only Section 3 can be applied. In Section 3, it only has Common Law Rules and Rules of Equity. It has a Cut off Date which means after this date English Common Law Rules and Rules of Equity no longer binding. If there is no written
a. An intention to create a legal relationship – Though the Contracts Act 1950 is silent on the question of intention to create legal relations, there seems to be no doubt that a vital requirement of a valid contract is that the parties must have the intention to enter into such a relationship.
b. Offer – a view of obtaining the other’s assent to the act and ready yo be bound by a promise by the other
c. Acceptance – final expression of assent to the terms of a proposal
d. Consideration – the promise must give something in return for the promise made by the promisor.
e. Capacity to contract – everyone person who is competent to contract is free to contract upon such terms as he thinks fit.
f. Certainty – The parties must express themselves so that their meaning can be determined with a reasonable degree of certainty
2. Section 3 and 5 of the Civil Law Act 1956 provide for the application of English Law unless “other provision” has been or shall be made by any written law. These provisions are statutory rules that tell us when and where English Law may be applied as a binding authority. When using the section 3 and 5, firstly we will need to determine whether there exist a Malaysian written law (e.g. legislation/delegated legislation) on the topic. If there is, then English laws cannot be applied and only Section 3 can be applied. In Section 3, it only has Common Law Rules and Rules of Equity. It has a Cut off Date which means after this date English Common Law Rules and Rules of Equity no longer binding. If there is no written