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TAKE HOME EXAMINATION

<MAY / 2022 >

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<LEGAL STUDIES IN PROJECT MANAGEMENT>

NO. MATRIKULASI : < CGS02488717>

NO. KAD PENGNEALAN : <920510126829>
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Contents
PART A QUESTION 1..............................................................................................................2

PART A QUESTION 2..............................................................................................................4

PART B QUESTION 2..............................................................................................................6

PART B QUESTION 3..............................................................................................................8

PART B QUESTION 5............................................................................................................10

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PART A QUESTION 1

To better understand the situation, let us examine the sequence of the situation.
7/10 @ 1515 – Bobo offers to buy goods from Mimi, which Mimi acknowledged at 1518
8/10 @ 1000 – Mimi posted acceptance letter to the offer
11/10 @ 0930 – bobo sent withdrawal letter
11/10 @ 1230 – Mimi acceptance letter reach bobo
11/10 @ 1500 – Mimi read bobo’s letter of withdrawal

Mimi’s argument – contract has been concluded since she has posted the acceptance letter
before bob’s withdrawal

Since this situation is related to a contract between two parties, the applicable law should be
the Contract Act 1950. There are six element that needed to be fulfilled then we can deem
any agreement as a legal contract. The element is consideration, Legal Capacity, Consent,
Intention, Certainty, Legality
Consideration – Bobo used money as a form of consideration
Capacity – Bobo & Mimi are legally able to perform any contract subjected to section 11
Contract act 1950
Consent - Bobo & Mimi are in voluntary mode. Bobo was not threatened to perform the
contract nor does Mimi. Subjected to Section 15 Contract Act 1950.
Intention – There are a clear intention from bobo to acquire goods from Mimi in a form of
written Offer. While when Mimi read the offer from bobo, she had the intention to perform
the offer from bob.
Certainty – Written offer from bob implying that the subject of the contract is clear, and it
shows that the content of the offer understood by Mimi when she wrote the acceptance letter.
Legality – The good were sunflower which is not illegal
If we relate the situation to the element of contract, we can conclude that a contract
agreement has been performed and the legal judiciary might side with Mimi.
However, According to Section 5 (2) Contract Act 1950, An acceptance may be
revoked at any time before the communication of the acceptance is complete as against the
acceptor, but not afterwards.

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Mimi acceptance of the offer was not completed. Mimi’s acceptance letter only
arrived at bobo at 1230 11/20/2021 in which at the same day at 0930, bobo already sent a
letter to revoke his offer. As you can see in this situation, bobo has intended to revoke the
proposal before the acceptance letter arrived to him in which according to section 5(2)
contract act 1950, bobo can revoke the proposal if there are no clear intention from Mimi to
accept the offer. It is true that Mimi’s acceptance letter was posted earlier than bobo’s
revocation letter but according to section 4:
(2) The communication of an acceptance is complete -
(a) as against the proposer, when it is put in a course of transmission to him, so as to be out
of the power of the acceptor; and
(b) as against the acceptor, when it comes to the knowledge of the proposer.
Section 4 (2) (a) – Mimi has the choice to get somebody’s help/guidance on how to use the
fax machine or she could have just sent an email because it’s in the year of 2021 where
electronic mail is widely used
Section 4 (2)(a) – Mimi could have called Bobo to inform him on her acceptance to the offer
made by bob but instead she chose not to while bobo written offer came with a contact detail
for Mimi to utilized.
To conclude my argument, Mimi arguments are invalid as her intention to acceptance
the proposal from bobo were not properly communicated. Bobo has waited 3 days for Mimi
to give response in any kind of channel but did not receive any. It is bobo’s right to revoke
the offer and find another more efficient supplier.

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PART A QUESTION 2

Main character
Ahmad – first disputer representing the group
Chong – The Dog owner
Situation summary
Chong’s dog barking to point that Ahmad’s family resting time are disturbed.
Ahmad reported to JMB & MBSJ, but no action can be taken as Chong didn’t do unlawful
act.
In this situation, where Mr. Chong agree to take some action to reduce the impact of
the dog barking sound shows that he is willing to sit down with Mr. Ahmad and discuss the
matters arise. The suitable Alternative Dispute Resolution in this situation is
COLABORATIVE NEGOTIAION.

The reason why I choose Negotiation as the ADR because Ahmad & Chong are
offering a general solution to the problem, thus indicating that both parties have the desire to
resolve the issue. Due to Chong’s nature of work, it requires him to be working at night and
sleep at day where it is quite hard for the two of them to do a full negotiation to these matters.
Other than that, their proposal was not properly examined and presented to each other in
terms of its implementation, efficiency & realization cost where a proper negotiation between
them should be done. This mode does not require involvement of 3rd party making the process
to be simple and straight forward.

Mode application

The first step that Ahmad & Chong should do is to identify all the concern that they
are having. All those concerns are then listed and used as an agenda in their negotiation
process. Both parties shall agree to set a date, time, and location on the discussion event.
Where in this case, meeting venue at the JMB office should be an appropriate. The day
should be on Sunday 10am because both parties are not working during that day

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Both parties should conduct the negotiation in good faith with the aim to resolve the
dispute. Meaning that, both should acknowledge what is morally right. In this case, Chong
should agree that the dog barking sound brought disturbances to the surrounding community
because not only Ahmad that is complaining but there are several others as well. Ahamad
also needs to know that Chong is not breaking any law here, it just that his capabilities to take
care of the matters are limited to his own because he is living alone. The mutual
understanding of the other party’s situation is essential, the terms ‘put yourself in someone
shoe’ are good example of mutual understanding

Once the essential element is clarified, comes the bargaining process. Ahmad
proposals are not wrong, but it lack efficiency element because it does not eliminate the entire
root cause. Ahmad proposal to build a higher wall are just a method of suppressing the sound
of the dog barking. Furthermore, the process to build an additional structure to replace the
wired fence need an approval form MBSJ. This will prolong the resolution time of the issue.
If we have a look at Chong’s proposal, some of it eliminate the entire root cause. His
proposal to send the dogs to the pet shop when he is away are very good and during his free
time, he can train the dog to bark only to suspicious person instead of anything that is passing
by his house.

Compromise is important during bargaining process as if one party are in competitive

mode where, he only wants his idea to be solutions, the goal of the negotiation will not be
achieved.

In conclusion, Collaborative Negotiation Mode (ADR) are the best in this situation
where it is a straightforward discussion. It aims are to collaborate to find the best solution
rather than findings one’s fault.

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PART B QUESTION 2

The ‘not shop’ owner claim

Section 135 Contract Act 1950 state that,

An “agent” is a person employed to do any act for another or to represent another in
dealings with third persons. The person for whom such act is done, or who is so represented,
is called the “principal”.

First and foremost, let us examine if Alan are legally qualified to be Chang’s agent. Section
137 Contract Act 1950 state that,
As between the principal and third persons, any person may become an agent; but no person
who is not of the age of majority and of sound mind can become an agent, so as to be
responsible to his principal according to the provisions in that behalf herein contained.

Referring to Section 137 Contract Act 1950, Alan has the qualification to act as
Chang’s Agent. In this situation, there are no description of Alan being minority and in
insane state of mind. Alan’s act to sell goods below Chang’s set expectation to Annie and
Amelia does not justify he is no in his right mind. Chang’s did not rise the issue of Alan’s act
to defy Chang’s order which resulting there are no action should be taken to Alan as long as
Chang does not dispute over this case.

Section 136 Contract Act 1950 sate that

Any person who is of the age of majority according to the law to which he is subject, and who
is of sound mind, may employ an agent.
Chang’s without doubt are qualified to be the principle and has the authority to appoint
whomever it may that is not crazy and is in allowable legal age.

To summarize, Alan and Chang’s are both legally qualified to have the principles and agent
legal relationship which voiding candy’s claim that Alan is not qualified to conduct business
transaction because Alan is not the principle.

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The contract valid claim

The offeror – Candy

The offer – Jewelry in exchange for RM3500
The argument – Upon realization that the jewelry sold to Alan is worth more than RM 3500,
Candy insisted to take back the jewelry, but Chang refused to return it.
Bear in mind that we are already established the fact that Alan & Chang are legally
qualified as the Agent and Principle. The only matters left here to examine is Chang’s claim
that the sales of good contract are valid between the Alan and Candy.
There are three elements to be fulfilled to justify that a sale of goods is a valid
contract. The three element which was extracted from Sales of goods Act 1957 are
consideration, Goods and Agree to transfer the goods.
In this situation, without any external coercion, candy has offered to sell the jewelry
to Alan. According to Section 4. (1) Sales Of Goods Act 1957,
A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the
property in goods to the buyer for a price. There may be a contract of sale between one part-
owner and another.
In return Alan have to give her RM3500 as the payment to candy’s requested price. The
money here are the form of consideration where all sales of goods must be done with only
money as its consideration.
Referring to section 2 Sales of Goods Act 1957, it states that,
In this Act, unless the context otherwise requires-- "buyer" means a person who buys or
agrees to buy goods; "delivery" means voluntary transfer of possession from one person to
another; goods are said to be in a "deliverable state" when they are in such state that the
buyer would under the contract be bound to take delivery of them.

Where, Alan is the buyer when he agreed to pay for RM3500. Candy is the seller which she
voluntarily selling the jewelry to Alan, and she have delivered the goods upon receiving
payment form Alan.
To conclude this situation, I will say Chang and Alan are in the right side of law.
Because Alan and candy have fulfilled the element in the Sales of goods act 1957 for it to be
a valid contract. The offer from candy is a form of agreement to transfer the goods to Alan.

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The price RM3500 requested by candy are a form of consideration and lastly the existence &
presence of goods during the transaction.

PART B QUESTION 3

In 2012, Construction Industry Payment and Adjudication Act 2012 was introduced to
govern the construction payment dispute. Imagine an act that was provisioned just to manage
one element in project life cycle, from this, we in general can guess how big of an issue
related to payment is in construction industry. This usually happen when there is no
certification issued by Superintending Officer (S.O) or by the S.O Representative. This could
lead to years of dispute and often involving large sum of money. The CIPAA 2012 are an act
that can be used shall the project principals are refusing to pay certain portion of work done
in construction site no matter the reason so long as there are proof of work done. This act
shall only be applicable within Malaysia and the contract agreement are done in writing.

Section 5 (1) CIPAA 2012 state that any unpaid party are eligible to claim from the
principal. This allowing the contractor to pursue non-paid progress payment from the
principal. The first step that the claimant should be done is to submit the claim for the non-
paid claim to the non-paying party. The submission of the document should follow as what
have been sated in Section 38 (a)(b)(c)(d) CIPAA 2012 where notice & document shall be
sent during office hours to the receiver usual place or last known address its registered post.
Claim document shall contain the following item as provisioned in Section 5 (2) (a)(b)(c)(d)
which is:
1. The amount of claim that the claimant wished to claim from the principal including
the due date of payment from the principal
2. The reason why the uncertified work has been conducted. This can be found in the
contract drawing or Engineer/Architect Instruction (E.I / A.I). In some cases, if there
is no E.I / A.I from the consultant firm, proof such as picture, Request For inspection,
Delivery Order and minute meeting can used. Claimant such find the logical material
that can be accepted by the court system.
3. The description of work shall be included in the written document. This can be found
in the method statement approved by S.O or S.O representative.
4. Statement that the claim is made under the CIPAA 2012

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The non-paying party should be assumed to be disputing the claim shall the non-
paying party fails to give any response within 10 days stated by section 6(4). When this
occur, the claimant is allowed to initiate to legal action to the principal based on Section
8(1) CIPAA 2012. If the claimant intended to initiate the legal proceeding for the dispute,
the non-paying party shall be served with notice of adjudication. The description of the
dispute and any supporting document shall be attached to the notice to be served to the
respondence, referring to section 8 (1). After 7 days, the claimant shall give notice to the
director of KLRCA. KLRCA should do the nomination and appointment of adjudicator.

The decision shall be made by the appointed adjudicator. The adjudicator shall
consider all presented fact and do a thorough investigation to the matters. This may
include site visit/meeting. The adjudication decision shall be within 45 working days. If
the decision is on the respondent favor, then there should be no next action, while, if the
decision is on the claimant favor, then the respondent is instructed to initiate payment.

To conclude, CIPAA 2012 are provisioned to protect the legal right of the principal
and claimant. The party which in the wrong side of justice shall admit to the decision of
the court.

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PART B QUESTION 5

Baby Justin (hereafter know as BJ) Vs Happy Entertainment Ltd. (Hereafter known as H.E)

After reviewing the case, it is understood that there is legal contract agreement
between two parties. The possible remedies that can be applied to this case is ‘Damages’
Referring to section 74. (1) When a contract has been broken, the party who suffers by the
breach is entitled to receive, from the party who has broken the contract, compensation for
any loss or damage caused to him thereby, which naturally arose in the usual course of
things from the breach, or which the parties knew, when they made the contract, to be likely
to result from the breach of it.

The provision of this section allowing the injured party to get compensation from the
breacher
Let’s have a look at the detail of the task that have to be performed by the acceptance.
1. Baby Justin must perform 4 songs, one of it are Love you x3000
2. Justine must perform the love you x3000 with Alicia Lock

The complication begins when Baby Justin fallen sick and refuse to continue the show.
The impact of baby Justin action is that:
1. Happy Entertainment Ltd reputation are tarnished
2. Some of Attendees are requesting for a refund.

Referring to Damages Remedies definition, Happy Entertainment Ltd is entitled to be

compensated by Baby Justin. The compensation shall be subjected to the loss received by
H.E.

Damages done to the Happy Entertainment Ltd

1.Reputational damage (unquantifiable)

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Since the loss is unquantifiable, compensation such as nominal damage can be applied but we
don’t want to opt to nominal damages as BJ can be paying as little as RM1. Reliance Loss
can be applied to this situation. Where, the aim of Reliance loss is to put the plaintiff in
position where if the plaintiff does not enter the contract, their reputation will remain
untarnished. The compensation form that can be requested from the defendant are:
a) Public apologies from BJ specially to His fan & H.E for what has happened and
explaining why he did not perform the remaining of the song. This will give a closure
to the fan and stop them from attacking the H.E. This will put H.E reputation back to
its place. Who knows the fan might take back the refund request if they hear apologies
from BJ.

2.Financial Damages

Should the dan decided to request for a refund through legal means, if it happens that the
court allowed the fan to get their refund, then there will be direct damage done to the
company financial status. H.E should then calculate the total amount of money needed to
refund to the fan. Refund receipt shall be kept and filed as evidence of loss because the court
will want a proof of the financial loss to be presented.

However, according to Section 75 Contract Act 1950, state that the plaintiff only able to
receive compensation not exceeding the valued sum. This should be enough to cover the
financial loss due to the company.

To conclude my writing, Happy Entertainment Ltd are advice able to proceed with
legal action to recover its reputation and the finance lost shall Baby Justin fan insist on
refund. There is law within Malaysia to manage this kind of dispute specifically Section
74(1) Contract Act 1950.

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