What matter most

Utusan Malaysia, Ahad November 2, 2008

Fatwa yoga diumumkan Jumaat ini
KUALA LUMPUR: Majlis Fatwa Kebangsaan akan mengeluarkan fatwa mengenai hukum senaman yoga - yang dikhuatiri boleh memesongkan akidah, Jumaat ini.
Menurut Ketua Pengarah Jabatan Kemajuan Islam Malaysia (Jakim), Datuk Wan Mohamad Sheikh Abdul Aziz, fatwa itu dibuat selepas kajian mendalam dilakukan selama enam bulan mengenai perkara itu dan setelah tiga kali perkara itu dirujuk kepada panel Majlis Fatwa Kebangsaan.

I would suggest the National Fatwa Council to discuss the more important topic such as money creation, fiat money system and fractional reserve system which the present islamic finance and banking is operated in this system.

I dare say that I did not trust the Banks Shariah Council or Central Bank Shariah Council. Most of them received handsome pay from the bank, thus forget about their true role. How can you allow someone borrow RM300,000 end up by paying RM643,000. May I ask you what is the RM343,000 for?

I challenge the shariah council each one of them to resigned today.

Financial Crisis Weird Signal

1) Hot topic discussed during teh tarik session at Mamak restaurant yesterday is about the current financial crisis.
2) Interestingly our topic of discussion does not centered to why the crisis happen and how to the government is handling the crisis, but looking at different perspective, about the 'WEIRD SIGNAL' that this current financial crisis is sending to us? (I'm not really sure how we end up discussing this topic?)
3) To summarize, among the weird signal that market is sending in this financial crisis to us is that the commodities is no longer the safest place to put our investment during the stock and financial crisis. In '97 financial crisis, many people switched their shaky investment in stocks and assets to the commodities to store value, where the commodities act as the buffer and yield during downturn in assets and stocks porfolio
4) Second is the downslide effect in the price of gold, we consensusly agreed it should be the other way around. During the crisis, the gold price is normally sky high and people will normally switch their investment into gold to buffer their losses from the market uncertainty, but unfortunately in this current financial crisis this does not happen.
5) Third, the market bubble effect. People may looking forward to this period, because everbody will making money. But, the after effect issue is more devastated. The crisis will occur when the bubble is burst, like the subprime market bubble burst recently. The 97 Asian Financial Crisis is also due to the after effect of bubble burst in the market. Is there any way or system or mechanism, that we can avoid the bubble from develop. We think, it is wise if we do not allow the market to develop the bubble, because the impact is more worst than good.
6) The bail out scheme promoted by the US as we remembered clearly, when Malaysian Government begin to bail out the Malaysian companies during the '97 Asian Financial Crisis, we were critic badly by the western countries especially the US. We were accused of not being transparent, saving the big boys and cronies etc etc., but the move later appeared to be a success.
7) And now, the US government is following the same, by announcing the US$700 billion bail out incentive package. Suprisingly the market did not buy it.
8) We think, the US$700b is nothing to compare with the trillion dollar market that is affected
9) Second, the US$700b package did not specify who will getting the benefit most, market believe it will go to the big boys, friends and families. The real problem does not being addressed i.e the ordinary citizen who is affected most, which lost their property and become homeless. The ordinary people problem should be addressed first.
10) Third, how come the Lehman Brothers and many others before them, is allow to failed; but not AIG. Suddenly everybody is concern of the systemic effect if the US government allow AIG to failed. Who is inside AIG, who connected to who?
11) This is among the reason that we explored last night and I'm sure there's may more reason of why this US$700b incentive is a failure and the market does not buy the idea.
12) The extent and reach of this present financial catastrophe is yet to be seen. No one is sure how far it will go and to what extent. Only time will tell.

FRACTONAL RESERVE SYSTEM

1. Before explaining about the fractional reserve system (FRS), it is worth mentioning about the history of banking, how it came to its existence.

2. Long time ago, people traded using barter which later evolve to many kind of method, until finally come the age, where the gold were used in trading activity.

3. The right to issue the gold lies in the hand of monarchy ie the King. The King will instruct the goldsmith to mint gold into a form of coin. This coin will be used in daily economic activity in the country.

4. The goldsmith is appointed as the King gold keeper and producer. Everytime the King need gold, he will request from the goldsmith.

5. The use of gold in all economic transaction, later made as the King doctrin of law. Everyone wishes to do business in the country is require to use the gold.

6. The function of the goldsmith is basically to produce the gold and also as the store keeper of the gold for King's behalf. The goldsmith has to ensure that gold is safe and the supply of gold is sufficient at anytime should the need arise for the King and country.

7. When the country economic activity became more advance and complicated due to prosperous economic development, the function of Goldsmith is also expanded to not only keeping the King gold but also keeping ordinary people gold as well. People started to trust the goldsmith because it is proven the gold is safe under the care of the goldsmith. For this service goldsmith will take the service charge from the gold depositors.

8. The goldsmith has become the gold keeper for the people to keep and withdraw their gold whenever neccessary. This is the role of the present bank, today, the same role of goldsmith is played by the bank in the present economic system.

9. When economic activity become more complex, the need for larger transaction arise, thus the used of gold in more complex and bigger transaction appears difficult to handle, because the gold is too heavy to be carried around and not safe.

10. To avoid this problem, the goldkeeper come up with a brilliant solution idea instead of using gold they issued the paper receipt to represent the gold to execute transactions. This paper receipt will act as the medium of exchange. This paper receipt stored value according to the gold price it represent in the goldsmith safe. Who ever keep the paper receipts is entitled to claim the ownership of the gold at equivalent value at any time.

11. Everyone happy with this solution, including the King. Eventhough, the new introduced paper receipt is not well accepted by public at that time, but later were forcely accepted by the public when the King buy the idea (under the advice by the goldsmith), and issued a new doctrin as the new law for the country.

12. It is indeed the best solution for the heavier gold. People start accepting the paper money, which later on consensusly called money in the financial term. In America and most part of the world, this money is called a legal tender.

13. By this time, the goldsmith is now known as the 'bank'. Through the experience, the bank notice that at any one time, only certain volume of gold is withdraw by the depositors from the bank through the exchange of the money (paper receipt). The rest of the gold is sitting pretty in the bank doing nothing.

14. The bank feel this lazy gold (assets) should be utilised for the bank to produce more profit and wealth. To unlock the value of these lazy asset, the bank introduced the first fractional reserve system (FRS) in the economy.

15. How the FRS work is very simple, the first keyword is FRACTIONAL and the second is RESERVE.

RESERVE SYSTEM

16. The RESERVE mean, the bank is require to maintain certain level of deposit money at any one time. The require minimum level shall be determine by the Central Bank according to the average withdrawal activity.

17. The bank will maintain certain level of deposit amount and the rest is allowed to be loan out to the borrowers (personal or corporate borrower). When this money is loan out, the borrowers is require to repay back the principal together with the interest charges. Through this way, the bank will be able to unlock the value of the lazy assets.

18. Based on the current example, the bank minimum reserve requirement is ranging from 4% up to 15%. This reserve requirement is mainly to ensure the depositors withdrawal activity is fulfil. The 4% to 15% is basically the average withdrawal transaction activity in the bank at any one time.

18. Say if Bank A reserve requirement is 4%, for the total deposits of $100mil, only 4mil remain in the bank, the rest $96mil is loan out to the borrowers. This is why, in the case of Northern Rock in the UK, the bank collapse simply because it was unable to return the depositors money simultaneously, because the bank only keep at the minimum reserve level. The Bank of England has to save the bank, by pumping in more money in order to return depositors money.

FRACTIONAL SYSTEM

19. The fractional system gives right to the bank to create money. The money is basically an electronic money or accounting system money. The money which does not exist physically but virtually on the computer system.

20. Say, for reserve requirement of 4% and total deposit money of $100mil, the new money can be created is $2.5billion. From $100mil, the bank suddenly has $2.5billion of money.

21. This newly created money is meant for borrowing and loan purposes. Should the $2.5b money is loan out with an interest charges of 7%, imagine that the bank will make $182mil of interest charges gain from the borrowers on top of $25b principal loan that need to be repay by the borrow. All this is create out of nothing but the gain to the bank is real hard money. The one who suffer most is the borrowers like us.

22. This cruel FRS works in our system intelligently without us even notice. Our financial system is design to collapse from day one. So it is not suprising that today financial system is about to collapse in the scale that we waiting to see. When the electronic money become too huge in the system overpass the real physical money circulated in the system, it is like an overturn pyramid design teetering to collapse.

23. Our today financial system is controlled by the people inside the Federal Reserve. The intelligent mastermind who control the world. Ever heard of BASEL I and II, this are their legislated law, who protected them forever. All countries in the world in a way were forced to signed the agreement, any country who resist become their enemy.

24. No one in this world is spare by this evil, we are working for them, we are slave to them.

OUR WORLD

1) We were taught that money stored value, a unit of account and act as a medium of exchange. This is what have been taught in the class room in university days.


2) Unfortunately, today this is not the case. We are living in the fiat money system, where the money no longer stored value and far from being the medium of exchange.


3) In fiat money system, money no longer backed up by commodities (normally gold) and money is traded as if it is the commodities. Today money does not represent anything, it just a piece of paper.


4) Originally money is only a legal tender or paper receipt, where people use as a medium to exchange the gold with foods or any human neccessities. People use receipts because gold is heavier, and not suitable to be carried around especially involving larger transaction. To avoid this people introduce paper receipts which later made a legal tender.


5) Imagine you require a pair a shoes, you will use the paper receipts issue out by the bank in equivalent value to the gold you deposit in the bank earlier. Say, that for one coin of gold you deposit in the bank, the equivalent value is $100, therefore bank will issue paper receipt for $100 value. With this $100 value of paper receipt, you will carry in your wallet to shop around to get the pair of shoes and other necessities.


6) When everyone in the world start using this paper receipt, consensusly people start accepting this method is infact easier to execute everyday transactions and the solution to the heavier gold. People start calling this receipt as MONEY.


7) After purchasing a pair of shoes at $100, the MONEY has now changing hand to the seller, in exchange for the pair of shoes that you take home. The seller will go to the bank to reedem the $100 money with your coin of gold deposited earlier in the bank, thus the ownership of the gold coin is now transfer to the seller.


8) This is the true spirit of money, used before and should be used forever. However, today money circulated in our economy does not 100% back up by gold, especially in the US. The US Dollar infact has no value, because there is no gold to back it up. As the former Prime Minister Mahathir quoted in his blog chedet.com, US is a bankcrupt nation. The Federal Reserve issue money at their own will for their own interest.


9) The rightful responsibility to issue money should lies in the government hand, however the US government delegate this important power to the Federal Reserve. It should be issued directly by the Treasury Department. To make thing worst, the Federal Reserve does not even owned by the US government. The Federal Reserve is own by a group of smart bankers (bank cartel) who manipulate the law to their advantage.


10) JD Rockefeller and Morgan family, is the true owner of Federal Reserve, which later evolve through time spinning around to the few big boys who owned the World. It does not matter who control the US government, as long the power to print the money stays with them. Who control the MONEY is actually own the world not the US government. The US government control the World because they allowed it to happen.

11) The Federal Reserve is perceived by the public to issue the money upon the instruction of Senate. This may be true, but look carefully, if you care to read, they actually is the one who suggest what to do in the crisis. When crisis arises, the government will look for them for a solution not the treasury department.

12) Ever came across to your mind, where the US$700 billion package announced recently would come from, when everyone knows US is the bankcrupt nation. Does the gold reserve in the Federal Reserve increase out of sudden. Does the gold fall from the sky out of sudden.

13) When they print the money, apart from no gold reserve to back it up, the Feds make the profit called seigniorage profit which is the difference from every US Dollar face value issued with the cost of manufacturing and distributing the dollar.

14) This new money issued by the Feds, will be loan out to US government attached with the interest charges. The US government will never be able to pay this debt, because the debt keep on balloning and never paid. This mean each American citizen is indebted to the Federal Reserve.


15) Originally the US Dollar currency, like other majority currencies in the world has gold reserve to back it up, but when the demand for dollar is high, the Feds has to print it more and more to fulfill the ever increasing demand, bacause the dollar is worldwide accepted and highly used. When the demand is high, the Feds issue the money without gold reserve to back it up, since the gold is not easily available, accessible and in short supply.


16) The Feds job is much more easier, when no one is questioning the gold reserve issue, everyone thought that the Feds has already had the gold before they issue the money.


17) When the money in circulation become too many, the value of money is halved. They say this was caused by the time value of money effect, because $1 value you keep today will not be the same with $1 value, 2 years later. The truth is the value of money is diluted everytime the Feds pump in the money in circulation, forcing us to buy less with the same value of money. This is inflation.

18) Our money have been stolen right infront of us, without us even notice. The money value in or wallet is getting less and less, everyday.

19) This is the real story of what is happening in OUR WORLD. If you care to read this article, you do not have to believe me totally, but for our future generation sake, do your own research, MASTER THIS TOPIC. This is a continuous learning objective, the more people understand this dubious scam in our financial world, the easier the financial reform effort and support could take place. This is not the struggle of alone but together we would be able to change the World or at least at our very own nation and community.

UNITEN factor

Pagi ni one of my friend, ex-uniten student teruk diperli rakan-rakan sepejabat dek kisah tuduhan liwat DSAI. Ini kerana si pengadu yang dikatakan diliwat oleh DSAI adalah juga bekas pelajar UNITEN. Reaksi spontan rakan saya itu, katanya si pengadu adalah seorang "drop-out" iaitu gagal menamatkan pengajian di UNITEN. Maklumat ini ada juga saya terbaca di blog-blog politik.

Kalau benar dakwaannya, saya bersimpati dengan kesengsaraan yang dialaminya.
Cuma kemusykilan saya yang belum terjawab adalah:

1. Kebolehan beliau menyewa kondo RM7000 - RM15000 sebulan. Ini kerana, pengadu juga dikatakan tidak mempunyai kerja tetap (hanya sukarelawan), dan tidak dibayar gaji bulanan yang tetap.

2. Kenapa tidak melawan masa nak dikerjakan. Mustahil pemuda berumur 23 tahun tak boleh melawan penyerangnya yang berusia lebih 60 tahun. Atau perbutan tersebut memang direlakan, jadi tak susahlah si pemangsa melunaskan tuntutan keinginannya. Atau mungkin mengumpan pemangsa untuk pendapatan?

3. Mampu ke lagi DSAI, memandangkan umur beliau sudah menjangkau lebih 60 tahun dan ditambah pula sakit tulang belakangnya yang agak membimbangkan.

4. Adakah laporan tersebut dibuat dengan rela atau benar dakwaan beliau ditangkap oleh polis. Sekiranya ditangkap mungkin ada unsur "duress" atau kalau dengan rela hati, mungkin juga DSAI yang main wayang.

5. Penglibatan TPM dengan pengadu. Setakat gambar, bukti tidak cukup kukuh, lebih-lebih lagi di zaman serba canggih. Gambar mudah dipalsukan. Pertemuan yang kerap dikatakan di antara pengadu dengan TPM dan isteri, percakapan perlu dibuktikan oleh DSAI.

6. Bagaimana polis nak membuktikan bahawa pengadu benar diliwat DSAI. Setidak-tidaknya kesan air mani, bulu kemaluan atau lain-lain bukti. Saya teruja nak lihat apakah bukti kali ini yang akan dikemukakan oleh pendakwaraya. Adakah sekali lagi kita dapat lihat tilam diusung keluar masuk mahkamah. Adakah TS Ghani Patail yang akan menjadi ketua pendakwa dalam kes ini, sedangkan beliau adalah orang yang didakwa DSAI terlibat dalam mengubah bukti kes tahun 1998.

7. Adakah KPN akan dibenarkan terlibat dalam penyiasatan kes, sedangkan beliau adalah salah seorang yang didakwa terbabit meminda bukti kes. Kalau di negara-negara yang lebih maju, pegawai polis yang terbabit tuduhan, akan diberikan cuti sehingga siasatan selesai. Ini kerana, ditakuti sekiranya beliau masih lagi bertugas ketika siasatan berjalan, dikhuatiri beliau mempengaruhi siasatan. Lebih-lebih lagi, yang disiasat adalah yang mempunyai jawatan tertinggi dalam pasukan polis.

Sehingga persoalan-persolan ini dijawab, saya tawakal, semoga negara ini dilindungi oleh Allah Taala dan sebahagian besar rakyatnya masih dirahmati dan disayangi Allah. Insyallah.

Takut ALLAH turunkan bala, seperti di Acheh. Masyallah.

Your money no good here!

In my younger days, i use to buy sweets from A'Beng shop.
Being the only chinese family in my kampung, the shop... is the whole kampung blood line.
As I remembered correctly, at one time during CNY, when A'Beng shop closed for 3 days, it become a total disaster to the whole kampung. We have to travel to the next 'pekan' or town 22 kilometers away for a supply.

To cut the story short, what i remembered most about A'Beng shop ...well .. we always get the free sweets. You know why? Well ... I dont really have the answer to that. But sure did, everytime we wanted to pay for the sweets, A'Beng would said "Your money no good here lo.." and not to mention his sweetest smile that I would never forget.

Nowadays, you won't get free things no more? You have to pay even to pee ? You want to give charity also you have to pay! I wonder, if I could or my chidren perhaps, having a chance to meet the A'Beng in our community, before I could close my eyes.

CONTRACT OF AGENCY

.The law of agency is based on a relationship between principle (P) and agent (A)
.Principle and agent there is an agreement, actual relationship
.There is a contract, when somebody employs an agent, there is a contract of agency

.Q: What is contract of agency?
.A: Contract of agency is a contract whereby a contract known as principle appoints another known as agent to react on behalf of principle in return for payment known as commission. The agreement between principle and agent is a contract of agency

.Reason for appoint agent
1) time
2) skills and expertise
3) own way to expand business
4) allow principle to extend his business beyond physical limit
5) remain secrecy, confidentiality of identity

.The role of agent to bring the third party and principle together.
.When agent is appointed, agent is appointed with:
1. General power – agent will do everything on behalf of principle
2. Specific power – sometime agent appoint with specific power, agent in real estate, agent appoint to sell a house, so, the agent power is selling a house (very limited, general and specific power)

.The power is given to agent known as scope of the power
.As long as agent acts between the scopes of his power, the principle is liable and bound by the option by the agent.
.If the agent act intra-vires (within his power), the principle will be bound
.If the agent act ultra-vires (outside his power), then principle will not be bound or liable
The agent will have to assume personal liability

.How do we create an agent?
The relationship of agency may arise in any of these four ways:
1) expresses appointment
2) implied appointment
3) necessity
4) ratification

Expressed Appointment
principle express to agent to appoint him as an agent


Implied Appointment
3 ways:
a. Common law
b. Doctrine of estoppel
c. Section 7 partnership act

a) Common law
- under common law, wife still stay with her husband is consider as an agent of the husband (implied agent)
- She can buy goods and necessity by using the husband credit or money
- The husband will bound by what his wife buy
- This rule will not apply if:
i) the wife is given sufficient allowance
ii) if the husband has instructed to retailer or shop not to give credit to his wife
iii) If the expenditure is far exceed what is reasonable and unparticular and if it not commensurate with the husband income

b) Doctrine of estoppel
- the oldest doctrine in English law
- most widely use doctrine
- When somebody create impression
i. that something is true and the other person belief
ii. that impression and act on it
iii. then that person creating that impression (who exerts) will stop by the law from deny that impression (exertion)


Agent by ways of necessity
- An agent must been given a task to do
- In process to perform a task, he come across problem, and the issue is so stressing that he need to take an agent step in order to protect his principle interest and the step he has taken is an unauthorized action (ultra-vires).
- The way for the agent to avoid the liability is by claiming necessity
- Example:
i. Abu appoint KTM to send vegetables from Penang to Singapore
ii. The journey delay about 3 to 4 days due to flood
iii. KTM took immediate steps to sell the vege in Ipoh for lower price
iv. Original role : transport agent
v. In Ipoh: sales agent
vi. The principal suffer lost because the vege were sold at lower price
vii. The principal sue agent for the losses
viii. The act of selling is cover by necessity, if successful in establishing necessity, the scope of KTM is enlarge from transport agent to sales agent
ix. If the person can prove that the commission of the act was done by way of necessity, he will escape of personal liability

Three conditions must comply in order for necessity to be successful?
1) The agent must have attended or try to communicate with the principle for further instruction but somehow was unable to get the principle
2) The agent must have taken in good faith to prevent further lose to the principle or to mitigate or to lesser the potential loss to the principle
3) There must a situation of commercial agency

Case:
Great Northern Railway v Swaffield
- GNR is an agent to transport horse by train from one place to another
- When arrived destination, no one came to claim the horse
- The company decided to keep the horse at a special place
- The next day, the owner come and collect the horse
- The Company gives 2 bills to him, bill on transportation and bill to keep the horse
- The owner refuse to pay the second bill
- Court: Principle has to pay the bill because 3 condition apply
i) the company had tried to communicate with principle for further instruction
ii) the action taken to prevent further losses to the principle
iii) situation of commercial agency

Springer v GW Railway
- Consignment of tomato from one place to another
- The journey postpone because of strike
- Due to his GWR reload the tomatoes and sell it at lower price
- Springer claims of lose of profits against GWR
- GWR could not claim necessity because GWR did not inform the principle of the situation
-

Agent by way of ratification
- ratify means an act of legalizing a previous action which was originally unlawful
- Conditions:
- Conditions:
i. Before ratification, the agent must act ultra-vires
ii. The principle must have full information about the act which need to clarify
iii. The agent must have acted on behalf and in the name of principle

Case:
Keighley Maxted v Durant
- did not brought the name of the principle
- the principle could not ratify the action

iv. There must be competence principle at the time the ultra-vires act was done and at the time it was to be ratify

Case:
Kelner v Baxter
- A company was about incorporated
- While waiting, the promoter bought the hotel on behalf of the company
- The agent act –ultra vires
- When the company finally incorporated, the company ratifies it
- Court: - This was impossible because the act was done
- there was no principle (the principle does not incorporated yet)


v. Ratification must not injure the interest of the 3rd party

SALES OF GOOD ACT (SOGA)

.The primary law covering the sales of goods is SOGA 1957 (Rev1989) – primary source of law
a) SOGA 1957
b) Common law

.Peninsular Malaysia uses Sales of Goods Ordinance 1957
.Penang & Malacca state apply Sales of Goods Act 1893 (an English Act)
.For Sabah and Sarawak is Sales of Goods Act 1893 (an English Act)
.In 1989 the ordinance upgraded to be an act and called SOGA 1987 which apply to Penang and Malacca, leaving Sabah & Sarawak.
.Purpose of SOGA to regulate the transaction between Buyer and Seller
.Condition: Breach of contract will entitle to terminate the contract, claim for damages. The act introduce of implied condition and warranty.
.There are 5 implied conditions imposed by the act (Section 14, 15, 16 & 17)
.Implied terms is an attempt to protect consumers
.The scheme of consumer protection: Look at implied condition in total is a scheme of protection.
.Whether or not agreed to include to the contract, the law will implied this condition in the contract.

Section 14
Implied condition is to title

Section 15
Implied condition dealing compliance description

Section 16
Two implied condition:
a) merchantable quality
b) fitness for purpose

Section 17
Implied condition compliance with sample

SECTION 14
The seller must have the goods title to the goods
If the contract of sales between buyer and seller review that the seller not has a title to a goods, then the seller has breach the contract
Case:
Rowland v Divall
- buyer bought car from seller
- after 3 months, discover that the car has no title
- Buyer terminates the contract because of implied condition to the title


SECTION 15
. Goods sold must conform to the description given
. Implied condition to description due to transaction based on description given by the seller, eg. Catalogs, tv, internet, brochure
. The good deliver do not correspond to the description, the buyer have power to terminate the contract

Case:
Beaie v Taylor
- Buyer advertise a car for sale
- Described the car as 1961 model
- Buyer belief heavily on the description
- Buyer bought the car and discovers that only half is 1961 model
- Seller breach the implied of description

SECTION 16
. Two implied condition – merchantable quality and fitness for purpose
a. Merchantable quality is very difficult to define. Quality is good enough to restrict
b. Fitness for purpose is implied condition. Actually sec 16 does not automatically impose and implied condition as the fitness for purpose under sec 16.
. There is NO implied condition as to fitness for purpose
. Unless the seller is in a business of selling goods of that nature and the buyer rely heavily on the skill and judgment of the seller.

Case:
Grant v Australian Knitting Mills
- Grant enter a department store looking for underwear
- The underwear choose by Grant is made by wooden
- He bought the action under section 15 and 16.
- Court decided under sec. 15, because did not answer the description, breach implied as to description
- Under sec. 16, the underwear is not fit for the purpose

Priest v Last (hot water bottle)
- A hot bottle sold to buyer
- Put in hot water, close it tightly, about to use it, the hot water bottle explode
- Buyer relied on the skill of the seller to choose the product
- This case implied condition of fitness of purpose

Frost v Alylesbury Dairy Company (fresh milk)
- Supplied fresh milk
- Frost family drink contaminated milk and died of typhoid
- The contaminated milk is not human for drink, fitness for purpose

Khong Seng v Ng Tiong Kiat Biscuit Factory
- Khong Seng supply shortenings (fatty acid) to biscuit company
- The shortenings was very low quality, infect that is not suitable for making biscuit
- Ng Tiong refuse to pay for the shortenings
- Fall under fitness for purpose

SECTION 17
. The goods sold must correspond to the sample

EXEMPTION CLAUSE

· Normally included in the contract to avoid one party escape his liability under the contract
· Prepared by stronger party (client) – contract of adhesion “just follow, take it or leave it”. You don’t have choice but to subscribe to the contract
· Example 1: buy a house, no freedom of choice, terms has been dictate by the seller
· Example 2: parking at your own risk – law allow it based on idea ‘freedom of contract’. You r free to park or not to park there, no one force you. At the parking ticket there is always statement stated ‘management will not responsible if car stolen or loss’. Management uses the exemption clause to escape from obligation or liability
· If the exemption clause in the agreement and u sign the documents, then you are bond by the exemption clause.
· But what if clause is not in the contract, are the party signed bond? Law has involve overrules principle to regulate and control and even determine the validity of the exemption clause.
· Exemption clause rules:
1. The Rule of Notice

Principles :
· An exemption clause can only valid if it is brought to the attention of the other party before or at the time the contract is made.
· If the rule is not complying, then the exemption clause will not be valid

Case:
Olley v. Marlborough Court Hotel
- Mr and Mrs Olley register as guest of the hotel, given key of the room
- Put their belonging and go for a walk
- When returned, they found some of belonging and expensive fur coat is missing/stolen
- They brought the issue to management of the hotel to claim for damages
- Hotel management denied paying because there is an exemption clause state that the hotel is not responsible for any losses and put in a notice in a room.

Court:
- The exemption clause is not valid because the contract was made at the counter and the exemption clause is not brought up to them when they made their registration, so, they can claim damages.
- Notice came after the contract, the agreement is not valid.
- Any agreement must be brought to the attention to the party before or at the time the contract is made (to let them to make a choice whether to stay or not).

2. The ticket rules

Principle:
· An exemption clause found in or on any part of a ticket, shall not treated as valid
· A ticket is not a contractual agreement
· A ticket is not a contract, but is evidence that the contract is exceeded
· Ticket is subsequent of the contract, ticket come after contract

Case:
Parker v South Eastern Railway
Chapelton v Barry Urban District Council
· Exception of this rule if the airplane tickets because the terms in the ticket is a part of the contract

Malani Nathan v Malaysia Airline
Thornton v Shoe Lane Parking
· Thornton drove in multilevel parking space, when he press a button, the bar rise up and he drove in and park his car at second floor.
· The exemption clause was put at 3rd floor.
· Something happen to the car
· He sue the parking management
· The exemption clause should put before the entrance corner to make sure that they have the choice to park
· Shoe lane parking said there is no contract between Shoe lane parking and Thornton

Court:
A contract can make through machine


3. Contra Proferentum Rule/Rule of Interpretation

Principle:
If the exemption clause contains any ambiguity in terms of scope, extent, impact, the words used, the law would interpreted the exemption clause in favor of the weaker party and against the stronger party

Case:
Curtin v Chemical Cleaning

4. The rule of inconsistency

Principle:
· If a subsequent oral statement is inconsistent with the written term of exemption clause, then the written exemption clause will be treated as it amended by the oral statement.
· Court would interpret that inconsistency in the way that would favor the weaker party

Example/Case:
· There is notice (exemption clause stating that management will not be responsible for any damages or lost of things) at a corner of the car park.
· X noticed the exemption clause and he park his car
· X remove his valuable thing from car and at the moment wanted to lock the car, X saw Z (worker) and approach Z. Z say don’t worry that it is safe to keep the stuff in the car and nothing will happen.
· X left is belonging and when came back his belonging is missing.
· X make complain but management said they not liable because of the exemption clause

Case:
Mandelsohn v Normand
Curtis v Chemical Cleaning & Dying Company

· A lady take her cloths for dry cleaning, when received receipt she saw exemption clause and ask the girl who is on duty.
· The salesgirl said, only if the beads spoilt
· When lady came back to pick up her cloths she found that the color had changed
· Court: The exemption clause had been amended by the oral statement by the salesgirl

Court:
There is inconsistent between the oral statement made by worker and the exemption clause.
Inconsistency in the agreement, so, oral statement will be taken. X can claim damages.


5. Rule of Negligence
Principle:
· Contract can be seen from the perspective of right and duty
· Contract between A and B, A paid RM100,000 to B to built a house
· In the perspective of right:
> A has the right to received the house
> B has the right to received RM100,000

· In the perspective of duty:
> A has to pay RM100,000
> B has to built the house

· When a party has an obligation on the contract, he must discharge his obligation.
· A breach of contract is when one party unwilling or unable to perform the obligation under a contract. The other party can claim for damages
· When somebody has perform his duty then he is said to be relief from the contract

Method discharge of contract
1. By way of performance
2. By way of novation
3. By way of waiver
4. By way of rectification
5. By way of frustration

CONTRACT

CONSIDERATION

· An agreement without consideration is not a contract
· Under common law, a contract is binding because there is consideration; view the contract as an exchange of promises
· Consideration is the price we pay for the promise, nobody made promise freely
· Example 1: A promise B, to give RM1000 for washing his car, A not bind to his promise unless B has given his consideration
· Example 2: A set an agreement with B agreed to sale a house for RM300,000. Both parties are bind i.e. contract by their promise
- A want to sell house to B
- B want to give RM300000 to A for a house

What make A bound?
· A promised is bound by B consideration.
· B has promise to give RM300000 to A because A promise to give away his house
· A & B are bound by their promises, therefore, a contract exists
· However, A promise is not binding if it is not supported by consideration
· A contract of both parties are bound by consideration
· Consideration is the center of a contract
· Only when there is consideration, the contract becomes binding

Bare promise
· Promise that is not binding because there is no consideration (nudum pactum)


Principle of consideration
1) Consideration may not be adequate but it must be sufficient

Q: How to distinguish between adequate and sufficient?
A: Adequate means it relative to quantitative aspect
Sufficient means it related to qualitative aspect

Example: Ali own a house value RM100,000. Ali willing to sell a house to Babu for RM1000. This is a valid contract because RM1000 is sufficient for the seller

· Even-though, there is no fraud, misinterpretation or duress we may view that the amount paid for the house is not adequate.
· However, under Malaysian law when the consideration is went far (not adequate) below the actual values of exchange, this would alert court to investigate whether the other party consent has been free
· If the court is satisfied the consent is voluntary or free then the contract would be ahead, despite the inadequacy of the consent

Case:
Ghappel Co. Ltd v Nestle Co. Ltd

2) Consideration must be real and off-value
3) Mere performance of assisting duty is no consideration unless what has been done was over and above that required by the duty (above the demand of the duty).

Case:
Hartley v Ponsonby
· Remaining crew member is seriously unhanded
· All the crew member share the workload
· There was consideration because very serious unhanded

Example:
One night while two policeman on patrol, there is a girl who come home late and was afraid. She asked one of the policeman to accompany her home. When arrived at the girl house the girl promise to give RM50 to the policeman the next day because of his kindness. The action of the policeman is considered as consideration because over and above the demand of his duty

Glasbrook Brothers v Glamorgan Country Council
- The fireman is called to put out a fire (performance of his duty)
- Because the house in havoc condition the owner of the house ask the fireman to guard his house and promise to pay them for their service (over and above duty demand)
- So, the fireman can ask for the money because the consideration occurs

Ward v Byham
- A man and a women live together and they have child out of a back lock
- Later both had quarrel and the man left the women
- The man promise to pay child support allowance every month to the women if the women promise to look after the child well and the child always happy
- After several months, the man stop pay the allowance
- The women bring the case to court and order the man kept the promise
- Under English law, if a man and a women have a child out of back lock, it is the duty of the mother to look after the child
- There is no consideration because there is the duty of the mother to look after the child
- However on the day of the trial, the child look very happy and thus the court rule that even it is the duty of the mother to look after the child, but it is not her duty to make the child happy (the consideration is to make the child happy), so the man has to pay for the child support allowance.


4) Past consideration is not consideration
· Situation where consideration may not present (exceptional situation) are mention in Sec 26 contain three (3) exceptional situation where consideration may not be present the agreement still a contract

· Section 26 (a)
- a promise in writing register under the relevant law if any make between two parties in near relation to one another and for reason of natural love and affection, then the promise is binding (confined to family arrangement)
i) a promise made in writing
ii) between 2 person standing in near relation
iii) make on an account of natural love and affection
iv) register under the relevant law
- Near relation is blood relation and according to the personal law
- Under the Chinese culture law, foster children will have blood relation with the foster father side and not the foster mother side
- Example:
Husband promise to his wife to give her a house. The promise made in writing.
3 years later the wife reminded her husband about it, but the husband ignores the statement.

- In this case, consideration does not exist, exception of consideration also not valid

· Section 26 (b)
- a promise to compensate someone who has voluntary done something for the benefit of the promisor or someone who has voluntary done something which was the duty of the promisor to do so (duty –impose by law as well as moral duty and contractual duty)
- Example 1:
- A park his car at one place and discover that his car is given a good wash and polish by B without A desire
- Therefore, past consideration exist and B cannot claim under section 26 (d) because A is not bound to it.
- However B can claim from A under the exemption principles, Section 26 (b) because a promise made by A to compensate B who has voluntary done something (wash A car) that benefit A
- Example 2:
- A goes outstation for 3 weeks and ask B to look after his house
- B promise to do so
- On 2nd week, he saw a letter from income tax department and the letter notify he has 7 days to pay the tax of RM50,000 of he will be arrested
B paid the amount on behalf of A and told A about it when A return for oversea
- A promise to pay the money back to B but later refuse to do so.
- B can claim under Sec 26 (b) because B had done something that benefited A, which was the duty of the promiser (A) to do, pay taxes.


· Section 26 (c)
- stated if a promise is made to pay statute bad debt, then this is valid contract
- Under the common law a debt under the “statute barred debt” mean that the statute or limitation a person may only recover its debt between 6 years.
- After 6 years cannot recover the debt anymore and the debt becomes statute barred debt
- For land is 12 years
- Example:
- A gives loan to B eight years ago amount RM300k
- After 7 years only, A found out that B owing him RM300k and sent notice for B to settle the debt
- B is not bound to this request but if B promises to pay back then B is bind by contract [bound under Section 26(c)].
- 6 years from the time it discover from the accident

Kekuatan dalaman perlu diperkasa

Semalam dalam harakah daily ada menyebut YB Mukhriz, minta Pak Lah letak jawatan kerana kejatuhan 5 negari ketangan pembangkang. Nasib baik Wilayah tak de DUN, kalau tak wilayah pun kira jatuh ketangan pembangkang juga. Tapi kira jatuh le tu.... so bermakna 6 negeri terlepas dari tangan BN.

Mungkin perhimpunan Agung UMNO akan datang jadi lebih panas.. atau ahli-ahli UMNO terus menjadi pak angguk dalam parti ... menjadi hang setia kepada pemimpin, walaupun terbukti rakyat rasa report card dia hancusssss.... kita boleh tengok lah tunggul-tunggul kayu tu secara live dalam TV nanti .... atau memang dah takde dah LIVE dalam tv lagi Perhimpunan Agung UMNO.

Kalau ikut record YB Najib, dia memang tak akan lawan ketua punya .... kita tengok je la siapa nak lawan Pak Lah... YB Muhyiddin memang tak lawan sebab die orang Pak Lah.. siapa ye... tungguu... YB Ku Li boleh kut ..caya lahhhh...
Tapi apa-apa hal pun, rasanya KJ lah manusia yang paling goyang skali sekarang ni.
Kalau Pak Lah takde, silap haribulan rasanya ramai orang dalam UMNO sendiri nak siat-siatkan kulit dia...muahhhaaaa.... YB Mukhriz mesti lawan die punya ...caya lah lu YB..go YB ..go YB.

Tapi apa-apa pun yang terjadi, selepas perhimpunan.... kalau ada pertandingan... yang kalah kena terima, rapatkan barisan balik dan bersatu, kerana banyak agenda yang belum selesai.

Agak-agaknya le, pemimpin-pemimpin BN ni boleh ke jadi mesra rakyat sikit... jauh benor rasanya dengan rakyat.... semua bila berkuasa, nak kena nampak kaya, senang.. maneeee rakyat nak dekat kalau macam tu... Hina bebenor le rasa teman dengan mereka, maklum le teman ni orang susah ... :)

Cemassssssssss

Kerajaan BN dapat 140 kerusi, pembangkang 82 kerusi.
Walaupun BN tak dapat 2/3 iaitu 148 kerusi, mereka dapat lebih 127 kerusi untuk simple majoriti.
Ini bermakna, pembangkang perlu kurangkan 14 kerusi BN untuk menidakkan simple majoriti tersebut.
Ini mungkin pembangkang boleh dapat di Sarawak, sebab di sana tidak ada UMNO, cuma ada parti-parti yang bernaung dibawah Barisan Nasional. Tambah lagi mereka belum pernah ada wakil dalam Kabinet.
Mungkin kerajaan persekutuan yang baru ini boleh memikirkan untuk menarik 2 atau 3 orang wakil MP dari parti komponen di Sarawak ke dalam kabinet, kerana kerusi mereka sememangnya penting dan untuk mengelakkan mereka tidak menyertai parti pembangkang yang for sure menjanjikan mereka kedudukan yang terbaik jika mereka menyertai barisan mereka.
Bagi mereka yang berkenaan cepat-cepatlah bertindak apa yang patut!!!!

Doa buat Pemimpin

Apa sudah jadi...apa sudah jadi....... apa sudah jadi........
mengapa ini terjadi,
semalam aku duduk dibelakang kerusi empuk kereta Mercedes dan punya pemandu,
hari ini aku pandu mercedes ku sendirian tanpa pemandu ku.
semalam aku rasa selagi aku dalam UMNO, mana mungkin aku jatuh
rupanya hari ini aku tersungkur macam nangka busuk.
semalam aku rasa bangga kerana dapat title YB
hari ini tiada title YB, esok lusa orang akan lupakan aku
Semalam aku duduk banglo besar mengalahkan istana sultan, 5 orang gaji, kereta besar, beribu pengikut,
Hari ini semua dah tiada. Nak jumpa reporter pun aku tak sanggup lagi. Mana nak taruk muka!!!
Hari aku rasa betapa pedihnya seperti apa yang rakyat rasa pedihnya kerana aku membutakan mata ku and memekakkan telingaku
Hari ini aku rasa betapa malunya diri, seperti mana aku memalukan rakyat jelata
Hari aku rasa betapa tingginya langit yang selalu aku rasa amat rendah sekali
Hari ini aku tahu betapa pentingnya mendengar apabila menjadi pemimpin dan bukan memaksa rakyat mendegar apa yang aku nak cakap.
Hari ini aku tahu betapa mualnya rakyat mendegar suara aku, kerana aku sentiasa bercakap benda yang sama dan ketinggalan.
Hari ini aku tahu siapa sebenarnya raja dan siapa sebenarnya hamba!!!
Hari ini aku tahu menjadi wakil rakyat bukan tugas aku mengiyakan pemimpin wahid walaupun kabur
Hari ini aku tahu betapa bijaknya rakyat menilai diri aku.
Hari ini juga aku sedar TUHAN itu mengetahui, maha kaya dan penyayang
TUHAN menentukan hidup ku
TUHAN telah menetapkan segalanya
TUHAN mengetahui apa yang telah aku lakukan
TUHAN mendengar rintihan hamba yang dianayai
Bagaimana harus aku bangkit...bangkit...bangkit...
Bagaimana aku hendak mendaki rakyat sedangkan aku tidak menaiki kereta kancil seperti yang rakyat naiki.
Bagaimana aku mahu mendekati rakyat sedangkan aku memakai pakaian yang mahal-mahal sedangkan rakyatku sudah bertahun tidak menukar baju baru.
Bagaimana rakyat nak berjumpa aku kalau aku duduk dikerusi empuk, di dalam bilik yang berlapis-lapis berwarna emas, dikawal oleh beribu pak guard dan polis.
Bagaimana rakyat nak jumpa aku, kalau rakyat rasa dirinya tak setaraf dengan pemimpin
Bagaimana rakyat nak mengadu masalah kalau rasa dirinya hina kerana aku pakai mercedes duduk dalam banglo, tapi rakyat pakai kancil, duduk dirumah kayu hampir roboh.
Bagaimana rakyat nak jumpa aku, kalau pembantu-pembantu aku menjadi lebih besar daripada aku sendiri.
Bagaimana rakyat nak percaya, kalau aku tidak kritis dalam membuat dasar dan keputusan.
Bagaimana rakyat nak percaya, bila aku kata subsidi ditanggung kerajaan terlalu tinggi, tetapi Petronas buat untung selepas cukai 30 billion.
Bagaimana rakyat nak percaya, kalau aku kata 30 bilion itu untuk digunakan untuk membangunkan infrastruktur, modal insan, wilayah pembangunan dan lain-lain tetapi pada masa yang sama rakyat tidak memerlukannya pada masa ini lebih daripada kesengsaraan akibat dari naiknya harga minyak.
Bagaimana rakyat nak percaya, kalau aku kata harga minyak di Malaysia adalah terendah dirantau asia, tetapi sebenarnya perbandingan itu tidak betul kerana GDP negara itu lain, purata pendapatannya juga berbeza.
Aku perlu sedar bahawa rakyat sudah semakin kritis, kerana pemimpin terdahulu telah menyediakan landasan yang betul bagi pembangunan modal insan.
Aku perlu sedar inilah hasil kemakmuran negara, melahirkan insan yang cerdik dan pandai.
Aku perlu sedar bahawa setiap masalah bukan hanya ada satu penyelesaian. Harga minyak global naik, bukan hanya ada satu penyelesaian iaitu dengan menarik subsidi.
Aku perlu sedar, bahawa rakyat sudah tahu bahawa negara sedang menuju inflasi.
Aku perlu sedar, bahawa rakyat mahu mendengar tindakan, idea logik bagi menangani masalah ini.
Aku perlu sedar, kalau aku naikkan harga minyak, tarik subsidi untuk mengatasi masalah, bebudak lepas SPM pun boleh buat.
Aku perlu sedar, kalau nak pulihkan MAS dengan buang pekerja, jual aset...makcik jual goreng pisang pun boleh buat.
Aku perlu sedar, aku berhadapan dengan Melayu baru bukan zaman sebelum perang.
Aku perlu sedar, rakyat sekarang sudah ada banyak pilihan bukan lagi sistem satu parti. Orang melayu sudah ada pilihan UMNO, PKR atau PAS.
Aku perlu sedar, kalau aku tidak perform rakyat akan ganti aku dengan bukan sahaja orang lain tetapi juga dari parti lain.
Aku perlu sedar, rakyat semakin selesa dengan pilihan-pilihan ini dan landasan yang dibina untuk generasi akan datang kebebasan memilih mereka yang benar-benar cemerlang, gemiling dan terbilang.
YA ALLAH YA TUHAN KU BERI LAH AKU PEDOMAN DAN PETUNJUK UNTUK BANGUN KEMBALI, SESUNGGUHNYA KAU LAH YANG MAHA PENGAMPUN DAN PENUNJUK JALAN.