Thank you note!

Taking the opportunity from my blog, I would like to thank my lecturer, Dr. Sonny Zulhuda for his guidance and assistance in our assignment of making this blog a great one, apart from having given lots of inspirational lectures and information tutorials sessions. I hope that in future, we will be working on something big together or, simply, just to sit down and see him do great things and be proud that I'm one of his student.

As for that, my hats are down and my hands are off the keyboard (impossible, as I'm still typing) to express my wholehearted thankfulness and gratefulness for the time of us sharing the understanding and knowledge of Business Law.

Truly enjoy the class and hope to excel in the finals! (Dr. Sonny, keep note of my ID, I need the good grades from you)

Thank you very much again and again and hope to see you soon!

Regards,
Let's Speculate More!

Internet Marketing and the Source of Income

As many of you all know the current trend of doing online business, or earning money through online. But as simple as both statements sounds, it differs a lot, especially on the second one. The reason behind of me stating this is because online business simply means doing business online and with the such of having a bidding online, online auction, selling stuffs through online.


But earning money through online has the other form of generating the income streams. Why can I tell you this, is because I have tried it before and I know what is it all around. Earning money through online is in fact, like Marketing Communication companies do, but instead of approaching people or doing events elsewhere, their main focus is on online platform. But on the online platform, how to earn money? Some may post up ads, and for people to write post, such as PayPerPost or even KennySia.com, Malaysia's Famous Blogger that write post for companies who want to advertise. Still this is not that complicated.

The complications starts when a different method and many of them were used. With the likes of advertisement through Google Adsense, a subsidiary of Google that placed ads on people's website but without the discretion of the owner of the site. Yes of course, the owner will have to signed and agreed on the T&C, but what I mean is that, the owner will not know what type of ads will be generated as it is randomly generated but with an mechanism to focus on your post. Let's say you post on Golf, and the ads will have golf ads on your website. Thus, the earning streams comes from clicks known as PayPerClick, or PayPerImpressions and many more.

And with that, many of us will put that, and Google will only pay you if you reaches USD$100. And that will be darn freaking long, I can tell you, so some took advantage and started having lots of blogs with no details but with high intention to earn money, before Adsense have this blockage to stop this people for making it worse for the companies (as Google have to be responsible to the companies that placed the ads). And with that, the Earning Money Through Online Saga continues, as people even write up E-book for sale to people and teaching people how to earn money through online. Some established companies and method like Stuart Tan from Singapore had proven some of the theory and it did worked. But as usual, the pie of a pot of gold will be exhausted as well, thus many started trying this stuffs again and again.

Alright, let me tell you something, from what I believe is that, if earning money through online is that important, earned it with conscience. Do not take advantage of the money but in the prospects of learning. This is essential and heaven-of-important. And let me share this story of a 17 Malaysian Boy (2008, where I was hyped about the issue) who earned about RM 10 000 in a month. The boy name is Labanon, now I think is 19-years old, and he did the same thing browsing such stuffs and trying what I was trying to do that time. But anyhow, the stories goes like this, my main concern is not how he earned the money, but what is the tax implications of this scenario.

As magnificent as it sounds, we are Malaysian we are to drawn down to it to see some implications even though you are capable of earning it. With the previous few post on Income Tax, he is not in the working force yet, and is still studying. Will he be charged for Income Tax?

The answer will, in my opinion (correct me if I'm wrong) will vary in a different way. First of all, the question is not his age, but the income stream. Is it periodical income stream (that means constant) or it is an one time payment? And even if it is an one time payment, is the profit from a business?

With that we will get a clear answer is that yes, this is an income by definition of Section 4 of ITA 1967. And from that, I will evaluate the point from here. Even without his parents knowledge, he has to pay income tax, with the reason is that, although Google Adsense is in US, all the operations are done in Malaysia, and this is definitely true, because all bloggers who earned money through online paid taxes (subject if the income is more than RM 27000 annually). In addition to that, something that I learnt last time is that Google will have an agreement with you to state whether you are a citizen of USA or not. If you are not, you are not asked on the tax code, but..there is a BUT! In the terms and conditions, you have to bear your own cost for tax, as you are not paying tax and google do not have to pay for you. So in both countries with taxation system, and with both must have one side being paid tax, is simply, the blogger have to pay for the tax.

That's why, Tax is always a big issue..first because it involved money.and second it got too much things to consider...hehe..

The Process of your Income Before Being Taxed! aiyoyo..

Alright, always the issue of how much money will I be taxed, how can I run away from being taxed and etc.

Alright, below are the procedures that is taken from my lecture notes on how Chargeable Income (the income where the taxes are charged) are computed.

The steps is as follow (the following steps is very essential especially for taxpayer, at least you have a good understanding on the process of it);

1. Gross Income: all the income that includes any sums, before deduction of any allowable expenses
2. Adjusted Income: calculated by deducting all outgoings and expenses incurred in the production of gross income
3. Statutory Income: determined by adding balancing charge with the adjusted income any by deducting capital allowances
4. Aggregate Income: Combination of statutory incomes less the business losses from the previous year
5. Total Income: aggregate income - current year adjusted business loss, less others
6. Chargeable Income: Total Income - Personal Relief

I would like to take this opportunity in this post, to talk a little on Personal Relief. Apparently with so much taxes being taken away, from our income, our Government had the so-call incentives (thankful for feeding them with money), that is called the relief, as if you have wife, children, books, and etc.
The below are the list of reliefs (adapted from http://www.mida.gov.my/en_v2/index.php?page=personal-income-tax)

4.1.1 Personal Relief

The chargeable income of resident individuals is computed by deducting the personal reliefs from the total income. The types of relief available are:

Relief	RM
Self	RM8,000
Further self relief - disabled	RM6,000
Wife/ husband	RM3,000
Further wife/ husband relief - disabled	RM3,500
Medical expenses for parents;	RM5,000
Medical expenses for taxpayer, spouse or children on serious diseases (include RM500 for medical examination);	RM5,000
Expenses on supporting equipment for disabled taxpayer, spouse, children or parent;	RM5,000
Expenses on supporting unmarried children:
i. Below 18 years of age;	RM1,000
ii. Disabled child	RM5,000
iii. Over 18 years old (pursuing tertiary education at university or college)	RM4,000
Life insurance premiums or approved fund contributions	RM6,000
Insurance premiums for education or medical benefit	RM3,000
Annuity premium on annuity purchased through EPF Annuity Scheme	RM1,000
Fee of acquiring law, accounting, Islamic finance, technical, vocational, industrial, scientific or technological skills or qualification. In cases of post graduate studies, no restrictions on the field of study.	RM5,000
Purchase of books, journals and magazines and other similar publication (excluding newspapers).	RM1,000
Purchase of computer for once every three years with effect from the year of assessment 2007	RM3,000

Foreign Source Income on ITA 1967. The Vague Story to be Told!

From the observation of a few companies both medium and large companies respond on foreign source income issue. And from the recent research that I got from online, and forums, what I can generalised the answer is in a way that, the most logic and to seek for the truth.

As for the answer, the residential or the period of time whereby an individual resides and where he resides is eventually the most important point.

From the previous story of Mr. J, he is residing in Malaysia, and even with foreign source of income, he is subjected to Malaysian tax. In a way to tell, if he is a Malaysian and in tax-scope of resident status is in Malaysia as well, and also eligible to US Tax Status, he will not be subjected to Malaysian tax, but is to US Tax. And as US and Malaysia do not have the Double Taxation System, so Mr. J will either be taxed in Malaysia or either in US. That's the simple story.

A very good example as well will be blogging, if you are working for Google. And Adsense (sub company of Google) is paying for ads you earned from your website. Google paid you and apparently your income annually reaches more than RM 27 000, you are subjected to Malaysian Tax simply because you work in Malaysia (don't talk about the IP address stuff, later MCMC have to get involved ady).


Anyway to know more, there is an interesting link as below, that shares many funny and true stories;
http://forum.lowyat.net/topic/1003595
http://answers.yahoo.com/question/index?qid=20091222065411AAPJzhN
http://taxipay.blogspot.com/2008/03/us-citizen-or-resident-with-foreign.html

Income Tax Law: Foreign Source Income

Continuation from the previous post, and from the definition of Income Tax, that states that money that received in Malaysia but came from outside Malaysia are subjected to tax. The outside Malaysia term will fit in 'Foreign Source Income'. With effect from year 2004, individuals (again resident or non-resident) are assessable only on income accrued in and derived from Malaysia. This was an amendment made that any income that is made outside Malaysia is tax-free. But wait a minute? Is that possible. From the definition, and from Paragrah 28,Schedule 6 of ITA 1967, foreign source income is exempted from income tax.

However, with the term clearly defined, it still remain ambiguous at some point. The reason why as I put a scenario for you guys to think.

Mr J is a businessman from Malaysia and have been a Far-East representative for a company in US namely H. As a Far-East representative, his responsibility to do inspection and make report to the company H, via his expertise and experience in the industry. He is the only one in Malaysia that is working for H, and it had been going on since 2001 until now. All his money are paid from US and sent to Malaysia. With 2004 amendments on Foreign Source Income and by definition, he should be waived off from the tax.

But this remain untrue, as based on the true story and advise from accountants that audit his Income Tax stuffs, he is still entitled for the tax. And this may be the UGLY TRUTH, but I'm going to state to you guys. The reason is that, although the source is from Foreign, and it is subjected Mr J had to stay in US, just like if you are a Malaysian, have to stay for a certain period of time, only the income are not subject to tax.

This may seem funny, but I truly hope it can be debatable, but most auditors for Mr J had told the same thing. And this is a true story! Bite it and go!

Income Tax Law: Continued...

As our scope of taxes are narrowed to Income Tax, we will focus on Income Tax Law. And a very important point to note is that, our Income Tax Law are all accordance to Income Tax Act 1967. Even though every single year, different budget and percentage changes in the tax imposed, the basic of the law is still on ITA 1967.

A very important point to note will be how income tax is classfied. According to Section 3 of ITA 1967,
"A Tax known as income tax shall be charged for each year of assessment upon the income of any person accruing in or derived from Malaysia or received in Malaysia from outside Malaysia".

This will thus, bring different definition to our context, with the number of days of resident play an important role. It is not whether you are citizen or permanent resident or sort, but to see how long you reside in Malaysia to check your Income Tax residence status. A reminder again, this is totally distinct from your origins or citizenship status in Malaysia.

Before we go on further, we shall discuss what are 'income'. Income must be repetitive from a source of income and received in the ordinary course of business. While you may think, let's say, I'm an event organizer, and I got money from different sponsors, and my money differs a lot, is that income?

As for that, the Income Tax Act or the authority (they are not that dumb to let you go), and all the gains or profit shall be referred to Section 4 of ITA1967 as follow;

1. Profits or gains of a trade, business, profession or vocation
2. Profits or gains from personal services - employment
3. Dividends, interests and discounts
4. Rents, royalties and premiums
5. Pension, charges or annuity or other periodical payments
6. Gains or profits not falling under any of the foregoing paragraphs.

With all gains, profits or income seem quite clear, the misleading number 6 can actually mean all the money that you earn. But still, there are points to consider. This is because if money that are not declared and yet is transacted, the authority may charged you of any case even money laundering.

And during each and every year, the basis period is the period of time upon which tax is assessed. Usually income tax is assessed upon one year period and as mentioned previously, April is the month of the Income Tax month. While on the other hand, the Year of Assessment means calendar year in which tax is assessed, and it begins from January and ends in December. As for individuals, it wouldn't affect much, but for corporate or business companies, it usually do not follow this calendar year. But anyhow, for Income Tax, before 2003, individuals are assessed on different horizon, before the amendments were changed and everyone is following the same time. Thus, accountants got more job.

Let's put this scenario and speculate on the situation that might happen.

AH is a student and an entrepreneur. He works as a part-time event organizer and had been actively doing his part professionally and learning every steps. He met with a lot of people, and especially with big shots like Dato', Datuk, Tan Sri, Yg Bhg and even Tun. With that influence, recently, he was given a project to do. The project is an event and the people are willing to fund him even up to RM 30 mill. As he do not need that much of money, the people behind this project are ready to allocate, as this pool of fund is not from a sole person, but multiple person. As he draft out the proposal and RM 30 mill were sent to him. Let's do not consider the people that gave him the money and how they do it. But narrow our scope to AH's Income Tax issue. He never paid tax, and do not even own a KWSP account. And for this, case with RM 30 sent to his bank account, CIMB were even terrified.

And let's say, yes, RM 30 mill is in his account now. What will you think will happen to Income Tax Authority. Even if he declare and do his event until the next year income tax audit, he will only be charged with the max of 26.8% and he wouldn't mind paying it. But let's bring this thing to logic, do you think Income Tax people will come or Malaysian Anti Corruption Commission (MACC) will come?

Think about it, because the scenario of him paying the tax is not a problem. But why is it that way that even we pay tax, we can be charged?? Please put some feedback on this. Thanks

The Inland Revenue Board (IRB)

As for many of us, we have to know, or must know this board as this is the authority who is taking all our taxes. Prior to March 1996, this board is actually called Department of Inland Revenue Malaysia, under the scrutiny of Ministry of Finance. As upon 1st March 1996, they became a Statutory Board, so call independent board.

The reason for today's post is simple that is to know their function and why is it important to know, because if next time you are working, you get to know who and how your tax money are used. Main thing to concern for IRB is that, they are responsible for

1. Formulation of new tax policies for both the private and public sectors
2. tax collection and
3. compliance enforcement.

These are probably adapted from the slides, but having to know this are essential and with my beefed up information in the later section.

Functions of IRB

• Act as an agent of the Malaysian Government and to provide services in administering, accessing, collecting and enforcing payment of taxes under the IRB
• Advice the Malaysian Government on matters relating to taxation and to liaise with the appropriate Ministries and statutory bodies on such matters
• Participate in or outside Malaysia in respect of matters relating to taxation
• Perform such other functions as conferred on the Board by any other written law
• Act as a collection agent for and on behalf of any body for the recovery of loans due for repayment to that body under any written law

And taxes under IRB will include income tax, petroleum income tax, real property gains tax, estate duties and stamp duties. And with that, we have also Malaysian Tax Academy who are in charge of guiding the team of people (who come and bugged you every year in the month of April)

The objectives of Malaysian Tax Academy are :-

1. To provide training for the officers and staff of Inland Revenue Board of Malaysia in taxation and management to enable them to carry out their duties in a professional manner;

2. To reinforce the knowledge and expertise of the officers and staff of Inland Revenue Board of Malaysia to meet the demands of a dynamic tax system;

3. To widen the perspective and knowledge of the officers and staff of Inland Revenue Board of Malaysia through joint training with individuals and organisations within and outside the country; and

4. To provide tax education to the public in order to enhance their knowledge and awareness regarding taxation in this country.

Let's see what Insurance Law have to say!

Jailed for biting off ear of lover’s husband

A TECHNICIAN who bit off the ear of his lover’s husband was jailed seven years and given eight strokes of the rotan by a court in Singapore.

China Press reported that the 42-year-old technician, who is a bachelor, committed the offence on June 18 last year at a Housing Development Board flat.

The technician’s lover had brought him back to her flat without realising that her husband was home. There was an argument between the two men which led to a fight and the biting of the ear.

The technician was arrested the same day.

Let's have this situation to think that, let's say the husband did purchased a life insurance. And probably he didn't know that his ears is so fragile (just joking) and let's don put sueing as part of the deal yet, will the insurance company be paying for his hospitality and services/treatment for his ears?

If you purchase life insurance, I have to say sorry but he won't be able to claim that. As this is considered as Personal Accident, and it shall be in another package called General Insurance, or you have to attach this plan as a rider to Life Insurance. How complicated it is? But sadly, this is true because judging from other point of view, this is an accident and is not something that we expect all living humans will have in their entire life. Thus, be smart in picking your insurance package! hehe..

Income Tax Law

Yes, finally one of the hottest topic, not just in law, but in politics in everywhere around the world. From how you can see it in US, Thailand (recently) and Malaysia (everyday). Everyone who is working above RM 32000 per anum (if I'm not mistaken) have to paid this tax, namely Income Tax.

And in fact, during this post is the time when the peak of the Income Tax Authority is waiting for our personal assessment to be sent to them before the big tax is coming. With that, every single year, the time for accountants will be busy is this month, October and December. But having said that, let's pop some questions for you, is Income Tax important for you?WHY? This will be the main agenda of our topic today.

Before we go on further, let's have some understanding what exactly tax are. Tax is a sum of money paid by the citizens to the government on the income or value of good purchases of certain specific goods and services. For individuals, we have income tax that is based on the amount that we earn and we have to give this contribution to the government. And as the relationship is directly from us to the government, the taxes that we paid from our income is called DIRECT TAXES. As for indirect taxes, is whereby our money is paid to the products or services that is charged with tax, which later will be paid by another agent to the authority. As for example, we go and eat in McD, and we have to paid for Government Tax of 5% , and that is indirect taxes.

So imagine, how many things we are paying for taxes nowadays. Even some Mamak (food stalls) and Chinese Hawker stalls nowadays require us to pay tax. And with the plan of having GST (goods and service tax) on everything we buy soon, wow, where is the money for us to even buy toilet papers? Just joking, but yes, as a country become more developed and with technology growing exponentially, more expenditure is to made from the Government bodies. And with 60-70% of Malaysia's income comes from tax, our country is depending on us, the smart and hardworking brats to fund for the country. WAIT A MINUTE!

Does it mean that tax is the main contributor to the Federal Government? Answer is YES! From the latest 3 years record (2007-2009) that I got from Bernama (click on this hood), 70.6% of our Federal Government Revenue amounting to RM 124, 379 millions are from taxes, this is the budget for this year (2009) actually. Alright, the actual amount collected on 2007 and 2008 were RM 95,168 millions and RM 107,737 millions respectively. And this collected amount stands in 68% (2007) and 66.5% (2oo8) in our country.

With that amount approximate 44% to 47% are coming from the income taxes. Be amazed with the figures below (click to enlarge)





And with that money, we citizens enjoy the infrastructure and facilities and improvement especially in standard of living. And back to our topic today, is Income Tax important for you? Definitely yes because if you do not pay it or submit your assessment you will be summoned, a huge amount of money. But is that the main important things? Simply NO, because the money that is taxed, you will try to minimize it as you want to have more money for yourself.

With that idea of 'more money for yourself', brings in the hot topic for country with taxes. Each and every year, Politics will fight each other and with 70% of our income is by tax, TAX is the topic that is always discussed. Click this link to read the latest story in America that was shared to me by Priya, our friend. The debate goes on, because with that huge amount of money, development is usually lack been seen in our country. I'm not saying that there are no developments, but the debate is always regarding that where the money goes, as with the budget, is money wisely managed.

As always, money is a sensitive issue and money makes the whole world goes round, you can see this effect that citizens will want their contribution to tax wisely used. And with that, some try to evade taxes partly not because they can't pay, but they don't wish their money to be used inefficiently. And this is the reason why I said this topic is hot. Still in introductory actually! hehe.

Human Rights and Country Law

Although part of our laws that we learnt are mostly regarding Business Law. But life is never all about business right. This is the recent video clips that I viewed that creates curiosity and questions regarding the law of justice in Malaysia.

I hope you guys can view it and tell me your opinion in terms of Law in Malaysia for this scenario while I hunt for more information regarding this issue. Kindly comment as doing a part for me to speculate. Thank you!

Doctrine of Utmost Good Faith

With lots of doctrine that our fellow lawyers have to know, and remember, we as the Business Law student should know it as well. In fact, the whole nation should be aware of this as this Doctrines are the one that is guiding us and helping us especially for human rights.

In insurance law, from the previous post, Doctrine of Utmost Good Faith is one of the most important element, not in other contracts, but solely on Insurance Contract. With the definition that, each party to a proposed contract is under a duty to disclose to the other all information which would influence his decision to enter into the contract, whether such information is requested or not.

AS simple as it is defines, it means a lot to make sure each and every word counts. In fact, good faith can be termed as genuine faith, and things that is genuine that is informed is to ensure trust from both parties. This is very important as the failure to fulfil or giving material information, will subject the other party to avoid the contract. As insurance contract are based on mutual trust, and with information definitely more well understood by each party, it is their job and responsibility to enlighten each other regarding it. The mutual trust and confidence bonding between the insured and the insurer can be termed as uberrimae fidei, the same meaning as utmost good faith.

A very important case of this can be adapted from the example of someone who had heart and lungs problem. However, though not disclosed in his life insurance, nothing happened until SARS strike through one day. The impact was heavy (as it is an acute pneumonia) causes the guy passed away due to it. And from the thorough inspection from the doctor with the report being given to the company, the company chose not to pay or compensate to the family because it is stated that the deceased did not notify that.

Thus, in this Doctrine, telling the right and actual information is very important. It is not like life that sometimes we can make assumptions, no, not a chance. And with that, do beware and keep your insurance agent knows everything bout you well.

Understanding Insurance Law

One of the key thing to understand insurance law as to compare with other laws will be what is the difference between INSURANCE and ORDINARY contract. This will sets a distinct understanding and for us to know better the content of what insurance law is all about.

In ordinary contract, the doctrine of utmost good faith (which we will have discussion on it later) is not applicable simply because other doctrine as mentioned earlier, remains dominance in the meaning. But in insurance law, the main key elements of it is DOCTRINE OF UTMOST GOOD FAITH. On the other hand, in ordinary contract, the INSURABLE INTEREST is not needed, while insurance contract, the insured must have insurable interest in the subject matter.

At some points, too many jargons are put on hold and you might not know what is it all about, like utmost good faith, insurable interest and etc. Here will be clarification part.

I will start with Insurable Interest! It is common that in everything we do, we could not get 100% guarantee or even warranty of everything. It is the same as risk, that not all of them can be insured by the insurance company but only the risks of an insurable interest. With that, the insurable interest stands in the meaning of interest (as with the things to be covered or wish to be taken care of, such as financially, the family n etc.) in the subject matter of a contract of insurance, and this gives the right to the insured to enforce the contract when things, unduly happened.

And let's put an example that S bought a life insurance from Company G. Apparently, one day, her house caught on fire due to someone accidentally flanked a cigarettes butt on her house garden. The whole house was destroyed nearly 50% of it, but S survived with minor injuries.
Let us speculate this situation that what is the insurable interest, with what can be and to be insured!
Answer: Insurable interest again, means the insurance are covering based on your interest of what to be cover. In this sense, as S bought only life insurance (which is her interest), she will be compensated based on things that incur to her life or health. But what about the destroyed house? Sorry to say is that, the house will no be insured, as that is not within her insurable interest. The minor injuries that she got will be insured but simply not the house, as she did not purchase the FireInsurance or etc.

But do not worry, as complicated as it sounds, Insurance Companies nowadays are thinking way ahead of us, not that they know that we will have those dangers, but their words are sweet to say 'it is a precautionary measure', or more proverb-ly sound, 'prevention is better than cure'. Companies nowadays, as mentioned in the previous post had many packages, which this will includes life, fire and some other elements, with our choice. For better or worse, we are more coward as compare to last time, we will buy the one with the highest probabilities.

Back to the topic is that, the amount of insurable interest is based on the pecuniary loss that was incurred. However, let's say you pay your car insurance yearly, and in the same year, you sold off your car, that transfer of ownership will mean that the insurable interest will no longer be valid. Let's speculate another scenario? As we know that Cyberjaya is popular with accidents, and second with renting cars. And let's say Abduh is a owner of many cars that he rents, and upon renting one of the car one day, someone who is racing and drifted his car into a ridge. The question is, will he be gaining his insurable interest?
Let's put some deeper thoughts on your mind, that Insurance Companies are not that stupid, as they will investigate the case that happen before releasing their payment to you, so how is it going to be?

Actually in this case, based on the Vehicle Insurance that Abduh possesed, with no transfer of ownership but just the matter of transfer of tenancy to the driver, he is entitled for the insurable interest. As according to Nanyang Insurance Co. Ltd. v. Salbiah, as long the ownership has not been transferred, Abduh still content for the insurable interest.
But it may be argued again that, that is Business or insurance for your business and it may not fit the category, and even worse, the business is not legal. Will he be insured?
At some point, based on Nanyang case, in fact, it is a different matter simply because this is for rental, and as far as business is concerned, without the legal rights, the insurer company can choose not to pay it. As again, speculate this issue!

Caveat Emptor: Sales of Goods Law

Before continuing on the long Insurance Act case, let's bring back to one of the most important element in the chapter of Sales of Goods. As we can realise that each and every lessons that is learnt throughout the course, have something to be remembered.

As thus far, from
Contract Law, we have Doctrine of Stare Decisis,
Company Law, we have Doctrine of Separate Legal Entitiy
Insurance Law, we have Doctrine of Utmost Good Faith, and
in this context we have Doctrine of Caveat Emptor.

Taken from the Latin language, Caveat Emptor simply means ' Let the buyer Beware '.

How cool was that? But sound rather vague..but let me clarify some stuffs regarding it.

From Wikipedia explanation it goes like this,

"Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. Before statutory law, the buyer had no warranty of the quality of goods. In many jurisdictions now, the law requires that goods must be of "merchantable quality". However, this implied warranty can be difficult to enforce and may not apply to all products. Hence, buyers are still advised to be cautious"

What does it mean is simply that, sellers should bear in mind the important elements of telling the truth. Of course, you and I know that in the real world, people will say that you won't earn money if you are telling the truth. But what let the buyer beware tells is that, the buyer should know the products and at some point, it is the seller's responsibility to ensure that the product is merchantable, or sell-able. This is essentially important, as many of us, can fall into a trap that this cases is actually a fraud or misrepresentation case. And as so many bad cases around the world, the only best method to counter this, is that, the buyer although guarded by this doctrine, should be smart and wise to choose and pick the right things, and know the right stuff.

And speculating on a small issue, let's put my name in this scenario, fictional but can happen.

Eric is eating in a Mamak Stall, and is having his sumptuous Nasi Kandar (wuallaa!). Having to savor his meal halfway, the waiter who served him earlier, walked to his side and wrote on the bill and placed it below the cup of his drink. Enjoying his food to the optimum, Eric did not flip the paper or bothered on the price? He is just too into the food. Great!!! And later after maximizing his marginal utility, he went to the counter wanting to pay before realising that the bill noted RM 15 ++.

Oh he goes, 'WOW, watha" and recalled what he just ate.
A plate of rice, with muttons and carry on top. No vege, no papadum, nothing extra. Just rice and mutton and curies. And what did he drink: Ice Tea.

In this situation, some people will just go, "S**t,we got cheated and this is very expensive, but never bother asking". And this is why a lot of stalls are taking advantage. But having listen to a talk by Prof. Dr. Ishak, from Sime Darby Corporate Culture Team, he shared that, this is all within our will to, simply, ASK. He said, "I know you guys ate the food, and the guy might be complaining that you taken a lot of mutton (which apparently is always taken by them), and all sort of reason. But the courtesy is still to ASK, to KNOW and to caution our RIGHTS".

Thus, in this scenario, don't be afraid to stand up, we are not picking up a fight, but just to ask and know, and if they usually charges that way, simply don't go and eat there anymore. But if not, you may stand in the chance of not paying that much.

FYI: Caveat venditor is Latin for "let the seller beware". It is a counter to caveat emptor and suggests that sellers can also be deceived in a market transaction. This forces the seller to take responsibility for the product and discourages sellers from selling products of unreasonable quality. In the landmark case of MacPherson v. Buick Motor Co. (1916), New York Court Appeals Judge Benjamin N. Cardozo established that privity of duty is no longer required in regard to a lawsuit for product liability against the seller. This case is widely regarded as the origin of caveat venditor as it pertains to modern tort law in US.

Introduction: Insurance Law

One of the key issues pertaining to Insurance Law that first bump into your mind will be, the insurance package that we buy, and we want to preserve our rights from being cheated by those agents. That is the layman term I can say.

But in our context of insurance law, we shouldn't just think of how we can have our a**e taken care, but at the same time, we should go to the core of why is Insurance needed. At least, for the lawyers, they know they are valued for their efforts in studying this law.
First and foremost is simple, the reason we need law is that, we wanted to counter the risk that we are having. They are plenty of risks out there, in the scope of just human rights and life (nothing to do with any financial or etc. stuff), is that even staying in a house can be a risky thing. You never know that with the Will of God, something may happen to you, isn't it?

Thus as for that, and as humans get more complicated ever since the Mesopotamian civilization, humans become more skeptical and coward. I don't mean coward, as those really coward, but in the sense, the worry more things (even unneccesary stuffs). Thus, some brilliant guys thought of, why not given some protection to this scaredy fellows, and earn some of it. Thus, two group of people discover their own products but gets more complicated First, is to give me some money, I'll pay you back and insured your losses if anything happens. With the traditional whole life insurance, where 100% of the money will be used to insured your losses, some insured people take advantage. And as the human cycle life go, you take it, I'll take it back. Thus, this business idiots come out with the term of insurance packages which include certain investment scheme, and different types of rather confusing insurance. And there you go, the first story done.

As the story goes by, the second group of people came in and still exist even until now. They will take money for you, and provide you personal protection. Not in terms of your health or house or anything. But what is it then? Oh, it is called Gangsters' Insurance (GI), whereby you pay the money to take care of your well-being and your house, even you don't want, you are forced to in their territory. Thus, their most developed products include GI JOE. Nah, just for the fun of writing.

Alright back to the serious topic, from our Malaysian Insurance Act 1996 quoted:
" An act to provide new laws for the licensing and regulation of insurance business, insurance broking business, adjusting business and financial advisory business and other related purpose "

This act is important as insurance is not something that is done as with goodwill, but definitely with a cost. There are never free lunch in this world we should know that. With that, this business propels to make profit especially on how those actuaries had worked so much to help those insurance companies earn their biggest deal. With many types of insurance, the general common ones are life insurance, marine insurance, fire insurance, accident insurance, motor insurance and aviation insurance.

And looking on the LAW side of it, which is why we learn this law, is that, CONTRACT. This word is common but very meaningful in a lot of ways, especially in law. Definitely, how is an insurance contact is made upon?
Answer is: A contract of insurance is a contract whereby one person, called the insurer, agreesto indemnify another person, called the insured, against a loss which may arise upon the occurrence of the particular event.

And with that contract, it will come in attached with information on that contract called as a 'policy' or in layman terms, terms and conditions.

With that 'policy', it will define the types of insurance that is covered. And as mentioned, payment have to be made, and that payment is called 'premium'. With the losses that is going to be insured as stated in the policy, is the 'risk'.

And this shall be the introduction of Insurance Law before we go on further.

Remedies for Breach of Sale of Goods Contract

This post will be a short one as I'm rushing for an event today, thus, as below;

In the every contract, there are breaches and things that tells the beyond the limits of a contract. The stepping of across the border of contract will lead to a simple fact, that is the contract being cancelled. So pay attention in the remedies below

Remedies for Sellers
1. Rights of unpaid sellers

• in case the goods are not yet delivered
• in case the goods are in the process of delivery
• in case the good have been delivered

2. Rights to sue for breach of contract

Remedies of Buyers
1. Rights to sue for damages for non-delivery
2. Rights to sue for specific performance
3. Remedies for breach of warranty (compensation)
4. Rights to sue under law of tort

• Detinue - an old commonlaw form of action to recover possession of personal property wrongfully detained
• Conversion -
  
  a. unauthorized assumption and exercise of rights of ownership over personal property belonging to another.

  b. change from realty into personalty, or vice versa, as in the sale or purchase of land or mining coal.
  
  

For more information and more in-depth details of breach of contract, kindly refer to this link.

Exceptions to Nemo Dat Quod non Habet!!

Woo hoo, yes, for those guys met in these situation before like how Mamat in the previous post, that my lecturer storied, we are here to enlighten the six exception to Nemo Dat Quod non Habet.

Hehe, it sounds like protests on the rules, but definitely for the right of justice, and laws are man-made it definitely can be changed, altered or put into exceptions.

The first exceptions are widely known as The Operatoin of Estoppel (section 27). Taking Mamat story again, and re-cap the story by having this exception into the story. In this rules, Mamat can have the title of the car if...Paul (the owner) by his conduct makes it appear to Mamat that Jack has his authority to sell such car and the buyer (Mamat) relies on that conduct. Here Paul is 'estopped' or precludd from denying Jack's authority to sell. And this appears to show as if authority is given. The best recap moments will be let's put like Mamat and Jack is talking about it and Paul is there, and knowing all the details. Instead of objecting, he is there, chilling and nodding in agreement, that is one of the point of Operation of Estoppel.

The next exception will be Sale by Mercantile Agent (section 27) and the stories goes;
Mamat can have the title of the car if ...Jack in this case is Paul's mercantile agent, having possession of the car with the consent of Paul, and had sold it to Mamat in the ordinary cause of business as mercantile agent. The definition of Mercantile Agent can be found in Section 2 of SOGA 1957. Ahuh, in this case, it is quite clear that they is an agent and definitely, the agent can represent the owner.

Besides that will be Sale by One of Joint Owners (section 28) and the following are the continuation of another scenario of the story;
Mamat can have the title of the car if Jack and Paul are joint owners of the car and he has the sole possession of the car by permission of the co-owner...provided that Mamat bought from Jack on good faith, and had no notice that the seller has no authority to sell. And the quote of on good faith, and no notice that the seller has no authority sell, means that Mamat is innocent to know the case as to avoid bad intention that Mamat want to create between Jack and Paul. Just some explanation on it.

In the next context, under Section 29 will be Sale under a Voidable Title. Chapter 4 continued..
Mamat can have the title of the car if ... Jack had acquired the car from Paul under a voidable contract (voidable as according to s.19-20 Contract Act 1950 eg. fraud, coercion, undue influence etc.) and at that time, Paul had not rescinded the contract. Provided that Mamat bought it in good faith and had no notice about the defect of Jack's title on the car. This will mean that the problem occurs between Jack and Paul, and it is apparent but not realised. Thus, the point of having Mamat not blamed and to earn the ownership.

The 5th exceptions will be sale by a seller in possession. Mamat can have the title of the car if ..Jack (seller) had previously sold the car to Paul, but then he continues or is in possessions of the car or of the documents of title to the car after the first sale..So here Jack sold it to second buyer after selling it to the first. Provided that Mamat bought in good faith and here Jack is liable to compensate Paul. Clear cut enough but on how ridiculous the stories can sound, it is true and had happen before, and thus Sectoin 30 (1) will be the reference of the story. And in this case, all I can say is 'Kesian Paul, he is the victim'.

Last but not least will be Sale by a Buyer in Possession under Section 30(2). The story to be told...
Mamat can have the title of the car if...Jack, after buying the same car from Paul, had possessions of the car, even though such contract is not yet completed and Jack had not obtained a good title yet. Just as clear cut as the previous few exceptions, this simply entail that Jack already have the ownership with the intention of Paul is to sell the car as well.

So this is one of the important few points to note, especially in these cyberworld, as we do purchase alot of things through online. Do be aware on the rights that you are having, especially not just things that you buy from Lelong.com.my or Mudah.com.my, but very importantly, in the forums as the purchased may not be genuine or fitting the rules of the guideline. We have to beware as at the end of the day, the problem will lead to us, as we are the buyer, and we are not compensated even though we are not at fault. And realistically, if happen for a RM 100 item, that leads you to go to court to settle the issue, will you do it?

nemo.dat.quod.non.habet

Yes, Nemo dat Quod Non Habet is one of the most hard to pronounce at some point, but one of the most important rule in the Sale of Goods Act. In fact, it is very applicable in a lot of way. But before that, let us define in the Law scope of what Nemo Dat Quod Non Habet means:

Nemo dat quod non habet, literally meaning "no one [can] give what he does not have" is a legal rule, sometimes called the nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. This rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction (a bona fide purchaser); however it is often difficult for courts to make judgements as in many cases there is more than one innocent party. As a result of this there are numerous exceptions to the general rule which aim to give a degree of protection to bona fide purchasers as well as original owners (from Wikipedia.org)

To simplify it to Business Law context, "no one can give a better title than (from) what he has himself". As quoted in Section 27 of SOGA 1957, and this actually entails that the individual who purchased the item, whether is stolen or not, as with no recognition by the party who is considered uninformed or innocent for this case, the buyer are not entitled for the ownership of this.

With that some people may think, hey, I'm just a buyer who don't even know the origin of the products, and I'm the victim. How bout the stupid guy who sold me this thing, why doesn't he got any problem with that. Thus, we bring the story that our lecturer share during the class.

This is Mamat and he is happy to have recently bought a racing car from Jack. But later on found out that the car did not belong to Jack, but instead belonged to Paul. Jack had sold it to him without Paul's knowledge, authority or approval?
and in this scenario, the rule of Nemo Dat Quod Non Habet applied and Mamat had to returned the car to Paul.

But seriously, this case had brought numerous issues, especially for the judge, as some of the parties are innocent, lack of information given and etc. And we shall proceed with the next post of with the exceptions of the rules.

Sale of Goods

At some point, we can't stop cursing the slickest thing about lawyers' for defending some laws that in emotional or common sense, shouldn't be that way. For the record, we also should truly pity their hardship on learning every single thing and actually protecting the human rights'. The amount of studies and researches that they have to put on or reviewed through is far way more, and in fact, historians' reading may not be as much as them. While historians things are from the past, lawyers' element are from the past, now and future. And with every business when we usually talk, we use the terms, friends are friends, and business means business. Just the same for lawyers, friends are friends, the rightful laws should remain as the rightful laws.

Although whatever I type maybe blabbing, but do not find it pointless for our next topic. Lawyers are the one that got us be more aware especially in purchasing our items and our rights as a consumer.

Let's start with the introduction.
The nature of Sales of Goods contract is just a little variation from some of the definition of contract law and company law whereby, "A contract of sale of goods is a contract whereby a seller transfers or agrees to transfer the property in good to the buyer for a PRICE(s.4(1)). Note the bold and capital words as it is something very essential to be aware of. The transfer of property in good is very important in the contract to state the VALUE OF OWNERSHIP that this contract shall shift the value of one to the other who purchased it. At the same time, we go for PRICE. The reason it is important to note that price in this context means sale, as if the statement is written without price, it simply means a GIFT. As a gift is a transfer of ownership as well, but without the price tags there.

In Malaysia, under Section 2 of Sales of Goods Act, Goods are defined to two categories namely i) goods may be either existing or future goods and ii) every kind of movable property.
By this definition the second one do seem ambiguous at some point, thus, the act have some exclusions so that it wouldn't confused the public. The acts excludes any actionable claims, money and land, as they are immovable. In addition to that, it includes growing crops and grass, stock and shares and things attached but severable to land.

Last but not least in this introductory of post of SOG, the most important elements with regard to the formation of contract are succumbed to three main points namely Parties to Contract, Offer and Acceptance (just like in contract law) and Price. Parties to Contract is rather simple as we know that whenever you want to buy something, there must be someone selling. Offer and Acceptance talks with regard that a price is offered by either party, upon agreed will become promise and for the contract to be established. Thus, according to s. 5(2) of SOGA, the offer and acceptance may be made in writing or/and by word of mouth or implied from conduct.

The final elements that shows the differences among other laws will be again, PRICE. In price, the contract can be formed in 4 various vital points.
The price can be fixed in various manners as;

1. Fixed by contract - that means it is bound by a contract for the price of the products
2. Left in a manner to the agree, eg. 3rd party
3. Determined by course of dealing of the parties
4. By subject to a reasonable price
   

Salomon v A Salomon & Co Ltd

For the past few weeks, we have been exposed to the understanding of company law. Company law which most popularly known as corporate law had lots of distinct ways that protects and disclosed the rights of the owners, and the consequences of ownership. It differs a lot as to compare with sole proprietorship and also partnership in a way that, both are different entity, that infers separate legal entity in every way of a company can be.

With one of the most interesting case that is brought on will be Salomon v A Salomon & Co. Ltd. And below are the excerpts that I got from Wikipedia for the actual story of the case;

Mr Aron Salomon was not a leather boot and shoe manufacturer. His firm was in Whitechapel High Street, with warehouses and a large establishment. He had had it for 30 years and "he might fairly have counted upon retiring with at least £10,000 in his pocket." He had a wife, a daughter and five sons. Four of the sons worked with him. The sons wanted to be partners, so he turned the business into a limited company. The wife and five eldest children became subscribers and two eldest sons also directors. Mr Salomon took 20,001 of the company's 20,007 shares.

The price fixed by the contract was £39,000, which was "extravagent" and not "anything that can be called a business like or reasonable estimate of value." Transfer of the business happened on June 1, 1892. Purchase money for the business was paid, totalling £20,000, to Mr Salomon. £10,000 was paid in debentures to Mr Salomon as well (ie, Salomon gave the company a loan, secured by a charge over the assets of the company). The balance paid went to extinguish the business’ debts (£1000 of which was cash to Salomon).

But soon after Mr Salomon incorporated his business, there was economic trouble. A series of strikes in the shoe industry led the government, Salomon's main customer, to split its contracts between more firms (the Government wanted to diversify its supply base to avoid the risk of its few suppliers being crippled by strikes). His warehouse was full of unsold stock. He and his wife lent the company money. He cancelled his debentures. But the company needed more money, and they sought £5000 from a Mr Edmund Broderip. They gave him a debenture, the loan with 10% interest and secured by a floating charge. But the business still failed, and they could not keep up with the interest payments. In October 1893 Mr Broderip sued to enforce his security. That was the end. The company was put into liquidation. Mr Broderip was paid but other unsecured creditors were not.

The liquidator met Broderip’s claim with a counter claim, joining Salomon as a defendant, that the debentures were invalid for being issued as fraud. The liquidator claimed all the money back that was transferred when the company was started: rescission of the agreement for the business transfer itself, cancellation of the debentures and repayment of the balance of the purchase money.

So in this case, from the passage above, it is very clear of something that the doctrine of corporate separate legal entity rules. As Mr. Broderip may have filed a lawsuit toward Salomon, whom apparently was the holder of that debentures, but with the company's name. Thus, Mr. Broderip first step is supposed to be suing the company namely A.Salomon & Co. Ltd., as Aron Salomon had nothing to be liquidated. His loss is limited to the liability or the amount that he invested on or having shares of the company. The blunder of the Mr. Broderip ended up, being able to take the money but was forced to claimed back as the liquidator claimed his debentures were invalid. Thus, in making corporate agreements or contracts with others, a very clear point is that, one should always be aware of the rightful person that should be issued your resources eg. money.

Let's say A is your good friend, a very very good friend. Thus, he is the owner of company Aiyo Bhd., and his total capital invested in the company is RM 5000, let's say. You, the good friend of A is a rich guy as well. And one day, when A's company were facing insolvency problem and soon lead to the company's in crisis that they have to tear up the company. The company is insolvent for about RM 1 million, and you are requested by your friend to help. So in this case, if you are issuing your nice big amount of money of cheque, do issue to the company and not to A (where he will beg you like s**t to send to him). Continually worse case scenario that the company is put into liquidation, if you give to the company, you are able to succumbed to earn back your money if strict procedures is followed. However, if you issued to your friend, suing him will only earned you back abruptly RM 5000, as that is his limited liability. So be aware of such scenarios, cronies are there a lot!

Holding and Subsidiary

AS we all know that in the whole world, there are a lot of types of businesses that had been going around. From sole proprietorship, to partnership and even until a company, we can see so many variations and so many entrepreneurs that come from each and every form of businesses. Some started small, while some strive for the biggest.

With every elements that form the true personality of a great businessman, we are going to a scope of big major companies. Our focus today will be on the company side whereby companies grew so big, they needed subsidiaries to exploit every field or industry they ought to excel.

My company selection will be one of the GLC and conglomerate company (which is one element of subsidiaries company) will be the company that provide me funding for my tertiary education, that is Sime Darby Berhad.

Sime Darby Berhad is the largest conglomerate in Malaysia and one of the largest in southeast Asia. In this company, its orbit are more than 270 operating companies in 23 countries, with its most extensive foreign operations in Hong Kong (which accounts for 25 percent of revenues), Singapore (14 percent), and Australia (11 percent)(The company generates 38 percent of its revenues domestically.). Sources written so nicely, of course adapted from their webpage.

The initial start up of Sime Darby started from plantation which is still the current most active division in SD, from rubber plantation and now, palm oil and many more. Agriculture based business is their forte before they started venture into more broadly diversified activities include a wide range of industries, with the core businesses being plantations (including oil palm and the company's original business, rubber), tire manufacturing, heavy equipment and motor vehicle distribution, property development, power generation, and engineering services. Other business operations include paint manufacturing, refrigeration product manufacturing, travel and tourism services, hospitals, and golf courses, which is KLGCC, that recently hold the Maybank Malaysian Open that prizes up to USD2million worth of competition! In addition to that, there are 3 more divisions that are still on their progress on working and getting stronger, that is Health Industry, which they are boosting more on this. Also, on ICT, as currently in Wisma Sime Darby they have a specific floor on utilization of ICT system in Sime Darby and to expand further. And last but not least, a division by itself, Yayasan Sime Darby had become independent from HR dept. just early this year, and are working strongly on Corporate Social Responsibility activity of Sime Darby. (can see the progress at http://www.yayasansimedarby.com)

From every divisions that they work, they have multiple subsidiaries which will be enlisted later to entail their coverage of nearly every field you can think of in Malaysia. The below show their principal subsidiaries.
Principal Subsidiaries: Consolidated Plantations Berhad; SD Holdings Berhad; Sime UEP Properties Berhad (51.2%); Tractors Malaysia Holdings Berhad (71.7%); DMIB Berhad (51%); Sime Tyres International (M) Sdn. Bhd.; Kuala Lumpur Golf & Country Club Berhad; Subang Jaya Medical Centre Sdn. Bhd.; Sime Engineering Sdn. Bhd.; Sime Coatings Sdn. Bhd.; Mecomb Malaysia Sdn. Berhad; Puchong Quarry Sdn. Bhd. (85.4%); Sime Inax Sdn. Bhd. (80%); Chubb Malaysia Sendirian Berhad (70%); Sime Rengo Packaging (M) Sdn. Bhd. (70%); Sime SembCorp Engineering Sdn. Bhd. (70%); Port Dickson Power Berhad (60%); Sime Darby Hong Kong Limited (74.9%); Sime Singapore Limited (69.1%); Sime Darby Pilipinas, Inc. (Philippines; 97.2%); Lec Refrigeration plc (U.K.; 98.5%); Sime Darby Australia Limited; Hastings Deering (Australia) Ltd.

Sime Tyres I believe a lot will know as one of the popular tyre brand ever since 1980's. Subang Jaya Medical Centre is one of their iconic stuff in the health industry.

Also, there are principal divisions mentioned earlier that leads up to Sime Darby as one of the conglomerate type of company, so big that they have more than 100,00 employees in total!

To read more on Sime Darby, click here!

KFC Snack Plate

Focus on my post and not on this ads!

Alright, let's do some topic regarding the Contract Law, although it's been near to a week after our paper.

The reason why I put up this picture serve a purpose, as we do know that for each agreement to be a contract and to make the contract enforceable, there are few steps and procedures to go through. And for advertisement, usually it is just an invitation to treat and while we think, they are offering to us what they have, we are wrong! We are offering to them what they have! As funny or ridiculous as it sounds, it actually makes sense in the law, especially in contract law!

Alright let's put a scenario in this post,

Uncle J: (walk into KFC, and look through the board) I want the Snack Plate!
Cashier L: Hi, one Snack Plate! What do you want for drinks Sir?
Uncle J: Pepsi will do!
Cashier L: Anything else Sir, you want to add? Cheesy Wedges? Coffee, Tea or ME? (just for joking purposes)
Uncle J: Nop, that will do!
Cashier L: Alright, that will be (the most current price) RM 10.65 Sir!
Uncle J: Okay!

A while later, while the attendants of the KFC is trying to bring the food for this uncle, the awaiting Uncle J quoted,
Uncle J: Boy, I want my meal EXACTLY like the picture in the board!

Thus, this leads to not confusion, some discussion!
First of all, the offer only start when Uncle J decided to purchase the food. Cashier L accepted and continued the process. A contract is made! With that, in acceptance wise, absolute as in the payment will be made in CASH, so no prob! And unqualified, that means one-time payment and no other things in between, true also! It is just merely that simple actually!

As we proceed further, BUT WHAT IF, Cashier L did not do as how Uncle J asked! That means he didn't serve him exactly like the pic, no drumstick, but two pieces of chicken breasts meat?
OR even, Uncle J is constantly not satisfied with the arrangement that the chicken is smaller than the picture and etc.? (trust me, this things, does OCCUR)

In regard to offer, Uncle J is the one offered to pay the price, and Cashier L main unqualified term is not just one time payment, but to fulfil the required as how the order should come in. In considering, the pieces or arrangement of the plate, it should not be an ISSUE because unless the statement was made earlier during the OFFER stage, whereby while offering, the terms are stated clearly, if not Cashier L arrangement are not deemed to be a problem! In a lawsuit, let's say they pursue this case (don't be surprise, same case happen in the TGV Cinema in KLCC last Saturday when I was there), point it out for me if I'm wrong, Cashier L will have the advantage as performing as accordingly, while Uncle J slip the offering stage further.

comments is very encouraged! thanks

Feng Shui

As this few days is the festive celebration for the Chinese in Malaysia, Taiwan, China and Hong Kong and Vietnamese in Vietnam. This is the celebration called the Lunar New Year whereby the year is determined by the moon as what the ancient people believe last time.

Thus, during this celebration, there are always superstition, do's and don'ts in the Chinese community. In every aspect from dressing, foods, home decorations and etc., Chinese the color of RED brings luck and fortune, that's why we will put firecrackers as to bright up the hope for those benefits. Fish, poultry, and lots other foods are essential to bring you good harvest and more to come in the future. Each and everything brings a certain measure of good things to us.

That is just something old-school, and as time goes by, Chinese become more peculiar and more sensitive towards certain issues that even the birth year, whereby we have ox, pig, dragon, snake, rabbit, horse, monkey, goat, dog, and this year, the year of the Tiger. Even this zodiac become something superstitious which bring in another element of wider and comprehensive knowledge of Feng Shui.

Personally, Feng Shui on wind, sun, water and landscape is quite true as my brother who took Architecture and Civil Engineering as a degree did mentioned. So much so that even those Dummies book have the knowledge for Feng Shui. However, looking on Feng Shui on zodiac and predicting our years is rather vague.

This is not that I want to counter whatever those Feng Shui master said and definitely I'm someone who will listen and take the good of it. However, this year, it bumped into me to listen to up to 3 sources of Feng Shui. I was born in the year of the Dragon and in fact, three different sources tells me different things. One say good, but must be careful, one say bad, and real bad and lastly, rather neutral.

Thus, the reason for this post is this, one Feng Shui master can tell you that you should be careful on your health, eat more vegetables, do not always think opportunity is always good as it may be an loopholes and etc. The problem is this, everything they said is ambiguous. Every good thing they mentioned there is bad thing coming in, and every bad thing they mentioned, it will always comes off good. And since they are talking without paying any money, suing them means no point, as if you say you got a bad accident, they will say, YES I Told you. But if you tell them, don't have also, although a lot would not challenge that, he will say, yes, things are turning better.

So the speculation of this post is like this, whatever statement that they make, we never know whether is an OFFER or INVITATION TO TREAT. We can say yes and say no, thus, it may lead to an acceptance in the knowledge. But however, with all the thing that this contract may be legal, one problem arises, which is, is the contract voidable or not and etc. which I will discuss in the next post.

This is Eric here writing, in care of listening to the right things for yourself.

Jokes: Laws on Girls

1.If u think a girl is beautiful, she’ll always have a boyfriend to confirm that

2. the nicer she is…the quicker u will be dumped!!!!!

3. The more the makeup, worse the looks…

4. “99% of the girls in this world are beautiful. Remaining 1% would always be in your company.”………… …..100% true

5. The guy standing next to a beautiful girl can never be her brother.

6. If by any chance the girl you like , likes you too, she will let you know in about 10 years from now ,when you are committed..

7. The more you ignore a girl, the more she’ll want to be friends with you.

8. Theory of relativity.. ….

The more u run towards a hot chick….the more she goes away from u…

9. Rule 1: Even if you got her out alone… just when you are about to let her know about your feelings…she will spot a long lost friend( I guess from Kumbh ka Mela)

Corollary to rule 1: The more desperate you are to tell your feelings to a girl on a private chat, the more probability the long lost friend she discovered is a handsome superman, who beats you in everything 9:1

Axiom 1: The more dedicated you are to the girl, the longer it takes before things work out, but ultimately it will (somesmile for the guys)

10. the day the chick you really like comes and speaks to you will be the day when-

1. You are dressed badly
2. You forgot to brush your teeth for the first time in your life
3.Have a bad hair day

11. all the good girls are either nuns or married .the rest go around with u and ruin ur money,health and leave u a total wreck.

12. the more seriously u like a girl…the more seriously her dad will hate u

13. the love you shower a girl with is directly proportional to the number of bullets her dad will be showering at you

Speculation Case: Condom

This is merely an exercise for myself to debate. Anyway, as mentioned in the previous post is that, Axe Effect do not even say the percentage. As with condom packs, they state clearly that there is no method that prevents 100% from pregnancy, or any sexual transmission diseases.

But usually, with those qualifications and branding that yes this condom can provide you a certain protection, Durex may be the one that is meeting the requirement, and thus, more costly compare to the market.

So the question is like this, if some countries produce their own latex condom and mentioned the same exact same thing that Durex mentioned, and say they could not 100% from pregnancy and etc. So does it mean that when someone contracted the disease or got pregnant after using the condom, they are not allowed to sue the defendant (the company) in whatever way, since they already quoted no 100% guarantee. This may sparks more discussion which I may entail further in later learnings, but to one extent, does it mean condom company are very well on the safe side?

The Axe Effect - Funny Case but Worth Learning

After watching the above video, kindly read the below case.

Unable to attract even a single girl, frustrated man sues Axe

New Delhi. In what could prove to be a major marketing and legal
embarrassment for Hindustan Unilever Limited (HUL), a 26-year-old man
has filed a case against the FMCG company, which owns the Axe brand of
men grooming products, for ‘cheating’ and causing him ‘mental
suffering’. The plaintiff has cited his failure to attract any girl at
all even though he’s been using Axe products for over seven years now.
Axe advertisements suggest that the products help men in instantly
attracting women.

Vaibhav Bedi, the petitioner, also surrendered all his used, unused and
half-used deodorant sprays, perfume sticks and roll-ons,
anti-perspirants, aftershaves, body washes, shampoos, and hair gels to
the court, and demanded a laboratory test of the products and narcotics
test of the brand managers of Axe. Vaibhav was pushed to take this step
when his bai (maid) beat him with a broom when he tried to impress her
after applying all the Axe products.

No girl ever asked Vaibhav to call her

No girl ever asked Vaibhav to call her

“Where the **** is the Axe effect? I’ve been waiting for it for over
seven years. Right from my college to now in my office, no girl ever
agreed to even go out for a tea or coffee with me, even though I’m sure
they could smell my perfumes, deodorants and aftershaves. I always
applied them in abundance to make sure the girls get turned on as they
show in the television. Finally I thought I’d try to impress my lonely
bai who had an ugly fight with her husband and was living alone for over
a year. Axe effect my foot!” Vaibhav expressed his unhappiness.

Vaibhav claims that he had been using all the Axe products as per the
company’s instructions even since he first bought them. He argued that
if he couldn’t experience the Axe effect despite using the products as
directed, either the company was making false claims or selling fake
products.

“I had always stored them in cool and dry place, and kept them away from
direct light or heat. I’d always use a ruler before applying the spray
and make sure that the distance between the nozzle and my armpit was at
least 15 centimeters. I’d do everything they told. I even beat up my
5-year-old nephew for coming near my closet, as they had instructed it
to keep away from children’s reach. And yet, all I get is a broom
beating from my ugly bai.” Vaibhav expressed his frustration.

Vaibhav claims that he had to do go a lot of mental suffering and public
humiliation due to the lack of Axe effect and wants HUL to compensate
him for this agony. An advocate in Karkardooma court, who happened to
mistake Vaibhav for some deodorant vendor when he entered the court
premises with all the bottles, has now offered to take up his case in
the court. HUL has been served a legal notice in this regard.

HUL has officially declined to comment on the case citing the subject to
be sub judice, but our sources inform that the company was worried over
the possible outcomes of the case. The company might argue that Vaibhav
was hopelessly unattractive and unintelligent and didn’t possess the
bare minimum requirements for the Axe effect to take place. Officially
HUL has not issued any statement, but legal experts believe that HUL
could have tough time convincing the court.

“HUL might be tempted to take that line of argument, but it is very
risky. There is no data to substantiate the supposition that
unattractive and unintelligent men don’t attract women. In fact some of
the best looking women have been known to marry and date absolutely
ghoulish guys. I’d suggest that the company settles this issue out of
court.” noted lawyer Ram Jhoothmalani said.

The worth pursuit of this case is that, from the advertisement, and from Axe Effect is trying to give every impression in everybody's mind is that, if you use Axe, there should have girls to approach you. However, if you think in Mathematical and Probabilistic approach combine with some Law Elements, there are no definite or a certainty that this will work. They did not state out the percentage that you will be in which category. In fact, even Hand Sanitizers that promise 99.9% killing of germs can argued that you are the odd 0.01% to be infected.

Thus, in this case, and in every Axe Effect ads, you can actually see is that, they are again attracting you, but it is Invitation to Treat. It is never an OFFER in that way. Because, in an OFFER, the plaintiff can say YES or NO! The ads did not prompt to you whether is YES or NO for you. Thus, this became very debatable by the poor young guy to sue Axe for the Axe Product. Thus, the acceptance is again, NOT ABSOLUTE making this contract not legally binded. So sorry to say to Mr. Vaibhav.

Tutorial 2: Legal Framework of Multimedia

In Tutorial 2, dated 8th February, we are discussing part of the Contract of Law topic. During that scope, we entail only whether the agreement or contract has the rightful elements in it. As such, one of the most important question in every legally binding contract will be, is there an OFFER made?

Offer recording under Section 2(a) of Malaysian Legal System questions, whether is there offer made by one party to the another. Just like if I'm offering to sell my phone but at the same time, this can be misleaded with INVITATION TO TREAT. Whereby, someone who wanted to sell the phone is just testing the market and do not wholly wanted to sell the phone as for example. With that, the next step under Section 2(b) will be ACCEPTANCE. With regard to that, we are taught to understand, upon an offer, is there any acceptance made and from there to conclude whether the agreement is on or not.

As for the scope thus far, I will review back one of the group activities that me and my friends did regarding the story of Jay.

The excerpt is as below;

One day, Jay saw a banner hanging in front of her favourite cassette outlet in Alamanda which reads: "BIG SALE! LATEST TOO PHAT'S ALBUM IS UP FOR GRAB WITH 50% DISCOUNT! LIMITED STOCK! HURRY, HURRY, HURRY!" After reading it, Jay immediately jumped in the outlet and said she wanted that album at the said discounted price. But to her disappointment, the shop owner said that the cassette is now sold at normal price. Can Jay sue the shop owner for breach of contract? Discuss according to Contracts Act 1950 and relevant decided case(s)

As this is the first time for us to do such activity, we were rather do not where to start. Our lecturer mentioned that for every justification you made, you have to argued with reasons (as usual), justification from previous cases (Stare Decisis) and according to the Malaysian Legal System. Thus, I suggested we come into a role play to debate the situation.

Jay: Hi I will like to purchase the Too Phat's album at that stated price.

S/Owner: I'm sorry, it is now selling at normal price already.

Jay: Why is it so, come on, you guys put up the ads and you should be responsible for that?

S/Owner: (Thinking) Actually we did write Limited Stock.

Jay: Then since the stock is finished, you should just take the banner down

S/Owner: (Thinking) Yea, I was just about to take off the banner

Jay: (rather not satisfied) How many amounts of stock is your limited stock? 10? 5? 1?

S/Owner: This is up to our company's discretion and definitely it is Privacy and Confidential.

Jay: Does it mean PnC which include selling only 1 as limited stock?

S/Owner: This is truly our company policy to fix the amount, so we cannot disclose it.

Jay: I can sue you regarding this you know, it is like a con case already.

S/Owner: We will try our best to maintain minimal level of insecurity for your side, but this is not within our reach.

Thus, from our debate we imagine ourselves in that situation, feeling pissed and angry at such situation. But does LAW sides on our side?

The situation goes like this , first of all, if this things is brought up to the court or consulting a lawyer, the first question is, is there an OFFER made? The answer is NO, what the banner states is merely an INVITATION TO TREAT. Invitation to treat is not an ofer, it is sort of preliminary negotiation to buy something. You will be surprised that, Goods displayed in the shops with price tag, advertisement in the newspaper and auction sale and tender. Although Jay accepted that deal, but that wasn't an offer making the acceptance not ABSOLUTE.

In refer to the previous case, it will be Carlill v. Carbolic Smoke Ball Co. Ltd Case whereby an ads by the defendant (the company) stating that whoever who takes the medicine and do not recover, will be given 1000 English pounds. However, when Carlill the plaintiff, who did not recover from her influenza sued the company, this case was brought up and results in saying that as INVITATION TO TREAT. (CASE LIKE HYDE AND WRENCH CAN BE JUSTIFIED AS WELL)

Thus, from there, we get to know that with Advertisement flaunting our minds and heart, we should be aware that an offer and acceptance is the initial steps to make every legally binding contract. Lessons Learnt!

Contact Me

As I'm a finance student, majoring in Financial Engineering, completing in one of my subject in the course structure namely Business Law BBL2214, under the guidance of a lecturer, who is a Doctorate of Law, but name shall not be disclosed due to privacy and confidential matter.

I may not be good in law, and probably had offended some of readers or viewers in my views and opinions in this blog, and if this blog caused any discomfort to your side and you wish to advise, discuss or consult me, kindly contact me through email by sending the mail to ericseah_rkg@yahoo.com.

I will respond ASAP, thus, do no worry!

About Me

I'm a normal person with no extended power, unlike those in HEROES..just a normal person hoping to live a normal life..and just to blog around to share my experiences and thoughts..come on..blogging is one's liberty to talk..bla..

Yeap, that is how I used to put it in my blogger place. However, in this very blog, I'm showing the different side of me, which in what I'm pursuing as a Financial Engineer, the tendency to speculate. Thus, in LAW, however, it may not happen that way, but I'm doing that.

A New Layout

Hi guys, I've changed my blog template to a newer URL and template as my previous one is my personal blog and it is quite complicated with the some of the content seem unrelated. Thus, after much consideration and time of selecting the best template, I've chosen this template.

I was looking for a template that give the perception of Law, Politics or Justice, but unfortunately, most of them did not meet my criteria. Thus, I'm using this to show that, I'm the writer of this blog, with my ideas and opinions on LAW and speculate on it. Thus, the name and the design is as it is now. However, maybe more enhancements will be put up as well.

Doctrine of Stare Decisis

The Doctrine of Stare Decisis is perhaps one of the most important studies in the field of law that was practise ever since from 1820s in the Supreme Court of England. In fact, from our lecturer, this is one of the most interesting area that cramps all the law students very much.

Adapted from Wikipedia,

Stare decisis (Latin: [ˈstaːre deːˈkiːsiːs], Anglicisation: [ˈsteɹɪ diˈsaɪsɪs]) is the legal principle by which judges are obliged to obey the precedents established by prior decisions. The words originate from the Latin phrase Stare decisis et non quieta movere, "Maintain what has been decided and do not alter that which has been established".

In the United States, which uses a common law system in its federal courts and most of its state courts, the Ninth Circuit Court of Appeals has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

In fact, this Doctrine as mentioned by my lecturer is that, most British colonised country will probably practise this doctrine. The easier understanding of this doctrine is that, "judges are bound to follow the decision made by other judges before them in dealing with cases with similar facts, whether is horizontally or vertically". Horizontally applies whereby the decision is bounded by earlier judges with the same level as the one using it. Vertically is like a superior to subordinate, whereby the one practising now is folowing the decision from a higher court or superior court.

And probably Stare Decisis is the one that makes law really hard, as they truly need to memorize and research a lot whenever they are going for a legal suit. And probably this makes two statements fairly accurate.
One will be by George Santayana, "Those who don't remember their history, are condemned to repeat the same mistake again".
Second, "The more research, just like any fields that you made, the more meticulous and trustable your information are".

Back to the topic, although Stare Decisis may meant that way, it is not as easy as is seem. Learning from my lecturer and also my law friends, not all the cases are the same and they varies, due to generation differences, technology and lots of evolvement. Thus, a lot of justification must be made as similar as possible to the case that is brought forward. But truly, it is not that easy, not just in pointing out the similarity, but to convince people that every information delivered makes hell of a sense.

So from there, we can see two things, the normal two things of advantages and disadvantages. The questioned that was brought up to me, that leaves me mumble something that I understand myself. From the positive point of view, it brings efficiency. Simply, you do not have to waste your time doing the same thing that was done earlier. In another word, REFERENCING. Apart from that will be the stability in law, that through either cultivation or cases from centuries ago, people know what is allowable and what is not. From the sources of Wiki Answers, "...to promote a uniformity of law throughout the country. Different states are free to disagree among themselves as to what laws govern in their states, but since most court made law comes from common law England, many legal principles have the same roots. Courts of different states do try to make rulings in line with other states even though they do not have to."

Although uniformity of law may be seem as both positive and negative. The negative sidepoint will be that uniformity shows that everything that happen will be the same, and there are no OTHERWISE! To rule autocratically is good, but democratically, it may seem absurb. Also, the expectability of the results may seem quite the same. Let's say there are so many cases of raping in Malaysia, and most of them will likely to get the same punishment, and out of probably thousand, only one exceptional case may happen. This simply leads to the restrictions of Judge to command and to open up to new debate. Why? Because let's say, if horizontally, most people will accept the results, but vertically, everyone might be thinking that, is that Judge trying to outrun the law of the Supreme Court, or getting some flashlight for himself. Thus this is not developing the study of law. And as time goes by, back to the 1800, the mentality of people are much different, with humans nowadays slightly more fabricated.

Thus, from that as usual, let's speculate some real case that is happening, in fact TODAY! Back in 1998, one of the Malaysia's most bizarre political scandal that involve the Deputy Prime Minister, accused and found guilty of sodomising a guy. Ten years later, after he was released from the prison of his act in 2004, he is once again being accused in the same story, with his personal assistant as well. For many of us, who knew the true story behind the court, many of us have regretted that incident, simply the media is making a truly bad name of the accused. However, this time, media are so broad and many are well informed that 1998 case may have some slippage of information. But decision have be made, so in 2010, with February 3rd the first day where their case begin, does it mean, it will be using Stare Decisis again?