Wednesday, March 31, 2010

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?

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