LAW ON SALE OF GOODs

Cases of

LIM CHUI LAI v. ZENO LTD. [1964] 30M.L.J 314

 Nemo dat quod non habet literally meaning that "no one can give what he/she doesn't have". In an easier way to explain it, any sale of possession from someone who doesn't have the ownership, unless there is a permission of the right owner to sale. "Sale by person not the owner"  

Let's look at the case study, LIM CHUI LAI v. ZENO LTD to see what was happened previously in "Sale by person not the owner" situation and what were the judgments based on the issue.

Zeno LTD (Z) entered a contract to supply raw materials to Ahmad (3rd party) and delivered it to the site. Ahmad did not pay for the materials to Z. Later on he sold the materials to Lim and took the money for himself. Z brought an action to the court as they claimed they were the owner of the materials and did not authorize any transaction between Ahmad and Lim.

     Facts: 

      The chairman of the respondent company's board of directors entered into an agreement with a contractor, named Ahmad.  Ahmad also declared to the Authority of Petaling Jaya that the respondent company was the company to supply the construction material; thereby he also entered in a secured contract with the authority that to carrying out financing of his company's project. Thereafter, the respondent company bought the material and sent it to the construction site.

   

     Not so far from the time after contract, the respondent company realized that the Ahmad had some troubles with the authority of Petaling Jaya, and it caused to stop the contract. The respondent company told the authority that the material on the construction site was belonging to them and they also would sell them. 

   

     Somehow, the respondent company found out that the material delivered to Ahmad was no longer in the construction site, and Ahmad was the person who sold the material to the appellant for RM14,000 of which Ahmad get half of it as the payment.

    

The respondent company then requires the costs of material from the appellant.

Appellant argued that:

1. The respondent had delivered the material to Ahmad. So, Ahmad had to be deserved the name for the owner of the material. 

2. The material were the property of the partnership of the respondent and Ahmad. Therefore, Ahmad has the right to sell them.

    Held: 

      Ahmad was not the owner of the property, because the respondent was merely placing the material for the purpose of proceeding construction. Therefore, Ahmad was merely a bailer, but not the owner when the time he sold to the appellant.  Since, Ahmad was not the owner, he had neither the title nor the authority to sell the property. 

      unless According to Sale of Good Acts 1957, section 27, where goods are sold by a person who is not the owner thereof or who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the authority to sell.

Review to the historical case, Farquharson Brother & Co. v. C.King [1920] A.C.325

     Although, Ahmad insured the good, but it doesn't mean that he was the owner. So, there was nothing a bailer could to do with the material. Therefore, appeal dismissed. 

Opinion

The appellant should take serious on buy the goods from second or third person in the industry because them was not the owner of the goods. Written contract should be file or in others word is a receipt of the payment to the goods.  Because the sales will take advantage and counterfeit the payment and take a half of the payment. That is what Ahmad does with the Zeno companies. Based on the law Appellant cannot appeal because the contract is not illegal. Zeno can take their own goods from the appellant.

Malaysian Legal System

CASES OF

ERUTHIAM AROKIASAMY v. B M ENTERPRISE SDN BHD [2006] 2 ILR 852

INDUSTRIAL COURT, KUALA LUMPUR

AWARD NO. 622 OF 2006

MOHD AMIN FIRDAUS ABDULLAH

Summary

The industrial Court, constituted under the Industrial Relation Act 1967, deals primarily with trade disputes and therefore has jurisdiction own matters concerning employers, employees and trade unions. Industrial Court is an under superior court in Malaysia. My purpose to analysis this case is to know about the power of judgement and how strong the law in the Industrial Court.

Facts of the case:

The claimant, a lorry driver, had complained to his employer/company about having to work overtime but not being paid. According to the claimant, he was often asked to work beyond 5pm on weekdays and beyond 1pm on Saturdays. The company admitted to not according any overtime payment to the claimant, but contended that the claimant was forced to work overtime because of his own bad time management. Specifically, it was alleged that the claimant had chosen the wrong routes to deliver the goods, which could otherwise be delivered within his working hours.

The claimant was however persistent in the complaints, giving various reasons and justifications. The company, however, took the claimant's behavior in very negative light, and so, by letter dated 26 November 2001, terminated the claimant's services on the ground that the claimant had shown a "lackadaisical work attitude not acceptable to the company". At the hearing, the company sought to plead another reason for the dismissal, namely that the claimant was found to be redundant and had to be retrenched. The issue was whether the termination, on the facts, was with just cause or excuse.

Held:

On the question of retrenchment, all the three witnesses produced by the company, especially its Managing Director did not give a shred of evidence concerning the recession that was supposed to have affected the company. This reason was therefore not a bona fide one. The Court perused the definition in the Oxford Advanced Learner's Dictionary which defined "lackadaisical" as "not showing enough care or enthusiasm". It further observed that this was the sole ground given in the termination letter, namely "due to your work attitude or lackadaisical attitude". Accordingly, the Court was of the view that the Claimant had not committed any misconduct to justify a dismissal.

The Court held that a workman who does not show enough care or enthusiasm in his work but nonetheless plods on with the work does not necessarily commit misconduct. The Court further observed that the written submission of the company was sprinkled with words of falsehood, fabrication, lies and the like which were not pleaded. The company, in the result, had failed to prove poor performance which was the reason cited for the dismissal. Although the company claimed to have verbally warned the claimant for his "lackadaisical attitude' on numerous occasions, the company witnesses did not adduce an iota of evidence to support this. For the above reasons the Court held that upon the evidence and the arguments adduced, the company had failed to discharge the burden of proving on a balance of probabilities that the dismissal was with just cause or excuse. On the facts and in the circumstances, the Court held that company's basic argument that the claimant had shown poor time management and had taken the wrong routes in carrying out his deliveries could not hold water.

The Court proceeded to hold that where a workman has repeatedly complained to his employer about what appears to be legitimate grievances relating to having worked contrary to a fundamental term of his contract of service, but the latter had remained silent and did not respond and instead cut short the employee's employment by suddenly issuing a termination letter, the conclusion could only be that the complaint had merit or some merits. The Company was accordingly held to have dismissed the Claimant without just cause or excuse quashed.

Opinion

For my opinion the company of the claimant should be flexible based on managing employees shift because if the companies take serious about time the employees will not request work shift based on their opinion. Communication between the employees is very important to achieve want and need. Besides that give and benefit also prevent the employees to come to duties late. Terminated employees is the most hard to do because everyone has special protection in Law.

Are you risk-taker or not?

Are you risk-taker or not?
Talk about risk-taker in the business it mean you are giving your life on the business that you not really confirm that will bring you large of profit or not. Who is the person that risktaker? Normally people that risk-taker is create an new empire in the industry and invest mostly all of their money to build the business from the management till every single of department. Then them don't know whether their product or service get intention or interactive to the people surround them or not... but if you really brave and know your business gonna be viral in the industry keep moving forward organised it.
Type of people or who is not risk-taker businessman.
People who are invest small capital in their company or just build SME industry such as small stall that just only focus on one thing e.g nasi kerabu or nasi lemak for their signature dish. But did you agree that the people that label us not risktaker business is also inverst thousands of money to buy the material to start the business. Why I say that auntie that sale nasi lemak in the street is not risk-taker because if their unlucky on there business there can build again the new want easily because there just involve in small bankruptcy. People that take the risk is involved with large of capital sometime give their house or land to do loan...

ARE YOU AGREE?