The issue is
whether David can claim for the balance of the part-payment.

 

Section 2(d) of
the CA 1950 states that when at the desire of the promisor, the promisee or any
other person has done or abstained from doing, or does or abstains from doing,
or promise to do or to abstain from doing, something, such act or abstinence or
promise is called a consideration of the promise. This also can be defined as a
bargain between parties for an essential reason to enter into a contract (Property, 2010).

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There are three
types of consideration which is executory, executed and past consideration.
Executory consideration is a promise in exchange for a promise. Executed
consideration means a promise for an act. For instance, reward will be given to
a party as such an act has been performed. Meanwhile, past consideration can be
defined as a promise subsequent to or in return for an act that has already been
performed (Fatimah, 2013)

 

In Malaysia,
payment of lesser sum is a satisfaction to pay larger amount of money. This can
be shown in the Kerpa Singh v Bariam Singh case. The defendant owed the
plaintiff more than RM 8,000. In order to settle the debt, the defendant son
offer a cheque RM4,000 asking to forgo the balance of debt. As the plaintiff
cash the cheque, it is consider that the plaintiff has accepted the offer (Walesvictoria,
2016).
This means that consideration must be take place before the construction of the
agreement and bound by both party.

 

On the other
hand, based on the English law relating to part payment, part payment is a
valid consideration if there is a full satisfaction between parties. However,
it is not a good consideration for a promise to forgo the balance of the
part-payment. Under this law in Pinnel’s case, the payment of a lesser sum is
not a satisfaction to pay a larger amount of money.

This can be
prove in Pinnel’s Case (1602), the agreement to pay in full settlement of the
debt, £8.50 had been made between parties. The court held that the creditor
only bound to agreement of part-payment if there is a fresh consideration.
Consideration might be provided if the creditor agrees to accept part-payment
on an earlier date than the due date, chattel instead of money or part-payment
in a different place to that originally specified.

 

(b)

In conclusion,
David can claim for the balance of the part-payment, RM 1,000. This is because
both parties had made a fresh consideration to pay RM 6,000 instead of RM 8,000
due to dissatisfaction of work matters. David had made an agreement to pay RM
6,000 for part-payment. David can sue Thomas for the balance due. So, David can
claim Thomas and not to forgo the balance due of part-payment. Thus, there is a
valid consideration and they are bound by the contract.

QUESTION 2

(c)

The issue is
whether the contract between Winter Wunderland Ltd and Westfield was discharged
by breach of contract.

 

Section 40 of
the CA 1950 states that when a party to a contract has refused to perform or
disabled himself from performing, his promise in its entirety, the promisee may
put an end to the contract, unless he has signified, by words or conduct, his
acquiescence in its continuance (Teacher, 2017). The conditions
where breach might occur are anticipatory and actual breach. Anticipatory
breach occurs when prior to the due date of performance, the promisor
absolutely refuses or disables himself from the performance of his obligations.
Meanwhile, actual breach of contract sometimes on the due date of performance,
one party fails to perform his obligations. In such cases, the other party is
discharged from the performance if his obligations can hold the guilty party
liable for the breach of contract (Sehgal, n.d.). The consequence was
either the innocent party may continue with the contract and claim damages or
repudiate the contract. There is also discharge by frustration under Section
57(1) of the CA 1950 states that contract the performance of which is
impossible at the time it was made.

 

Section 76 of the
CA 1950 states that rescinds person of contract is entitled to compensation for
damages of non-fulfilment of the contract (Board, 2014). This can be prove
on Ban Hong Joo Mine Ltd v Chen & Yap Ltd case. The appellant had denied to
make fortnightly payments for the past action by the respondent. Held, the
respondent can treat the contract as being terminated and could liable the
appellant for the work that has been done.

 

The innocent
party may claim remedies for breach of contract such as specific performance.
Specific performance can be describe as when the court points the party to do
exactly what he has agreed in the terms of contract. Section 11(1) of the SRA
gives a situations when the court can give order of specific performance. The
situations are when the act to be done is a trust, when there is no standard
for ascertaining the actual damage caused by the non-performance of the act and
when the act agreed to be performed is such that its non-performance would not
afford sufficient relief. There is some situations which court cannot give
order under Section 20(1) of the SRA. On case Gan Realty Sdn Bhd & Om v
Nicholas Om, the court decided specific performance to impose a promise to sell
certain shares not available in the open market.

 

In conclusion,
there were anticipatory breach that occurs where Westfield already expected for
the breach before the time of the performance which was informed in early
September 2017 as the date of performance was on 1st October 2017.
The innocent party may continue the contract and claim damages. So, there was a
discharged by breach of contract.