Khamis, 4 Mac 2010



"Equity aids the vigilant, not the indolent"
This principle recognizes that an adversary can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date that the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice. The law encourages a speedy resolution for every dispute. It does not favor the cause of someone who suddenly wakes up to enforce his or her rights long after discovering that they exist. A long unreasonable delay like this is called Laches, and it is a defense to various forms of equitable relief.

"Between equal equities the law will prevail."
When two parties want the same thing and the court cannot in good conscience say that one has a better right to the item than the other, the court will leave it where it is. For example, a company that had been collecting sales tax and turning it over to the state government found that it had overtaxed and overpaid by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that the money really belonged to the customers of the company. Since the company had no better right to the money than the state, the court left the money with the state.

Section 3 of Civil Law Act 1956 (CLA) allows for application of English common law and rules of equity only. Section 3 provides that the common law of England including the rules of Equity as administered on the ‘cut-off’ 4 date in England is binding on Malaysian law. English judicial decisions decided after the ‘cut-off’ date only have persuasive effect on Malaysian law
The reception of equity in Malaysia can divided into 2 categories . first, historical reception of equity and judicial reception of equity.
The historical reception of equity began when the English clonized Malaya, they did not follow the legal traditions of malay but they brought and applicable their cultural including law to Malaya.
The reception of the English started in the first charter of Justice (COJ) 1807 where the statute of English Law was introduced in Penang. Then, widen in COJ 1826 into Singapore and Malacca. Until in Civil Law Act 1956 when Malaysia is established, it become important to harmonize the law to take in the states of Sabah and Sarawak.
So, the british came into Malaysia brought their laws and cultural. Then they applicable their laws into Malaysia through the legislature including acts or enactment.

Second, the judicial reception of equity. In the case of CHOA CHOON NEOH v SPOTTISWOOD, the court in determining the validity a trust, used the English rule against perpetuity and the concept of charity as determined by the English rule of charitable trust. Held, yahat it was not charitable and also offended the rule against perpetuity and the English law which is to be applied must take into account the local environment and sentiments. This cases shows that the principle og equity was applied in the case before.

In the case of YONG JOO LIN v FUNG POI FONG, the judje said that the principle of English law have for many years been accepted in the Federated Malay States where no other provisions has been made by statute. Section 2(1) of The Civil Law Enactment therefore only gave statutory reception to a practise which the courts had previously followed.
Based on the case, its is clear that statutes providing for the reception simply formalized a practise which had been long adopted by the courts.
Besides that, in the case of RE YAP KWAN SENG’S WILL, where the judge said that he does not think that anyone can cavil at the proposition that these states have been consistently to adopt the English rules and it applicable in local conditions.

Section ( s) 3 and s.5 Civil Law Act 1956 (hereinafter referred to as ‘CLA 1956’) provide for reception of English law in Malaysia.2 There are basically two differences between s.3 and s.5. Firstly, 3 applies to all law generally whereas s.5 only governs law relating to commercial matters.3 Secondly, s.3 allows for application of English common law and rules of equity only. By contrast, s.5 extends its application to English statutes.

Section 3 provides that the common law of England including the rules of Equity as administered on the ‘cut-off’ 4 date in England is binding on Malaysian law. English judicial decisions decided after the ‘cut-off’ date only have persuasive effect on Malaysian law. For s.5(1), in West Malaysia (other than Malacca and Penang), the ‘cut-off’ date for the application of English commercial law is similar to setion3. Section 5 For Malacca, Penang, Sabah and Sarawak, in the absence of Malaysian legislation, the present law in England continues to be applicable.6
generally.In West Malaysia, the ‘cut-off’ date is 7 April 1956; s.3(1)(a). In Sabah and Sarawak, the ‘cut-off’ date is 1December 1951 and 12 December 1949 respectively; s.3(1)(b) and (c).5 As at 7 April 1956.
6 This is due to the wording of s.5(2) which states that the English law to be applicable is that which isadministered in England ‘at the corresponding period’.

In applying s.3 and s.5 in determining the application of English law in Malaysia, it must befirst determined whether there is any written law in Malaysia governing the particularmatter in dispute. English law is not applicable if there is such written law. In the absenceof written law, the courts would determine whether the English law is suitable to be appliedin Malaysia. If the answer is in the affirmative, the English law is applicable in Malaysia.But this is subject to the qualification that judges can add conditions or limitations to theEnglish law if necessary due to local circumstances.
In situations where the written law in Malaysia is similar to English law, the English
judicial decisions continue to have a strong persuasive effect on Malaysian law. Even if s.3 and s.5 are not applicable, the Malaysian courts have the discretion to adopt the legalposition in England for the development of local laws.

Section 6 applies to immovable property and it prevents the application of English law relating to tenure or succession to any immovable property in Malaysia.

1 ulasan:

  1. This entry needs more improvement, grammatically-wise. Nevertheless, it is a good piece of work on the reception of sections 3 and 5 of the Civil Law Act 1956 in Malaysia.

    I would be honoured if you could give me permission to include some of your writings here in my blog. I am going to post a similar topic for my next entry.

    Check out my link below, sis... it's catered for law students like you =)


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