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English Law, Civil Law Act...

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The significance of the cut-off dates as provided in section 3 of the Civil Law Act 1956, in relation to the application of English law in Malaysia.

● Section 3(1) of the Civil Law Act 1956 provides that the courts in Malaysia shall apply the common law and rules of equity in England, the statutes of general application ( only applicable in Sabah and Sarawak) in the absence of written law on 7 April 1956 in Peninsular Malaysia, 1 December 1951 in Sabah and 12 December 1949 in Sarawak. ● Provided that the circumstances of the States of Malaysia and their respective inhabitants permit ● English common law and rules of equity and statutes of general application ( for Sabah and Sarawak only) administered in England on 7 April 1956 (Peninsular Malaysia), 1 December 1951(Sabah), and 12 December 1949 (Sarawak) can be applied to fill in the lacuna in the law. ● Referring to Lee Kee Choong v Empat Nombor Ekor Sdn. Bhd. (Peninsular Malaysia), the courts are restricted to adopt English law as administered at its effective date. In fact, the judge need not consider developments in English law after 1956 as any subsequent development in England is not binding. ● However, even the wording in section 3(1) of the Act that said the Malaysian courts shall apply English law existing on the specified dates, the courts may follow the developments in English common law. In Jamil bin Harun v. Yang Kamsiah, the counsel argued that Section 3 of the Civil Law Act 1956 prevent the courts in Malaysia from applying the common law after the effective date. The argument was rejected by the Privy Council as there is no written law in Malaysia that forbids the court from itemising the damage ( the main issue in the case). ● Not only that, but the judge also said that “The courts of Malaysia are free to take their own course.” Therefore, it is proven from this judgment, that any common laws after the effective date may be persuasive and can be followed but it is not binding. Thus, the rule of common law, equity, and statutes of general application on the effective date is legally binding and required to be followed whereas the rule of common law, equity, and statutes of the general application after the effective date may be persuasive. ● In fact, referring to the Commonwealth of Australia v Midford Sdn. Bhd., it is stated that even though Section 3 of the Civil Law Act 1956 only requires any Court in Peninsular

Malaysia to apply the common law and the rules of equity as administered in England on 7 April 1956, that does not mean that the common law and rules of equity as applied in this country must remain static and do not develop.

The scope and application of section 5 of the Civil Law Act 1956, with reference to the relevant cases ● Section 5 of the Civil Law Act 1956 provides the application of English Law in commercial matters ( partnerships, corporations, banks and banking, principals and agents, carriers by air, land and sea, marine insurance, average, life, and fire insurance et cetera) ● Section 5(1) of the Act mentioned that in the absence of any local written law, English laws as administered in England on 7 April 1956 shall be applicable to Peninsular Malaysia except for Melaka and Penang. ● On the other hand, section 2 provides that the application of the English commercial law in Malacca, Penang, Sabah, and, Sarawak is according to the corresponding period. Therefore, there is no effective date. ● In Malaysia, there is a written law concerning commercial matters which is the Sale of Good Act 1957. The Act came into force on 23 April 1957 to all Malay States except Malacca and Penang. It is enforced in Malacca and Penang on 23 February 1990. ● In the case of Tan Chong v Alan McKnight, a contract was entered into between 18 May 1973 to 6 December 1979. The applicable statute for this case was the United Kingdom Sale of Goods Act 1979 as the Malaysian Sale of Good Act 1957 only enforced starting on 23 February 1990 while the transaction was on the year of 1973 to 1979. ● However, even though written law regarding commercial matters exists in Malaysia, it is proven that it is not applicable in Sabah and Sarawak. ● Referring to the case of Low Hock Jee v Maybank Finance, the court held that the Malaysian Sale of Goods Act 1957 is not applicable to Sabah and Sarawak. So, there is no written law. Therefore, by virtue of Section 5(2) of the Civil Law Act 1956, it is concluded that the reference has to be made to the United Kingdom Sale of Goods Act 1979 as it is the law applicable to Sabah and Sarawak....