Contract Law in Malaysia – the law of capacity

September 20, 2017 Law

Question ( a ) :


Contract is an understanding that leads to lawfully adhering and lawfully enforceable between both parties, as stated by ( Latimer, pg275 ) . It is important to understand the significance of “contracts” , without an understanding which lawfully binds and enforced, there would be no concern. In Malaysia, there is contract jurisprudence in a legislative act, the Contracts Act, 1950. There are several elements of organizing contract, which are offer, credence, the purposes to make legal dealingss, consideration, capacity and certainty.

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Harmonizing to ( Abbott, Pendleburry & A ; Wardman, pg112 ) , capacity refers to the power to come in into any contract they wish. In Section 11 of Contracts Act 1950, every individual is competent to adhering a contract, when that specific individual is in the age of bulk, of sound head, and is non disqualified from undertaking in jurisprudence antecedently. But, for some peculiar group of single, there is no capacity of come ining into a contract for them, this peculiar group are bush leagues, mentally sick or inebriation and besides corporations.

Minor leagues

In Malaysia, a minor refers to anyone who below the age of 18, harmonizing to ( Lee, pg106 ) . Harmonizing to Age of Majority Act, 1971 stated that the age of bulk is 18 and supra.

Harmonizing to the instance of Tan He Juan v Teh Boon Keat [ 1934 ] , the complainant, who was an baby, executed the transference of land under the blessing of suspect. Then, tribunal held to declare the transference, and contract was null because of the engagement of bush leagues entered into a contract.

Based on ( Abbott, Pendleburry & A ; Wardman, pg112 ) , there are two rules in jurisprudence to regulate minor’s contract. First, it was formed to protect bush leagues to against their immatureness and lacking of experiences. Second, it is used so that the jurisprudence will non do unneeded adversity to people who deal an understanding with a minor. Therefore, contracts that child entered into will finally be nothingness, harmonizing to Contracts Act.

The jurisprudence seems to be prejudiced on grownups who deal with bush leagues. Therefore, to decline any unfairness, certain exclusions have been created to avoid bush leagues obtaining benefits with the being of this jurisprudence.

  1. ‘Contracts’ for necessities

As stated by ( Nabi Baksh and Arjunan, pg173 ) , under subdivision 69 of the Contracts Act, if an person is supplied by another person with necessities that suited to one’s status in life, supplies is able to reimbursed from such individual’s belongings. This subdivision may supply a broader range of facts. Therefore, harmonizing to ( Elliott and Quinn, pg57 ) , ‘necessaries’ means goods that is significantly for a minor and it is suited to the status in life. Such goods are including nutrients, shelters and apparels.

Court will be make up one’s minding whether if a contract is necessities ; hence, tribunal will first find whether that specific goods are considered important and suited for minor’s status in life, so tribunal will detect and understand whether goods are in fact of necessities for the child.

In Government of Malaysia V Gurcharan Singh & A ; Ors [ 1971 ] instance, scholarship understanding that involved by an baby has become portion of necessities under virtuousness of Contracts ( Amendment ) Act, 1976, and hence such understanding was valid, based on ( Nabi Baksh and Arjunan, pg173 ) .

  1. Fraud by Minor leagues

By following the common jurisprudence, a child may be sued if one is involve in civil wrongs or any improper act, this stated by ( Nabi Baksh and Arjunan, pg174 ) . Therefore, a child will finally be sued without wavering the age of being in minority. However, there is an indirect enforcement for minor to come in a contract which purportedly to be null which as stated earlier. Therefore, it is unacceptable when a minor misrepresenting one’s age and convinced for any loan understanding and contract will be null.

The suspect in R Leslie Ltd v Sheil [ 1914 ] 3 KB 607 instance had made a loan understanding from plaintiff’s company, suspect was under the age of bulk and he lied about his age to come in a contract. In this instance, complainant failed to claim amendss from suspect because such action was indirectly implementing minor to come in an enforceable contract.

Under Contracts Act, it seems to be broad where contracts which involve the minority will finally be null even where a minor falsely imitate to be an grownup, except of contract for necessities. Therefore, under subdivision 115 of the Malaysian Evidence Act, when one deliberately made another party to believe the false, it shall non be in any suit.

  1. Damages

If a child had done civil wrongs and the goods were still in such individual’s manus, such person would be required to do damages, based on ( Nabi Baksh and Arjunan, pg175 ) . There are restriction of redress since it was merely available when child done a civil act.

In Malaysia, Contracts Act and the Specific Relief Act 1950 are responsible to take bend for the effort of alleviation.

  1. Marriage Contract

As stated by ( Nabi Baksh and Arjunan, pg177 ) , there is besides an exclusion when it comes to a matrimony contract. Under subdivision 4 ( a ) of the Age of Majority Act 1971, minority will non be influenced the capacity in viz. matrimony, divorce, etc.

In Rajeswary V Balakrishnan ( 1958 ) instance, tribunal held that a matrimony contract that a minor entered was really valid.

To be just, there is ordinance where for those who entered matrimony contract below 21 year-olds, it is a must to obtain father’s written consent before matrimony. This was seen under subdivision 12 of the Law Reform ( Miscellaneous Provisions ) Act 1976, based on ( Nabi Baksh and Arjunan, pg177 ) .

And hence, for any breach of contract of matrimony that involved bush leagues, such bush leagues may besides action or be sued.

  1. Employment Contracts

In line with ( Nabi Baksh and Arjunan, pg177 ) , for any immature individual that involved under subdivision 13 of Children and Young Persons ( Employment ) Act, it is capable for such persons to come in into contract of service. However, for such group of persons, there should be no amendss if there is any breach of contract. Such people are non required to avail ‘next friend’ or ‘guardian ad litem’ in supporting an action.

The Mentally Ill and The Intoxicated

  1. The Mentally Ill

In Malaysia, a individual who is mentally sick is unable to believe rationally and has troubles in doing judgement. Under subdivision 12, individual who suffers from mental upset is unqualified to come in a contract, based on ( Latimer, pg352 ) .

The significance of mentally sick may take to people avoiding their contractual duties, hence, individual who is mentally sick will finally be bound unless there is grounds to demo that such individual does non understand what have been go oning and other individual has already cognizant of his mental status.

Besides, a individual must be of sound head binding to a contract, as stated in subdivision 11 of the Contracts Act.

  1. The Intoxicated

As stated in ( Latimer, pg352 ) , if a drunkenness individual or whom is on drugs, it is judged likewise as the incapacity of mentally sick. When 1 has grounds to demo that one did non understand about the contract, or other party has known about his mental status, the contract will be null.


Harmonizing to ( Latimer, pg353 ) , corporation or besides known as company, refers to is an unreal creative activity of legal individual and corporation must be differentiated from stockholders. There are two types of company in Malaysia, which are registered companies and listed companies. Registered companies are corporation that registered under the Malaysia Act. Then, listed companies are corporation that issues bonds and securities to the populace. Based on Section 124 of the Corporations Act 2001, a company has the capacity to come in contract even though there are restrictions to come in a contract. Besides, under subdivision 19 ( 5 ) , companies shall besides action or be sued when there is issue occurs.

Question ( B )

Basically, the rule issue in this instance refers to whether Giri has or has no capacity to come in into a contract with Tobias, so, there should be adequate and valid grounds to turn out it.

In Giri’s instance, Giri, who is below the age of 18 old ages old is considered as an “infant” in jurisprudence, as referred to the words of Age of Majority Act 1971 in Malaysia. Thus, when there is an engagement of child in a contract, the contract will automatically be null except if there is any exclusion.

As seen in Government of Malaysia V Gurcharan Singh & A ; Ors [ 1971 ] instance, first suspect was a minor at that specific period of clip. Therefore, tribunal held that the contract was nothingness. Back to Giri’s instance, Giri is below 18 old ages old ; still in the age of minority. And hence, she has no power and capableness to come in such contract.

As stated earlier, if bush leagues involved in specific instances where there is certain exclusion that might take her to the capableness to come in a contract. Contracts of Necessaries that under subdivision 69 of the Contracts Act is the lone exclusion that child can come in into a contract.

To specify “necessaries” , it is really mentioning to goods that are needfully of import to an person for the status of life. Once it is proven that Giri’s laptop is non under “necessaries” , she will non be capable to come in into a contract.

For case, after the instance of Government of Malaysia V Gurcharan Singh & A ; Ors [ 1971 ] was held, contracts which involved instruction such as scholarship, has become ineluctable since instruction is ‘necessaries’ under Section 69 of the Act. Thus, bush leagues can come in a contract when it is proven that it is a Contracts of Necessaries.

The laptop that Giri wants to purchase is non ‘necessaries’ to her status in life, it is non a important good that brings importance to life. Hence, she has no capacity to come in in a contract.

As a concluding point, Giri has no capacity to come in a contract because she is a minor and laptop is non under “necessaries” in the status in life.


To reason the overall jurisprudence of capacity, it is mentioning to the power of an person to come in or competent adhering a contract. Then, restrictions were created to protect several groups of persons from come ining a contract, which are the bush leagues, the mentally sick and besides corporations. In Malaysia, bush leagues are persons who are below the age of 18 old ages old. Contracts that bush leagues entered into will be null because of their rawness. However, there are exclusions for certain bush leagues where they might hold the rights to come in into a contract. Besides, mentally sick individual is besides unqualified to come in a contract due to their disablement to believe. Last, corporation has power to competent into a contract and the contract will be valid.


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