Common Law Flashcards
Origin of Common Law
- Developed in the 12th century in England during Henry II’s reign.
- His legal reforms helped create a uniform common law across the country.
- It stems from decisions made by old common law courts.
- Common law is unwritten/unenacted, based on court decisions rather than legislation.
- Courts are typically bound to follow past rulings on similar disputes.
Old common law courts
- Court of Exchequer
- Court of Common Pleas
- Court of King’s Bench
Common law is also known as (3)
- Judicial precedent
- Judge-made law
- Case law
Rules of Equity
A body of rules first developed by Lord Chancellor (the King’s principle minister) and subsequently in the 15th Century by Court of Chancery.
Main purpose of rules of equity
- Supplement common law by correcting its defects and rigidity, providing fairer resolutions when common law fails.
- Those dissatisfied with common law decisions could petition the King, who would delegate the matter to the Court of Chancery.
Remedies created under Rules of Equity
Specific performance - compelling exact performance of a contract if damages are insufficient.
Injunction - preventing threatened or ongoing wrongs.
Restitution - forcing the return of ill-gotten gains to prevent unjust enrichment.
Conflict in Common Law courts
- The growing popularity of the Court of Chancery led to conflicts with common law courts.
- It was decided that in cases of conflict, equity prevails over common law.
- This is also reflected in section 3(2) Civil Law Act 1956 (Revised-1972), which states that in the event of a conflict between common law and equity, equity will prevail, unless otherwise specified by law.
To what extent is the Common Law applicable in Malaysia?
- Art 160 FC is the main provision that allows the application of common law.
- However, the extent of its application is elaborated in the Civil Law Act 1956 (Revised - 1972) by virtue of three sections:
➢Section 3 (General Application)
➢Section 5 (Specific Application)
➢Section 6 (Non-Application)
Section 3: General Application
- In Peninsular Malaysia, the common law of England and rules of equity as of 7 April 1956 apply.
- In Sabah, they apply as of 1 December 1951, together with statutes of general application.
- In Sarawak, they apply as of 12 December 1949, together with statutes of general application.
- Acts of Parliament of the UK apply to Sarawak under s3 & 4 of the Application of Laws Ordinance of Sarawak and listed in the 2nd schedule of Civil Law Act 1956.
Conditions for General Application 1
Absence of Local Legislation
- When local legislation does not address a legal issue (lacuna), English common law applies under s3 of the Civil Law Act 1956.
- In Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021], the Federal Court referred to English principles on contempt of court (actions or publications that undermine a court’s authority or obstruct justice - R v Gray [1900])
Conditions for General Application 2
- Cut-Off Dates
- The common law and rules of equity (and in Sabah and Sarawak, English statutes of general application) apply as they existed on these dates:
➢7 April 1956 for Peninsular Malaysia
➢1 December 1951 for Sabah
➢12 December 1949 for Sarawak
- In Jamil bin Harun v Yang Kamsiah & Anor [1984], the court held that modern English authorities are persuasive but not binding. Their application depends on states circumstances and must align with written law, ensuring fairness.
Conditions for General Application 2
Suitability for local circumstances
- It applies only if it suits the states circumstances and its people, with adjustments as needed.
- In Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389, the Federal Court outlined the process:
- Check for written law. If applicable law exists in Malaysia, it takes precedence.
- If no local law exists, courts examine the common law as administered in England on 7 April 1956 (for West Malaysia).
- Courts consider whether local conditions permit full or partial application.
- If English law is unsuitable, courts can reject it and formulate Malaysia’s own common law, drawing from various sources, including post-1956 English law or laws from other jurisdictions.
Section 5: Specific Application
- Addresses the use of English law in commercial matters.
- In the absence of local law, English commercial law applies in Peninsular Malaysia (excluding Penang and Malacca) as it was on 7 April 1956.
English Commercial Law
- Partnerships
- Corporations
- Banks and banking
- Principals and agents
- Carriers by air
- Land and sea
- Marine insurance
- Average, life and fire insurance
- General mercantile law
Section 5 for Penang, Malacca, Sabah and Sarawak
English commercial law applies as it was in England at the relevant time, without a specific cut-off date. However, this only applies if no Malaysian written law governs the matter.
