The Answer is Mr Justice Peter, a High Court Judge

Under the judicial precedent, the decisions of the higher courts are binding on the lower court. Previously, the judges has made the decision in similar situations that are binding upon future cases depending on the hierarchy of court. Judges must follow certain accepted principles which know as precedents and they are not allowed to bound by their own decisions as they. Exceptable it is overruled by a higher court in a later case. If not, once a precedent is made it remains binding on the lower court.

In the judicial system, the Superior Court was including Court of Appeal high Court in Malaya, Federal Court and High Court in Sabah and Sarawak. In the case, when in the year 2009, there are similar material facts to the said Court of Appeal before the High Court judge deciding the case in year 2010 and the Court of Appeal has made a certain decision, as the Court of Appeal is followed by the High Court on the hierarchy of the courts., the Mr. Justice Peter, High Court judge should following the decision there are made by the Court of Appeal in year 2009. In this situation, it is also known as “declaratory precedent as the judge merely applying an existing rule of law.” [1]

The functioning of the system of precedents is based on the inevitably the hierarchy of court and hierarchy of decisions. The general rule regulating the hierarchy if precedents is based on the principle that decisions if higher courts bind lower courts and some courts are bound by their own decisions.

Federal Court

Syariah Court

Native Court & Syariah Court

Sessions Court

Penghulu’s Court

Small Claims Court

Small Claims Court

Magistrates’ Court

Magistrates’ Court

Sessions Court

High Court in Sabah & Sarawak

High Court in Malaysia

Court of Appeal

Based on the hierarchy of judicial system above, High Court is under the Court of Appeal. In order lower court will be bound by the decision of higher courts in the hierarchy where the precedent to operate there has to be in existence a court hierarchy.

The example of this case is “KHALID PANJANG & ORS v PUBLIC PROSECUTOR (NO 2) [1964] 30 MLJ 108 (Federal Court). Based on the case, the High Court judge reject to follow the Privy Council case of Mirza Akbar v The King-Emperor, LR 67IA336 which interpreted section 10 of the Indian Evidence Act which was word for word the same as the relevant section of a local rule in Malaysia. The Mirza Akbar case was followed by the Court of Appeal of the Federation of Malaysia in the case of Liew Kaling & Ors v Public Prosecutor [1960] MLJ 306.” [2]

The other example of this case is Donoghue v Stevenson [1932] AC 562, HL. “On 26 August 1928, Donoghue, in Glasgow boarded a tramcar about thirty-minute distance to Paisley. [[[[Donoghue and a friend went Wellmeadow Café in the town’s Wellmeadow Place. A Francis Minchella-the café owner approached to them. Donoghue’s friend has paid for an ice-cream drink and a pear. Then the order was brought by the owner and the owner poured part of a bottle of ginger beer into a tumbler which has some ice cream. Some of the contents have been drunk by Donoghue and the rest of the ginger beer had poured by her friend into the tumbler. They discovered that the remains of a snail in a situation of decomposition has dropped out from the bottle of ginger beer into the tumbler. After that, Donoghue go to complain that she had some stomachache and the doctor diagnosed her get gastroenteritis and being in a situation of severe shock. At the 9 April of 1929, Donoghue had taken an action against David Stevenson, the aerated water manufacturer at Paisley, in which a damages for injuries make she claimed £500 sustained by her through drinking ginger beer which had been manufactured by David Stevenson.

The argument of law before the House of Lords was whether the defendant (Stevenson) owed by Donoghue a responsibility of care. The case was not at all tried on the facts.

According to Dicta of Lord Atkin: “The complainant showed that he has been injured by the breach of responsibility owed to him in the situation by the defendant to take rational care to avoid such injury”. the statute in Heaven v. Pender was ” obviously too wide.” “A morale of ethic wrongdoing (for) which the offender must pay.” by the concept of negligence. It is not necessary that every moral wrong could have an actual result in law so it must be finite to taking “. You can be common sense predict it would be likely to injure other people by the way to have a reasonable care to avoid acts or omissions.” My act or omission will proximately affect a neighbour who is a person so closely link with and straightly affected that I would have them in mind when I committed the law (or omission. It could be a serious flaw in the law if a consumer can not claim in circumstances for example a manufacturer negligently mixing poison into a drink.

Lord Buckmaster referring to the dicta of Brett MR in Heaven v. Pender and the decision in George v. Skivington (1867) LR5 Ex 1 (which were applied by Lord Atkin): “It is in my suggest better that they should be buried so securely that their perturbed spirits shall no longer vex the law.” You must take common sense care to prevent acts or omissions which you can reasonably foresee would be likely to injure other people.” [3]

Case law is the reported decisions of selected appellate and other courts (called courts of first impression) which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis. A case law as source of law we can called as judicial precedent. Let’s discuss about the strengths and weaknesses.

Strengths

Case law is make a certainly in the law so the solicitors and barristers can persuade their clients on the probable likely outcome of their case base on the previous of judicial decision.

Besides this, case law treated everyone is equally since the similar case are treated in a similar way, so this is in the interests of justice and fairness.

On the other hand, the judiciary are bound by precedent, lawyers and clients can be reasonable certain as to the likely outcome of any particular case on the basis of established precedent. As a result, most disputes do not have to be re-argued before the courts. It saves court time as for most situations there is already an existing solution so legal costs will be minimized as the matters is resolved quickly.

Weaknesses

However there are some weaknesses of case law. It makes confusion. Volume of cases is constantly increasing, hundreds of cases reported to each year, so judges and lawyers are compelled to engage in greater research and making it hard to find the relevant precedent which should be follow.

Moreover, may not create certainly that compounded by the ability of the judiciary to select which authority to follow and may refuse to follow precedent tends to distinguish cases on the facts.

The case law is too complex and slow to develop under the system of judicial precedent. The law cannot be changed until a case on a particular point of law comes before one of the higher appellate courts. This may cannot grow quickly enough to meet modern demands.

On the 29th October 2010, Steven advertised in the New Focus Paper, “Yamaha Piano latest model, excellent condition, RM15, 000, interested please call 016-1234567″. Steven is making an invitation to treat instead of an offer because advertising in a newspaper, magazines or on poster, displaying goods for sale inside the shop window or on a self-service store’s shelves will not be considered as an offer but instead it will be look as an invitation to treat, since the store cannot guarantee that they can provide the particular item for everyone who might want one.

An invitation to treat can be said as an indication that shows an individual’s willingness in negotiating a contract. In Harvey v. Facey, an indication by the owner that he might be interested in selling his property at a certain price, has been viewed as an invitation to treat. Similarly in Gibson v Manchester City Council the words “may be prepared to sell” were considered as a notification of price and not a distinct offer.

On the 1st November 2010, Tanny offered RM10, 000 to buy Steven’s piano after he has seen it. Tanny is making an offer and that makes Tanny an “offeror” (Section 2 (a)) and Steven is the one who being offered which is called “offeree” (Section 2 (c)).

Treitel had defined an offer as the declaration of the terms on which the offeror is willing to be bound with contract as soon as it is accepted by the offeree. Objective test (Smith v. Hughes) is used by courts to determine whether the parties have an agreement legally binding contract. In the Smith v. Hughes case, the court mentioned that the most important thing is how a reasonable person would view on the situation but not the party’s real intentions. This is mainly because of each of them would not wish to break their side of the contract if the action would cause him or her blameworthy to damages; it is opposite to the principle of certainty and clarity of the commercial contract. Detail and fair description of the item on offer and type of service, terms of payment and the date of payment, delivery date, and price are the minimum requirement for an offer, if any one of the minimum requirements is not being performed the offer of sale will be considered as an advertisement rather a legal offer seen as an advertisement.

On the same day Steven said to Tanny that he will not sell his piano below RM14, 000, he is making a counter offer to revoke the original offer made by Tanny. An offer can never be accepted at a future time if the offer has previously been destroyed. According to the Hyde v. Wrench (1840) 49 E.R. 132 case, where in response to an offer to sell an estate at a certain price, the complainant had made an offer to buy it at a lower price. The offer was refused by the seller and later the complainant wants to accept the initial offer. It was said that no contract was made as the initial offer no more exist at the time that the complainant tried to accept it, the initial offer had been revoked by the counter offer. In this case, Steven had turned himself from an offeree to an offeror and made a new offer to Tanny.

Steven also made an unilateral contract to Tanny by saying that he will not sell his piano to anyone else before 7th November 2010. In unilateral contract, promise is only made by one party. For example: Steven promises Tanny that he will not sell his piano to anyone else before 7th November 2010, Tanny is not obliged to accept Steven’s offer, but Steven is obliged to sell the piano to Tanny if he sent the letter of acceptance within the due date. Tanny will have a contract with Steven if he sent the letter of acceptance before 7th November 2010.

On the 7th November 2010, Tanny came back to Malaysia from Australia and he has not posting the letter of acceptance to Steven. Tanny has to accept the offer for the contract to be effective otherwise the contract will not take place. This is because the contract or agreement cannot be formed without an acceptance, the offer and acceptance must be communicated in order contract and agreement can be formed successfully. The offer between Steven and Tanny can last until 11.59pm 7th November 2010 before it went to expiry, this mean after 1 minute the proposal will collapse and no agreement will be made even if the letter of acceptance has been received by Steven.

On the 8th November 2010, Tanny post a letter accepting to buy the piano for RM 14,000. Action of Tanny has made the proposal made previously expired due to lapse of time; posting rule cannot take place even though Tanny has communicates with Steven because the letter is post after the deadline. Example case: Adam v Lindsett, Tanny’s section 2(c) acceptance letter is not valid because no acceptance was made before the deadline (7th November 2010) and so the deal collapsed as no agreement or contract was made.

There is an exception to the general rule of contract law in common law countries that acceptance takes place when both parties are communicated, which is the Posting Rule. According to the posting rule, an acceptance takes place when a letter is posted. One rationale given for the rule is that the offeror assigns the post office as the implied agent and therefore receipt of the acceptance by the post office is viewed as that of the offeree. The posting rule’s main effect is that the risk such as the acceptance being delivered late or lost in the post will be all placed upon the offeror. If the offeror is unwilling to take the risk, he can always demand an actual receipt as a condition before they are legally bound. However, if the offeree sent both a rejection and an acceptance (changed his mind), whichever communication that is first received by the offeror will takes place. The posting rule will only applied to acceptance. The establishment of the rule which a letter is consider as “posted” only when it is in the possession of the Post Office is in the case of Re London & Northern Bank [1900] 1 Ch 220. A letter of acceptance will only be considered “posted” if it is posted by the person him/herself but not handed to an agent to deliver, such as a courier. Postal rule will not stand after due date and the offer can be terminated if the offeree does not accept the terms of the offer set by the offeror. Offeror may also include the duration in which the offer will be available as a condition to the contract upon making an offer. The offer will be considered as terminated if the offeree fails to accept the offer within this specific period. Therefore the letter post by Tanny to Steven is not acceptance letter, it is a new offer offered by Tanny as he want to buy that piano at the price of RM 14,000. Tanny become an offeror and Steven is the offeree.

On the 11th November 2010, Steven received a letter sent by the Tanny. As the previous proposal collapse due to the deadline, the letter post by Tanny cannot be considered as letter of acceptance even if it is received by Steven, the letter post by Tanny will be considered as a new offer to Steven.