Malaysia legislation
Section 46
Section 46
Devolution of joint rights
When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of the deceased person jointly with the survivor or survivors, and after the death of the last survivor, with the representatives of all jointly.
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A, in consideration of RM5,000 lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies. The right to claim performance rests with B’s representative jointly with C during C’s life, and after the death of C with the representatives of B and C jointly.
Time and Place for Performance
Time for performance of promise where no application is to be made and no time is specified 47.
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation—The question “what is a reasonable time” is, in each particular case, a question of fact.
Time and place for performance of promise where time is specified and no application to be made 48.
When a promise is to be performed on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on the day and at the place at which the promise ought to be application performed.
A promises to deliver goods at B’s warehouse on the 1st of January. On that day A brings the goods to B’s warehouse, but after the usual hour for closing it, and they are not received. A has not performed his promise.
Application for performance on certain day to be at proper time and place 49.
When a promise is to be performed on a certain day, and the promisor has not undertaken to perform it without application by the promisee, it is the duty of the promisee to apply for performance at a proper place and within the hours of business.
Explanation— The question “what is a proper time and place” is, in each particular case, a question of fact.
Contracts 37
Place for performance of promise where no application to be made and no place fixed 50.
When a promise is to be performed without application by the promisee, and no place is fixed for the performance of it, it is the duty of the promisor to apply to the promisee to appoint a reasonable place for the performance of the promise, and to perform it at that place.
A undertakes to deliver a thousand gantangs of rice to B on a fixed day. A must apply to B to appoint a reasonable place for the purpose of receiving it, and must deliver it to him at that place.
Performance in manner or at time prescribed or sanctioned by promisee 51.
The performance of any promise may be made in any manner, or at any time which the promisee prescribes or sanctions.
(a)
B owes A RM2,000. A desires B to pay the amount to A’s account with
C, a banker. B, who also banks with C, orders the amount to be transferred from his account to A’s credit, and this is done by C. Afterwards, and before A knows of the transfer, C fails. There has been a good payment by B.
(b)
A and B are mutually indebted. A and B settle an account by setting off one item against another, and B pays A the balance found to be due from him upon such settlement. This amounts to a payment by A and B, respectively, of the sums which they owed to each other.
(c)
A owes B RM2,000. B accepts some of A’s goods in reduction of the debt. The delivery of the goods operates as a part payment.
(d)
A desires B, who owes him RM100, to send him a note for RM100 by post. The debt is discharged as soon as B puts into the post a letter containing the note duly addressed to A.
Performance of Reciprocal Promises
Promisor not bound to perform unless reciprocal promisee ready and willing to perform 52.
When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise.
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(a)
A and B contract that A shall deliver goods to B to be paid for by B on delivery.
A need not deliver the goods unless B is ready and willing to pay for the goods on delivery.
B need not pay for the goods unless A is ready and willing to deliver them on payment.
(b)
A and B contract that A shall deliver goods to B at a price to be paid by instalments, the first instalment to be paid on delivery.
A need not deliver unless B is ready and willing to pay the first instalment on delivery.
B need not pay the first instalment unless A is ready and willing to deliver the goods on payment of the first instalment.
Order of performance of reciprocal promises 53.
Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and, where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
(a)
A and B contract that A shall build a house for B at a fixed price. A’s promise to build the house must be performed before B’s promise to pay for it.
(b)
A and B contract that A shall make over his stock-in-trade to B at a fixed price, and B promises to give security for the payment of the money. A’s promise need not be performed until the security is given, for the nature of the transaction requires that A should have security before he delivers up his stock.
Liability of party preventing event on which contract is to take effect 54.
When a contract contains reciprocal promises, and one party to the contract prevents the other from performing his promise, the contract becomes voidable at the option of the party so prevented;
and he is entitled to compensation from the other party for any loss which he may sustain in consequence of the non-performance of the contract.
Contracts 39
A and B contract that B shall execute certain work for A for RM1,000. B is ready and willing to execute the work accordingly, but A prevents him from doing so. The contract is voidable at the option of B; and, if he elects to rescind it, he is entitled to recover from A compensation for any loss which he has incurred by its non-performance.
Effect of default as to that promise which should be first performed, in contract consisting of reciprocal promises 55.
When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promisor of the promise last mentioned fails to perform it, the promisor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contract for any loss which the other party may sustain by the non-performance of the contract.
(a)
A hires B’s ship to take in and convey, from Kelang to Singapore, a cargo to be provided by A, B receiving a certain freight for its conveyance. A does not provide any cargo for the ship. A cannot claim the performance of B’s promise, and must make compensation to B for the loss which B sustains by the non-performance of the contract.
(b)
A contracts with B to execute certain builders’ work for a fixed price,
B supplying the scaffolding and timber necessary for the work. B refuses to furnish any scaffolding or timber, and the work cannot be executed. A need not execute the work, and B is bound to make compensation to A for any loss caused to him by the non-performance of the contract.
(c)
A contracts with B to deliver to him, at a specified price, certain merchandise on board a ship which cannot arrive for a month, and B engages to pay for the merchandise within a week from the date of the contract. B does not pay within the week. A’s promise to deliver need not be performed, and B must make compensation.
(d)
A promises B to sell him one hundred bales of merchandise, to be delivered next day, and B promises A to pay for them within a month. A does not deliver according to his promise. B’s promise to pay need not be performed, and A must make compensation.
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Effect of failure to perform at fixed time, in contract in which time is essential