Incorporation by Reference – Explained

First we shall address what is actually meant by the term ‘incorporation by reference’

It is a means by which the parties to a contract make reference to a document or publication be it a standard form of contract, technical specifications or similar publication without the need of having to retype the whole of that document in order for it to form part of the documentation which together form the contract between the parties. Incorporation by reference is not to be confused with an implied term because reference is made to a specific document or publication whereas implied terms are those which the courts introduce under common law or by reference to a statute where express terms are not so included within a contract but are required to give effect to the obvious intentions of the parties to the contract. (more)

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Privity of Contract – Explained

The rule of privity of contract is the principle that a third-party cannot sue for damages on a contract to which he is not a party. This rule has been criticised particularly in cases where the contract is for the benefit of the third-party. At this time there has been no statute introduced and the rule persists in Malaysian Law to prevent a third-party enforcing contractual provisions made in their favour.

The existence of this rule is the reason behind the rise in the use of collateral warranties. Collateral warranties bypass the rule by creating separate independent contracts collateral to the consultancy or construction contract. It allows future owners of developments to sue consultants or contractors for defects in the design or construction under the collateral warranty. There would be no cause of action under the original consultancy or construction contract.

A further fundamental principle is that the assessment of damages for breach of contract is meant to be compensation for damage, loss or injury suffered through the breach. It therefore allows the party to the contract to sue for his loss but does not allow him to sue for the loss caused to a third-party. (more)

Arbitration

Malaysian Construction and Contract Law invites you to read the following articles in respect of Arbitration in Malaysia

Arbitration in Malaysia – Privacy & Confidentiality

Many consider that the main advantage of arbitration over litigation after perhaps the possible cost savings and the ability to have appointed arbitrators which possess a greater knowledge in the field of construction to be that arbitration proceedings offer privacy and are confidential in their process. Privacy means that the proceedings are not open to […]

Enforcement of Foreign Arbitral Awards

The Arbitration Act 2005 has repealed the Arbitration Act 1952 together with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act 1985. However it as demonstrated in the following there were still challenges facing a party seeking to enforce a foreign arbitral award under the Foreign Arbitral Awards Convention Act in Malaysia […]

Procedures & Laws Governing Arbitration in Malaysia

At the moment there are, two Arbitration Acts being used in Malaysia, being the Arbitration Act 1952 which is based on the English Arbitration Act of 1889 together with the 2005 Arbitration Act which is largely based on the Model Law and the New Zealand Arbitration Act of 1969. The 1952 Act applies to arbitrations […]

Was Malaysian Judgment Plagiarised ?

It was reported in the Star Newspaper on Tuesday 21st February 2012 that lawyers V.K. Lingam & Co did on the 13th February 2012 file an application seeking an order to re-hear two appeals by a new panel of Federal Court judges in the case involving KJCF claiming that the judgment contained fifty paragraphs which were plagiarised form an earlier judgment. A full report is available to read at the newspapers link below:

http://thestar.com.my/news/story.asp?file=/2012/2/21/courts/10771810&sec=courts

We have not seen the judgment in question or the earlier judgment on which it has been claimed the judge plagiarised his judgment from, however the story does raise some interesting questions. It may be that the Judge leading the panel did reproduced some of the earlier judgement after finding that he concurred with it, but it appears that by doing so he may have omitted to consider the written submissions submitted in July 2011 according to the news article. In doing so the lawyer is putting forward the argument that ‘the minds of the judges were closed to a fair and impartial consideration of the applicants’ case and demonstrates no reasoning process by the Bench.’

In the event that it is demonstrated that the Judgment is indeed an amended version of the earlier judgment and fails to take account of any new evidence or submissions it is clearly wrong and risks seriously weaken the public’s perception of the Judicial system.

Malaysian Laws and Regulations in Respect of Construction and Related Activities

The MALCONLAW site has a large collection of Laws, Acts and Regulations applicable to the Construction Industry. A selection of these are shown below and are provided as a FREE resource to the site visitors.


Domestic (Malaysian) Judgments on Malaysian Construction and Contract Law

Malaysian Judgments

The following Domestic (Malaysian) Judgments are already included on our site. Please visit where you will get a brief overview of the judgment and its relevance together with being able to read the complete judgment. It’s FREE.

To All Users of Malaysian Construction and Contract Law

We have noted that many visitors to the site hit the home page and then leave we assume this is because they don’t find what they are looking for. May we please request that if you’re looking for a particular subject or article that you use the search function on the main page. this is not an internet search but a simple search of the site. We don’t use false key words or CEO to attract visitors we are a small site and we pride ourselves in only providing information relevant to Construction and Contract Law thus we hope that all visitors will use the search function to find the article/download/news items which they are looking for.

Thank you we are always striving to improve and all comments are welcome.

MALCONLAW