The document discusses the application of English commercial law in Malaysia under Section 5 of the Civil Law Act 1956. It provides: 1) Section 5 allows for the reception of English commercial law in Malaysia, with the cut-off date depending on the state - either the date of enactment for some states or continuous reception for others. 2) The term "mercantile law generally" has been broadly interpreted by courts to include any English law connected to commercial transactions. 3) However, Section 5 does not allow for the reception of English land law in Malaysia.

2.  Historical background:
 2nd RCJ
 Regina vWillans:Whatever law enforced in
England in 1826 becomes part of the law of
the Straits Settlements.
 The cut-off date is 1826.

3.  Civil Law Ordinance 1878 was introduced into
the Straits Settlements.
 Section 6 provided for the continuous
reception of English commercial law.
 “the law to be administered shall be the same
as would be administered in England in the
like case at the corresponding period…”
 CLO 1878 overruled Regina vWillans.
 --origin of S 5 CLA

5.  (1) In all questions or issues which arise or which have
to be decided in the States of Peninsular Malaysia
other than Malacca and Penang with respect to the
law of partnerships, corporations, banks and banking,
principals and agents, carriers by air, land and sea,
marine insurance, average, life and fire insurance, and
with respect to mercantile law generally, the law to
be administered shall be the same as would be
administered in England in the like case at the date of
the coming into force of this Act, if such question or
issue had arisen or had to be decided in England,
unless in any case other provision is or shall be
made by any written law.

6.  (2) In all questions or issues which arise or which
have to be decided in the States of Malacca,
Penang, Sabah and Sarawak with respect to
the law concerning any of the matters referred
to in subsection (1), the law to be administered
shall be the same as would be administered in
England in the like case at the corresponding
period, if such question or issue had arisen or
had to be decided in England, unless in any case
other provision is or shall be made by any
written law.

7.  Subsection (1): All states of Peninsular Malaysia
except Malacca and Penang
 To apply English commercial law at the date of
the coming into force of this Act (i.e. 7 April 1956
is the cut-off date)
 Subsection (2): Malacca, Penang, Sabah and
Sarawak
 To apply English commercial law at the
corresponding period.
 There is no cut-off date. Reception is
continuous.

8.  “the law to be administered shall be the same
as would be administered in England in the
like case”
 Allows a wider reception of English law.
 Allows even the reception of statutes or
written law intoWest Malaysia.
 (Note that under S 3, only common law and
equity apply inWest Malaysia.)

9.  “unless in any case other provision is or shall
be made by any written law”
 Reception of English commercial law is
subject to local statutes.

11.  “The law on buying and selling merchandise”
PerWood J
in Vulcan Match Co. v HermJebsen

12.  “A whole body of law…which are of particular
importance to persons engaged in trade and
commerce”
 Selling sugar. Done in Singapore.
 Delivery from Java to Bombay.
 Resp did not pay so appl brought an action
for breach of contract to recover the money.
 Resp counterclaimed for damages for late
delivery of goods.

13.  Appl reason for late delivery:
 Requisition of ships by British government.
 This was empowered by two British Acts:
 Defence of the Realm (Amendment) Act 1915
 Courts (Emergency Powers) Act 1917

14. Whether the two statutes
(i.e. the Defence of the Realm (Amendment)
Act 1915 and the Courts (Emergency Powers)
Act 1917)
are part of merchantile law generally.

15.  Court of Appeal:
 No, the statutes are not part of merchantile
law.
 Therefore, the appl’s defence was struck off
and the appl was liable for the late delivery.

16.  Privy Council allowed the appeal.
 The question here is a question of sale.
 The law of sale is part of merchantile law.
 If the situation was in England, then the two
statutes could be pleaded.

17.  Lord Dunedin:
 “it is not the ‘merchantile law’ but ‘the law’
which is to be the same as the law which would
be administered in England in the like case.
 The first thing to be settled is: ‘Has a question or
issue arisen in the Colony with respect to – here
follow the enumerated departments of law and
then come the general words and with respect
to merchantile law generally’? Now the question
here to be decided in the Colony is a question as
to the law of sale. No one can doubt that the law
of sale is part of merchantile law.”

18.  “if the same question as to sale had to be
decided at the same time in England, it is
clear beyond all doubt that the above cited
statites of 1915 and 1917 could be pleaded…”

19.  Any Act that has a connection with
merchantile law will be covered by the term
“with respect to mercantile law generally”.
 Therefore, theAct will have its application
under section 5 of CLA.

20.  An

21.  Issue:
 Whether the Moneylender’sAct applied in
Singapore as “merchantile law generally”.
 Privy Council:Yes.
 But disapproved the decision in Nagurdas.
 The approach to determine whether the
English legislation was merchantile law wasto
look at the nature of the legislation.

22.  However, the Court did not enforce the
Moneylender’sAct in Singapore because it
was unsuitable and ‘impossible of
performance in the East’.
 (Note: S5 does not have a proviso of the same
effect as S3. however, the Privy Council in this
case implied such a proviso in S5).

25.  Sale and purchase of a car.The car was
subsequently forfeited by customs.
 Issue: whether Malaysian SOGA 1957 applies in
SS?
 Court:
 “.......The Malaysian Sale of Goods Act 1957 is not
applicable to Sabah and Sarawak. By reason of
Section 5(2) of the Civil Law Act 1956, reference
has to be made to … the United Kingdom Sale of
Goods Act 1979, being the law applicable to
 Sabah and Sarawak…”

26.  (Sarawak)
 Sale and purchase of a car in 1983.
 The issue was which of the three statutes apply?
 UK SOGA 1979
 UK SOGA 1893
 Malaysian SOGA 1957
 Court: Since the transaction took place in 1983, by
virtue of s 5(2) of the Civil Law Act 1956, the law
applicable in Sarawak for the purpose of this case was
the UK Sale of Goods Act 1979 and not s 12 of the UK
Sale of Goods Act 1893 or s 14 of the Sale of Goods Act
1957 (West Malaysia).

27.  (Penang)
 A contract was entered into between 18/5/73
t0 6/12/79.
 Court: the applicable statute was UK SOGA
1979.

29.  “Nothing in this part shall be taken to
introduce in Malaysia or any of the States
comprised therein any part of the law of
England relating to the tenure or conveyance
or assurance of or succession to any
immovable property or any estate, right or
interest therein.”

30.  Chin Choy v Collector of Stamp Duties [1981] 4
MLJ 47
 UMBC v Pemungut HasilTanah KotaTinggi
[1984] 2 MLJ 87
 In both cases, the courts held that there was
no room for importation of English land law.