Divorce incident

Flipping thru one of my favourite books, Rich dad and poor dad by Robert Kiyosaki, a picture dropped out from the book. An old best friend of mine.

Due to some incident, he got marriage with a girl. Things go smoothly as new hot couple, but things do not go well. About one year later, they wanted to get divorce due to the lifestyle and attitudes incompatible.

Based on the law, new marriage couple cannot declare divorce for the first 2 years but exceptional case is accepted: as in the couple did not stay with together within this 2 years. Finally, both of them, decided to file the case to wait for two years time duration.

Nemo dat quod non habet

Nemo dat quod non habet

Nemo dat quod non habet, from the definition of wikipedia, literally meaning "no one [can] give what he does not have" is a legal rule.
Sometimes, this sentence can be refer as nemo dat rule, that states that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. This rule usually stays valid even if the purchaser does not know that the seller has no right to claim ownership of the object of the transaction (a bona fide purchaser); however it is often difficult for courts to make judgements as in many cases there is more than one innocent party. As a result of this there are numerous exceptions to the general rule which aim to give a degree of protection to bona fide purchasers as well as original owners.

Caveat emptor

This Latin term, mentioned by Mr Sonny Frequently.

Caveat emptor, based on definition of wikipedia, is Latin for "Let the buyer beware".

Generally, caveat emptor is the property law doctrine that controls the sale of real property after the date of closing. Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for ordinary purposes. The only exception was if the seller actively concealed latent defects or otherwise made material misrepresentations amounting to fraud. Before statutory law, the buyer had no warranty of the quality of goods. In many jurisdictions now, the law requires that goods must be of "merchantable quality". However, this implied warranty can be difficult to enforce and may not apply to all products. Hence, buyers are still advised to be cautious.

The case of Salomon vs Salomon Co. Ltd.

This Thursday Mr Sonny told us a few cases about the Doctrine of Corporate Legal Entity and Lifting of Corporate Veil, the stories were too interesting until we forget we were actually attending the class of Business Law.

I would like to speak my thoughts from one of the cases about the Doctrine of Corporate Legal Entity, Salomon v. Salomon Co. Ltd.

The role, old man Salomon was a leather boot and shoe manufacturer. He had a wife, a daughter and five sons while four of the sons worked with him. As time went by, he turned the business into a limited company. The wife and five eldest children became subscribers and two eldest sons also directors. Mr. Salomon took 20,001 of the company’s 20,007 shares.

However, soon after Mr. Salomon incorporated his business, there was financially trouble. A series of strikes in the show industry led the government, Salomon’s main customer, to split its contracts between more firms. He and his wife lent the company lent the company money. He cancelled his debentures. But the company needed more money, and they sought £5000 from Mr. Edmund Broderip. They gave him a debenture, the loan with 10% interest and secured by a floating charge. But the business still failed. and they could not keep up with the interest payments. At the end, the company was put into liquidation. Mr. Broderip was paid but other unsecured creditors were not.

The liquidator met Broderip’s claim with a counter claim, joining Salomon as a defendant, that the debentures were invalid for being issued as a fraud. The liquidator claimed all the money back that was transferred when the company was started: rescission of the agreement for the business transfer itself, cancellation of the debentures and repayment of the balance of the purchase money.

Since Mr. Salomon was the owner of the company, the Liquidator urged Mr. Salomon to pay all the creditors . Salomon did not agree with that as Salomon was supposed to pay for his DEBENTURES. But the Liquidator urged him to pay to other creditors.

However, Trial Judge Vaughan Williams agreed with Liquidator. He urged Salomon to pay on behalf of the company since Salomon was the owner.

Since Salomon refuse to pay, he turn out appealed to COURT OF APPEAL so that he do not have to pay the debts owed to creditors by the company. Court of Appeal finally judge that Salomon just found 6 people (his 5 children & wife) to form the company and they are mere nominees of Mr. Salomon. So Mr. Salomon are subject to pay.

However, Salomon is unsatisfied with the judgement and then appealed to the highest court "HOUSE OF LORDS".

Finally, House of Lords rejected all the judgments made by Trial Judge Vaughan Williams, from the Court of Appeal.

Based on the judgement of House of Lords, there is neither fraud in the manner which Mr. Salomon formed the company, nor Mr. Salomon formed the company for Fraudulent purpose.

So, Mr. Salomon did not have to pay to the company’s Creditors since Mr. Salomon and the Company are two Separate Legal Entity which the company's members is being separated.

Reviews and Discussions:

Question:

What are the advantages and disadvantages of the doctrine of Stare Decisis for the development of law?

Answer:

Advantages:

- It may save the time of judgement towards cases and allow the efficiency of case judgement.

- As a reference for the judgement.

- Prevention of the flaws.

Disadvantages:

- Not all cases are applicable although there are some similarities of the case, it might lead to the wrong judgement.

- The previous biased or wrong judgement may mislead the current wrong judgement. Thus bring its aftermath to the stakeholders.

Chapter: Introduction to law (Malaysian Legal Systerm)

What Do You Think?

Question:

Geena runs an unregistered online investment portal from her home in KL where she managed to get people deposit money to her account.

- It was discovered that the investment was a scam and she attempted to flee with the money, only to be arrested in the airport by immigration officers because she held a fake passport.

- Determine Geena’s liability: civil or criminal?

- What law(s) and statutes you think Geena has violated?

Answer:

In this case, Geena is liable to criminal law as he offences against the state by conduct a fraud to attempt to flee with the money with scam investment. Other than that, he held a fake passport where it is violated under the criminal law.

Chapter: Introduction to law (Malaysian Legal Systerm)

What do you think? (1)

Question:

When driving his car home in Georgetown, Ryan called and talked with his wife through his mobile phone without the use of hands-free device. While talking, he lost control over his car and eventually hit a walking pedestrian.
- Is Ryan liable under civil or criminal law?
- Should this case go to court, what will be Ryan’s right?
-What should the pedestrian do to recover his injuries/loss?

Answer:
In this case, Ryan is liable under criminal law because it is illegal to use the mobile phone to communicate without the use of hands-free device. Hence, he is said to be offences against the state. Since he is charged under criminal law, this case should go to court. Ryan’s has the right to hire his own lawyer to defend him. Meanwhile, in order for pedestrian to recover his injuries or loss, he should propose his loss of income or assets due to the injuries and the occurrence of the accident caused by Ryan. From then, the Court will decide the extent of compensation that Ryan should liable of.