Case of Marina Juki Vs Zizan Razak (malaysia)

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breach of contract by any one of the parties.

Discharge by breach of contract happen when a promisor fails to perform his obligations, there is a breach of contract. This entitles the other party who are not in breach, to take appropriate action which include repudiation/ rescission of the contract. In Section 40 of the Contract Act 1950 provides that, “When a party to a contract has refused to perform, or disabled himself from performing, his promise.....the promisee may put an end to the contract...”The party not in breach has the option either to continue with the contract or to repudiate it. Illustration to section 40 illustrate the situation: “A, a singer, enters into a contract with B, the manager of the theatre, to sing at his theatre two nights in every week during the next two months, and B engages to pay her RM100 for each night’s performance. On the sixth night A wilfully absents herself from the theatre. B is at liberty to put an end to the contract.” In Smith Construction Co. Ltd v Phit Kirivata (1955), the court held that the refusal to issue an architect’s certificate as agreed under a contract amounted to a breach of contract because it prevented the contractor from proceeding with the construction of the building. Since the time is important in the contract, the party not in default has a choice either repudiating the contract or treating it as subsisting.

When there is breach of contract, the party not in default may claim one or more the following remedies: 1) Section 40 of Contract Act 1950: Rescission of contract, 2) Section 70 of Contract Act 1950: Damages, 3) Section 11 of Contract Act 1950: Specific Performance, 4) Section 51 of Contract Act 1957: Injunction, 5) In Planche v Colburn: Quantum Meruit.

Applying to the principles above to Marina Juki’s case, i believe that all the elements under contract are fulfilled. In this case, the plaintiff had offered the 4 years contract to the defendant to appoint the plaintiff to be his personal assistant and plaintiff agreed by signing the contract on May, 2011. By accepted the contract that stated that the plaintiff will earn 15 per cent commission on all income earned by the defendant, the element of consideration is fulfilled. By signing the contract by both parties, the element of the intention to create legal relations is contented. Contract is the thing that has the certain points inside, thus it clarifies the element of certainty. Both of parties achieve the capacity to enter the contract at that time.

As a conclusion, it is agreeable that there is a valid contract between them and when there is breach of contract, the party not in default may claims any remedies stated in the Contract Act 1950, Specific Relief Act 1950 and according to the previous case held by court.

Decision held:

Judicial Commissioner Datuk Roslan Abu Bakar (Session Court) allowed her appeal. The court agreed that Zizan had engaged Marina as a personal assistant under the four-year contract and that she was entitled to 15 per cent commission on all income earned by the actor throughout the period. Court also ordered Zizan to pay RM10, 000 in cost to Marina. In the claim, Marina sought special damages of RM535, 500, general damages of 15 per cent on all income earned by Zizan from Astro, and interest of 5 per cent per annum from the date the suit was filed.

Comment:

The defendant, Mohd Razizan bin Ab Razak (Zizan Raja Lawak) fails to perform or provide immaterial provision of the contract. Meaning that, he cannot perform his obligations under the contract in such a way that the value of the contract is destroyed, exposes that party to liability for breach of contract damages. While, the plaintiff, Marina Juki is stick with their agreements that she will be the personal assistant to the defendant for 4 year. Therefore, the court’s decision is correct that is allows the plaintiff to sue, though only for damages that she think is needed. The court’s decision made was accordance to the Section 76 that is provides, “a person who rightly rescinds a contract is entitled compensation for any damages which he has sustained through the non-fulfillment of the contract.” Marina Juki had the rights to win this case because of the defendant’s failure to complete the contract for the 4 year.