Publication Type

Journal Article

Version

publishedVersion

Publication Date

7-2014

Abstract

This article makes two main suggestions regarding the interpretation of s 73 of Malaysia's Contracts Act 1950, which sets out the right to recover a mistaken enrichment. The first suggestion is that the courts should have regard to the historical background against which the section was enacted, especially because the pre-enactment common law was a historical curiosity. This will dispel certain misconceptions about the nature of the statutory right by shedding light on its supposed affinity with contract and its relationship with the obsolete forms of action and the principle of unjust enrichment. The second suggestion is that the content of s 73 needs to be developed so as to enable it to better address complex cases. In undertaking the task of formulating the detailed rules and principles for the section, the courts should draw on the experience of other major common law jurisdictions. It shall be shown that the common law method of analysing issues of unjust enrichment could be usefully incorporated into the section's framework.

Discipline

Asian Studies | Commercial Law | Contracts

Publication

Journal of Contract Law

Volume

31

Issue

3

First Page

206

Last Page

233

ISSN

1030-7230

Publisher

Butterworths

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