IDEAS home Printed from https://ideas.repec.org/a/src/ropecc/v1y2019i1p43-52.html
   My bibliography  Save this article

The Legal Saga of Exclusion Clauses in Malaysia

Author

Listed:
  • Meng, Tan Pei

Abstract

One of the issues that could affect the success or the sustainability of a business organisation is its ability to manage the legal risk of liability that it faces in running its business. One common tool utilised by businesses is to insert an exclusion or limitation clause in their contracts. This would allow them to predict and apportion the possible amount of liability that could arise from breach of contract or negligence. The courts usually exercise caution in allowing such clauses to be enforced in order to prevent unfairness especially to the weaker party. Malaysia is of no exception. The Malaysian courts have display willingness to strike down the validity of an exclusion clause to ensure that a business organisation does not escape liability arising from its own fault. The Federal Court and the Court of Appeal decision in Bourke v CIMB Bank Bhd (2018) are good examples of such an approach. However, the legal reasoning adopted by the courts in this case has led to numerous confusions on the legal principles of contract law in Malaysia. It is therefore necessary to examine the legal position of exclusion clauses in Malaysia today and to determine what is the most appropriate way forward. This research found that there are difficulties with the legal coherency and application of Bourke in future cases.

Suggested Citation

  • Meng, Tan Pei, 2019. "The Legal Saga of Exclusion Clauses in Malaysia," Review of Politics and Public Policy in Emerging Economies, CSRC Publishing, Center for Sustainability Research and Consultancy Pakistan, vol. 1(1), pages 43-52, June.
    • Handle: RePEc:src:ropecc:v:1:y:2019:i:1:p:43-52
    DOI: http://doi.org/10.26710/rope.v1i1.1130
    as

    Download full text from publisher

    File URL: https://publishing.globalcsrc.org/ojs/index.php/rope/article/view/1130/805
    Download Restriction: no
    File URL: https://libkey.io/http://doi.org/10.26710/rope.v1i1.1130?utm_source=ideas
    LibKey link: if access is restricted and if your library uses this service, LibKey will redirect you to where you can use your library subscription to access this item
    ---><---

    Corrections

    All material on this site has been provided by the respective publishers and authors. You can help correct errors and omissions. When requesting a correction, please mention this item's handle: RePEc:src:ropecc:v:1:y:2019:i:1:p:43-52. See general information about how to correct material in RePEc.

    If you have authored this item and are not yet registered with RePEc, we encourage you to do it here. This allows to link your profile to this item. It also allows you to accept potential citations to this item that we are uncertain about.

    We have no bibliographic references for this item. You can help adding them by using this form .

    If you know of missing items citing this one, you can help us creating those links by adding the relevant references in the same way as above, for each refering item. If you are a registered author of this item, you may also want to check the "citations" tab in your RePEc Author Service profile, as there may be some citations waiting for confirmation.

    For technical questions regarding this item, or to correct its authors, title, abstract, bibliographic or download information, contact: Dr. Syed Shahid Hussain Bukhari (email available below). General contact details of provider: https://edirc.repec.org/data/csrcmpk.html .

    Please note that corrections may take a couple of weeks to filter through the various RePEc services.

    IDEAS is a RePEc service. RePEc uses bibliographic data supplied by the respective publishers.