If it restricts hi livelihood as in this case then s28 applies and the contract

If it restricts hi livelihood as in this case then

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whether the clause restricts the defendant’s livelihood. If it restricts his livelihood, as in this case, then s.28 applies and the contract is void and the plaintiff cannot enforce. 10. Another issue is whether a contract is void if it contains 100 clauses and one is illegal. In Carney v Herbert [1985] , the PC held that it
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depends on the construction as a whole. If the illegal clause is merely subsidiary to the main purpose of the contract, then it may be severed leaving the whole contract valid. 11. In Maxim Nordenfelt Guns & Ammunition v Nordenfelt (HOL) , the clause was severed and part of the clause was valid and enforceable and the other part void and unenforceable. (C) Mistakes: s.21 -23 Mistake made by both of the parties s.21 1. At common law, mistake has been divided into 3 categories: common, mutual and unilateral mistake. 2. In Malaysia law, s.21 provides that when both the parties to an agreement are under a mistake as to a matter of fact essential to an agreement, the agreement is void. A void agreement is not enforceable by law. 3. This was emphasised by the PC in Sheikh Brothers Ltd v Ochsner (PC Eastern Africa ) [1957] that the mistake as to a matter of fact must be essential to the agreement, beyond a quality issue. In this case, it was believed by both of the parties that some land could provide a desired yield, which it couldn’t. 4. Besides, the explanation to s.21 provides that an erroneous opinion as to the value of a thing which forms the subject matter of the agreement is not deemed a mistake as to a matter of fact. ( It means that the price
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of a thing can never be a subject matter in an agreement as it is very subjective. ) 5. A mistake of fact made by both parties to the agreement be: (a) a mistake as to the existence of the subject matter of the contract - common mistake Applies where unknown to both parties, the subject matter of the contract had ceased to exist or has never been in existence at all at the time of the contract. The existence of the subject matter of the contract would be a matter of fact essential to the agreement. (b) A mistake as to the identity of the subject matter - mutual mistake Arises where one party intends to deal with one thing and the other with a different thing and are at cross purposes. (c) A mistake as to the quality of the subject matter. Where there is a contractual description - if quality not met can go for breach of a term of the contract. Where the subject matter of the contract lacks some quality which it is believed to have, the first question is whether the quality forms part of the contractual description of the thing. I fit does and the article does not answer the description of that which is sold, the contract is valid and the party who gave the description is in breach of a term of the contract, Where there is no contractual description, mistake as to the quality of the subject matter generally does not nullify consent under English law. The position under the Act may be the same. The explanation to s.21 provides that “an erroneous opinion as to the value of a thing which forms the subject matter of the agreement is not deemed a mistake as to
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a matter of fact.” Thus, the contract is valid. ( For example, A bought a
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  • Winter '17
  • Daniel

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