Tommy.

Jessy bought a new motorcycle from Tommy the salesman from AB Motor Sdn Bhd on
15th May 2017 for her brother, James. The issue here is whether the communication of
acceptance is completed because in order an acceptance to be effective it must be
communicated. In Section 3 of the Contracts Act provides for the communication of offer
and acceptance as follows: The communication of proposals, the acceptance of
proposals, and the revocation of proposals and acceptance, respectively, are deemed to be
made by any act or omission of the party proposing, accepting, or revoking, by which he
intends to communicate the proposals, acceptance, or revocation, or which has the effect
of communicating it. Furthermore, in section 4(1) of the Contract Act 1950, the
communication of proposal is completed when it comes to the knowledge of the person to
whom it is made. The acceptance by the promisee needs to be communicated to the
promisor. In Section 4(2) of the Contract Act provides that the communication of an
acceptance is complete:- (a) as against the proposer, when it is put in a course of
transmission to him, so as to be out of the power of the acceptance; and (b) as against the
acceptor, when it comes to the knowledge of the proposer. In this case, the
communication of acceptance between Jessy and Tommy is completed because Jessy
agreed to buy the motorcycle from Tommy and Tommy had assured Jessy that the
motorcycle will be deliver to her house on 18 th May 2017. This case can be relate to the
case of Entorres v Miles Far East [1955], The claimant sent a telex message from
England offering to purchase 100 tons of Cathodes from the defendants in Holland. The
defendant sent back a telex from Holland to the London office accepting that offer. The
question for the court was at what point the contract came into existence. If the
acceptance was effective from the time the telex was sent the contract was made in
Holland and Dutch law would apply. If the acceptance took place when the telex was
received in London then the contract would be governed by English law. It was held that
To amount to an effective acceptance the acceptance needed to be communicated to the
offeree. Therefore the contract was made in England.
The second issue is whether there is a breach of a condition. A condition is a basic term
of the contract which goes to the origin of the contract. A failure to perform a condition
may result in the termination of the contract. In this case, Tommy had assured Jessy of
the excellent quality of the motorcycle to be deliver to her house but the motorcycle that
she received came with different colour from what she ordered and she also was informed
by James that the motorcycle failed to function. Jessy asked Tommy to replace it with a
new motorcycle or refund her money back but Tommy refused because once James
received the goods by signing the receipt, his company would not be responsible to any
of her loss. In section 16 (3) of Sales of Goods Act 1923 stated that where a contract of
sale is not severable and the buyer has accepted the goods or part thereof, the breach of
any condition to be fulfilled by the seller can only be treated as a breach of warranty and
not as a ground for rejecting the goods and treating the contract as repudiated, unless
there be a term of the contract express or implied to that effect. Therefore, the condition
is to be treated as warranty and Tommy is not reliable for breach of condition. Poussard v
Spiers and Pond [1876] is an example of a case were a breach of a condition took place.
In this case an actress was hired to sing in the opera, but she got ill and could not perform
until a couple of weeks after the premiere. It was held at the court that this breach went to
the root of the contract, and therefore the opera could repudiate the contract and hire a
new actress.