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Australian Journal of Asian Law

Abstract from Volume 7 No 1 (2005)

Restitutionary Developments under Part VI, Malaysian Contracts Act 1950

Cheong May Fong is an Associate Professor at the Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia.

This article aims to show that the concepts of restitution and unjust enrichment exist in Malaysian legal jurisprudence via Part VI of the Malaysian Contracts Act 1950 and, in particular, s 71 which provides for the obligations of a person enjoying the benefit of a nongratuitous act. It will be shown that s 71 bears strong similarity to the principle of unjust enrichment. This article considers whether the courts have aided, or hindered, the development of doctrines of restitution and unjust enrichment. Through the cases surveyed, it is found that the judges of the High Court have shown enthusiasm in applying unjust enrichment to s 71, but the same cannot be said of the highest court in Malaysia. The article concludes by illustrating missed opportunities to develop the law of restitution in Malaysia through a critique of two cases, the first decided by the Supreme Court in 1994, and the second by the Federal Court in 1998.

(2005) 7(1) Asian Law 24
   
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