Among the books I just bought this eveningIt is a tiring day, after I spent the time with Afiq and Azrul at book festival. Bought eleven books and all the books are relating to literature stuff. So, tonight fellas, nothing to do with my new books, it is time for revision - just a little bit.
We will continue with Jual Janji.
Jual Janji is a type of collateral agreement with 2 elements;
1. borrower to pay the amount of the loan withing stipulated time
2. lender to return the land upon the full payment withing stipulated time
There are two interpretations of Jual Janji based on the case law;
The first interpretation is a strict interpretation and
the second interpretation is a liberal interpretation
In the case of HJ ABDUL RAHMAN V MAHOMED HASSAN (1917) AC 209, there is a strict interpretation of Jual Janji which is Jual Janji is only a contractual arrangment and decided under the law of contract. If borrower failed to pay the loan in stipulated time, he will lost the right to redeem the land.
The liberal interpretation is that Jual Jani is a security transaction. Mortgage is used as reference to interpret Jual Janji, in order to make Jual Janji is similar as mortgage which is a security transaction applied in UK Law - in the case of YAACOB LEBAI JUSOH V HAMISAH SAAD (1950) 1 MLJ 255, in this case Jual Janji is regarded as equitable security transaction where borrower still can redeem the land even though the payment is made out of stipulated time.
However in 1981 in the case of A. KANAPATHI PILLAY V JOSEPH CHONG (1981)2 MLJ 117, the court didn't follow the decision in YAACOB LEBAI JUSOH, where Salleh Abas stated, inter alia, the case of YAACOB LEBAI JUSOH V HAMISAH SAAD can't be followed because it equate Jual Janji with mortgage and mortgage not part of our law.
(to be continue)
Based on lecture's note on 07 July 2009
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