to say that i'm honest is a hypocrisy

Guess some lawyers have to give up on honesty in order to earn the big bucks eh? Here is an article in the New York Times about a hotshot Indonesian lawyer who indirectly admits that he has not been all that honest in committing to his profession.


Click here to read more.

by hook or by crook, they ain't gonna get more outta me!

The words income, salary, pay, wage, fee, or any forms of remuneration are probably the sweetest words to hear besides the usual terms of endearments. Anything that involves money will bring a even a dead man to life, metaphorically. And whoever says money can't buy happiness must have been shopping at the wrong place. Back to income, the more the better, right? However, what we take we have to give back, partially. Hence the birth of income tax.

The Income Tax Act 1967 states that if you earn more than 32,000MYR per annum, you're required to pay tax. And as your income increases, so does the tax requirement. It is a real pain to see a scrap of your hard-earned cash leave, no? So some people find ways to avoid tax.

One way of doing it is by expensing the assets. For example, if you purchased a car this year, you can state that it is a company car and not for private usage. That shaves off a huge part of the yearly income already. Another way is to defer income. Some payments are usually due the year after for services performed in the current year. Since you have not received the payment, defer it! With the creation of personal relief, you can expense off a number of things, namely
a) Medical expenses for parents
b) Medical expenses for severe disease such as AIDS, cancer and so on.
c) Medical examination but limited to RM500.
d) Disabled individual, wife/husband, children
e) Wife
f) Purchase of equipment for disabled people
g) Education fees in the field of industrial, scientific, technology, technical, accounting, law and Islamic finance.
h) Purchase of books, journals, magazines and publications
i) Purchase of personal computer
j) EPF and life insurance premium
k) Education and medical insurance
l) EPF annuity insurance

So there you have it. A few ways of avoiding tax legally. Evading tax however, is illegal. Al Capone, the crime king of Chicago in the 1930s got away with murder but was chucked in prison for not paying his taxes. Guess you can escape the hands of death but not the hands of the IRB.

inland revenue board

The Inland Revenue Board of Malaysia or Lembaga Hasil Dalam Negeri is one of the main
revenue collecting agencies of the Ministry of Finance. It was converted into a Board on March 1, 1996, and is now formally known as the Inland Revenue Board of Malaysia (IRB).
IRB was established in accordance with the Inland Revenue Board of Malaysia Act
1995 to give it more autonomy especially in financial and personnel management;
to improve the quality and effectiveness of tax administration.

Key functions of IRB are as follows:
• To act as an agent of the Government and provider of services in administering,
assessing, collecting and enforcing payment of income tax, petroleum income
tax, real property gains tax, estate duty, stamp duties and such other taxes as
may be agreed between the Government and the Board
• To advise the Government on matters relating to taxation and to liaise with the
appropriate Ministries and statutory bodies on such matters
• To act as a collection agent for and on behalf of any body for the recovery of
loans due for repayment to that body under any written law

honesty is the best policy

Growing up, I've always been taught that honesty pays and lying is a sin. Once in a while telling a white lie has always paid off than being honest, for example telling my mom that I did not steal the cookie from cookie jar when I indeed took more than 3 on one occasion to spare myself from the rod. While minuscule lies like these are acceptable and does not do anyone harm along the way, lying on a big scale is sure to jeopardise or hurt someone. Hence the birth of 'doctrine of utmost good faith'. This doctrine is important in insurance contracts, in fact it is important and should be applicable to all contracts. As for insurance, it is governed that all parties to an insurance contract must deal in good faith, making a full declaration of all material facts in the insurance proposal.

The insured is compelled to reveal the exact nature and potential of the risks that he transfers to the insurer, which in my opinion, is fair in return for the compensation that he would receive in the event of something undesirable. The insurer also has to make sure that the potential contract fits the needs of, and benefits the assured. In the case of Carter v Boehm (1766), Lord Mandfield stated this

Insurance is a contract of speculation... The special facts, upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only: the under-writer trusts to his representation, and proceeds upon confidence that he does not keep back any circumstances in his knowledge, to mislead the under-writer into a belief that the circumstance does not exist... Good faith forbids either party by concealing what he privately knows, to draw the other into a bargain from his ignorance of that fact, and his believing the contrary.

nemo dat quod non habet

Nemo dat quod non habet is a latin phrase for 'no one can give what he does not have'. Legally speaking, this term means that the purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. This rule is deemed to protect the rights of ownership. If no rule was to be created, the interest of the true owner of the stolen goods would be jeopardized.

There are however, a few exceptions to these rule:
1. The operation of estoppel (s. 27)
Subject to this Act and of any other law for the time being in force, where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell.

2. Sale by mercantile agent (s.27)
Provided that where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title to the goods, any sale made by him when acting in the ordinary course of business of a mercantile agent shall be as valid as if he were expressly authorized by the owner of the goods to make the same; provided that the buyer acts in good faith and has not at the time of the contract of sale notice that the seller has no authority to sell.

3. Sale by one of joint owners (s.28)
If one of several joint owners of goods has the sole possession of them by permission of the co-owners, the property in the goods is transferred to any person who buys them of such joint owner in good faith and has not at the time of the contract of sale notice that the seller has no authority to sell.

4. Sale under a voidable title (s. 29)
Where the seller of goods has obtained possession thereof under a contract voidable under section 19 or 20 of the Contracts Act 1950, but the contract has not been rescinded at the time of the sale, the buyer acquires a good title to the goods provided he buys them in good faith and without notice of the seller’s defect
of title.

5. Sale by a seller in possession after sale (s. 30(1))
Where a person, having sold goods, continues or is in possession of the goods or of the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him, of the goods or documents of title under any sale,pledge or other disposition thereof to any person receiving the same in good faith and without notice of the previous sale shall have the same effect as if the person making the delivery or transfer were expressly authorized by the owner of the goods to make the same.

6. Sale by a buyer in possession (s. 30(2))
Where a person, having bought or agreed to buy goods, obtains, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person or by a mercantile agent acting for him of the goods or documents of title under any sale, pledge, or other disposition thereof to any person receiving the same in good faith and without notice of any lien or other right of the original seller in respect of the goods shall have effect as if such lien or right did not exist.

source: Sales of Goods Act 1957

caveat venditor - why a retailer sells goods at his own peril

Many small business owners that I've encountered are surprised to learn that under New York law, anyone in a product's chain of distribution can be held liable for injury that results from the foreseeable use of the product. This law includes a retailer, who may have just put that product on his shelf without ever opening the box, and a distributor, who merely transported the product from one destination to the other. Under this scenario, neither the retailer nor the distributor was actively at fault for the product's defect or the plaintiff's accident - and they can still be held liable. Does that sound scary from the retailer or distributor's perspective? It sure is.

The Plaintiff's Burden of Proof in a Products Liability Action

In very basic terms, in order to prevail in a products liability action, a plaintiff needs to prove two things: first, that the product is defective, i.e., the product is so likely to be harmful to persons or property that a reasonable person who had actual knowledge of its potential for producing injury would conclude that it should not have been marketed in that condition, and, second, that the defect was a substantial factor in causing plaintiff's injuries.

The plaintiff can meet this burden of proof by demonstrating one of the following: (1) this specific product was defectively manufactured; (2) the product was defectively designed; or, (3) the safety warnings accompanying the product were inadequate.
At first blush, this law seems particularly tough on middlemen like the retailer and distributor, which presumably have little to no input in either the manufacture or design of the product, or the warnings that are placed on the product. However, it bears mention that these entities reap the financial rewards from selling the product. Consequently, the courts have opined that in the interests of assuring that a plaintiff with a legitimate defective products claim has a viable and readily available party from whom he or she can be compensated (as opposed to a foreign manufacturer with no connection to the plaintiff or place of occurrence), it is fair to hold the middlemen liable for the product's failures.

This law does not leave retailers or distributors without recourse; to the contrary, they are still entitled to seek indemnity and/or contribution from the responsible party (generally, the manufacturer). On the other hand, clearing the technical and procedural hurdles necessary to get indemnity from the manufacturer is often far from simple, particularly where the manufacturer is foreign.
Assumption #1: The manufacturer has the requisite minimum contacts with the forum of the claim. In order to obtain personal jurisdiction over the foreign manufacturer, you must demonstrate that the manufacturer either transacts business or has some other tangible nexus with the forum state (see, e.g., New York Civil Practice Law and Rules 302).
Assumption #2: The manufacturer's host country is a signatory to the Hague Convention's Service of Process Rules. If Assumption #1 can be satisfied (which is uncertain at best), you will still need to assure that your legal papers are personally served on the manufacturer. This in turn requires that the manufacturer is not only readily located, but can be served under the Hague Convention's rules.
Assumption #3: The manufacturer is a viable entity with collectible assets. It goes without saying that a paper judgment against a defunct corporation is utterly worthless.

So how can a domestic retailer or distributor protect itself against products liability claims? Here are a few suggestions:

3 Easy Steps to Protect Your Retail Business Against Defective Products Claims

Step #1: Make sure that those entities above you in the chain of distribution carry adequate products liability insurance from a domestic, well-reputed and established insurer that specifically names your company as an additional insured on the policy. Do not rely on the manufacturer's claim that you are named on the policy; get confirmation directly from the insurer (I have seen instances where the declaration sheet provided by the other party to the agreement was a complete fabrication).

Step #2: Make sure that you have an agreement that indemnifies you against any claim of a product defect that is not of your own doing. Stated otherwise, if you are a retailer or distributor, you should be indemnified against any claims of manufacturing or design defect and/or inadequate warnings.

Step #3: Try to assure that those companies directly above you in the chain of distribution have a domestic presence, such as an office or agent for service of process.

While following these rules may cost some time and money in the short run, these safeguards are indispensable, for they may ultimately save your company from needless exposure to financial ruin.


Copyright (c) 2008 Law Offices of Jonathan Cooper
By:
Jonathan Cooper

of tattoos and caveat emptor

'Caveat emptor' is a Latin phrase which simply translates to 'let the buyer beware'. It is a precaution that the buyers should know the condition and quality of the purchase before buying. The seller is not responsible for informing the defects or imperfections of the item or service to be sold. Honesty and frankness are usually non-existent in sellers, unless he's a man who does not prioritise profits as his ultimatum in opening a business. I recently came across an article about a girl who got a tattoo which was mispelt. She saw the preview of the word and the stencil on her arm which was the word 'beatiful'. It was spelled incorrectly but she was not aware of it until someone pointed it out. Guess this is what happens when the literary rate in the U.S. is low. Back to the story. She then wanted to sue the artist for tattooing the mispelt word on her arm. The adjudicator ruled that "...the Claimant is the author of her own misfortune. The Claimant saw the phrase on the computer, on the stencil and then on her arm before being tattooed and she approved of the tattoo”. Hence, caveat emptor applies even when getting a tattoo. If you are illiterate, get a picture instead.