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3 reasons to sue your seller for late delivery in Malaysia

2020-01-14 Default avatar Christina Wong

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This article is for general informational purposes only and is not meant to be used or construed as legal advice in any manner whatsoever.

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Most of us have our fair share of experiences with late deliveries. It is annoying to get your stuff late, or even worse, getting cheated. We’ve written an article on what you could do if your online purchases turn out to be...disappointing.

[READ MORE: Got cheated shopping online in Malaysia? Here are 4 ways to get justice (or a refund)]

However, the solutions in that previous article was for smaller losses with smaller frustrations. The frustration is tenfold when you buy a RM100,000 Samsung TV or where you make a bulk purchase on behalf of your company. You have the right to be angry, because Netflix looks better on a big-screen TV and in terms of bulk purchases, company profits are at stake. You’d probably prefer to cancel and get refunded as soon as possible to buy your stuff elsewhere, instead of waiting for a delivery that may or may not arrive.

But having your item arrive late isn’t enough to get you a refund. To do that, you’d need to show that it was very important to get your purchases on time. In order to show that time is important, you need to come within one of the three situations below.

 

3 reasons why punctual delivery is important

GIF from giphy.com

The 3 reasons were given in the case of Tan Ah Kian v Haji Hasnan where the judge said,

“...Firstly, time is of the essence of the contract where the parties expressly stipulate in the contract that it shall be so…

Secondly time is of the essence of the contract where it was not originally stated to be so but has been made so by one party by giving reasonable notice to the other, who has failed to perform the contract, with sufficient promptitude…
Thirdly, time is the essence of the contract where from the nature of the contract or of its subject matter time must be taken to be of the essence of the agreement...”

Confused? Yeah, so were we. In human terms, the judge basically said that time is important when:

  1. the seller and buyer agreed in the contract that time is important; or
  2. when it is not agreed in the contract, but the buyer later notifies the seller that time is important and sets a second deadline; or
  3. the item you ordered can easily rot, like fruits.

But even if you know that you can do this, cancelling your order shouldn’t be your first option. It is probably better to talk to the seller first before resorting to any extreme measures.

But going down this route can be expensive in terms of legal fees, so the value of your purchase should also be considered. If a shirt costed you RM20, forking out hundreds or thousands of ringgit for legal fees for late delivery isn’t exactly ideal. But on the flip side, if you ordered a RM10,000 refrigerator, then it would be rational to sue and get refunded.

In order to give a better understanding of these 3 situations, let’s look at each reason given by the judge in detail.

 

1. If the buyer and seller agreed in the contract that time is important

GIF from giphy.com

This is the easiest reason to use to get a refund. If the contract with the seller has a clause like this: Time shall be of the essence of this Agreement, then you can cancel your order and get your refund for late delivery. It is very straightforward. If it’s there, then you can use this reason to get refunded; if it’s not there, then you’ll have to try using one of the other methods below.

For example, if you ordered 3000 cheongsams for a CNY sale (just imagine you’re a very big company), then the contract would most likely contain a clause which says “Time shall be of the essence of this Agreement”  because if you get it at anytime after CNY, it defeats your purpose of buying them in the first place. Due to this very reason, you are entitled to cancel your order if the delivery is late. If there is no such clause, then you can’t use this reason.

 

2. If delivery is delayed TWICE, you get a refund.

GIF from giphy.com

For this reason, there must first be an unreasonable delay (delay without good reason) and you have notified the seller by writing to them to set a new delivery deadline. If it doesn’t arrive by the second deadline, you can cancel your order and demand a refund.

This is because in the case of Mensa Mercantile v Eikobina (M) Bhd said,

“...time can only be made the essence of a contract by one party giving notice to the other subject to two requirements:
(a) that the other party has been guilty of unreasonable delay; and
(b) the time mentioned in the notice must be reasonable...”

Let’s say you ordered 1,000,000 lanterns for a CNY sale (imagine you are a very, VERY big company) and it was scheduled to arrive on 31st December but it did not arrive at that time. You give your seller a second deadline so that the lanterns reach you by 10th January (because you need to sell them before CNY). And if the delivery is late again, you CAN cancel your order and get back your money.

But note that you must be quick to set the second deadline. In the case of Sharikat Eastern Plastics Industry v Sharikat Lam Seng Tradingthe buyer (a company) took its own sweet time to notify the seller about the second deadline, causing the buyer to not be able to get a refund. But, the buyer in the case of Siah Kwee Mow v Kulim Rubber Plantation set a second deadline shortly after the delay and the buyer managed to get refunded.

So if you don’t get those 1,000,000 lanterns, be quick in notifying the seller if you want to be refunded.

 

3. When it’s food or fruits, time is automatically important

GIF from Pinterest

If you purchase things that can rot like fruits or vegetables, then it is understood that your purchase is time-sensitive and must arrive on time because let’s face it – no one is going to buy rotten fruits or stale food.

As how the judge in the case of Tan Ah Kian (the case from the introduction paragraph above) put it,

“...time is the essence of the contract where from the nature of the contract or of its subject matter time must be taken to be of the essence of the agreement...”

The very nature of food, like the CNY mandarin oranges, is that it can rot if delivery is not punctual. So a wholesaler who buys 2000 crates of CNY oranges must get them on time and can cancel the order if delivery is late.

The tapao note: It’s Malaysians nature to be patient and forgiving but we shouldn’t give too much leeway in life, especially when it comes to stuff we paid for. Again, as mentioned earlier, it’s probably best to talk to your seller first before suing them, as this can save you the hassle and fees of going through a lawsuit. Only if that fails, then you should take extreme measures.

Tags:
contracts act 1950
late delivery
time
tan ah kian
parcel
package
consignment
fruits
deadline
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About the Author Christina Wong

The red-headed intern juggling between this internship and CLP.

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