LAW MOOTING SCRIPT

Yang Arif,

If it pleases the honourable court, I am ________ lead counsel representing Delicious

Yang Arif,

I have two grounds of plea to present in my submission today. My first ground of plea is
communication of acceptance must be absolute and unqualified to show the meetings of mind
between the parties. The second plea is that a contract must be complete for it to be considered
concluding and binding.

I shall require 10 minutes of the court’s time for my submission while my co-counsel shall
require another 10 minutes for the remaining submission.

Yang Arif, do you wish to hear another summation of the facts of the case?

[Yes] The facts of this case relate to an agreement dispute between Pathma Nathan, the
Appellant and the Respondent, Delicious Exquisite Food Sdn Bhd. The agreement concerned
offer and acceptance between parties to extend the past contract of collaboration to do business
and sharing profit revenue.

The appellant had emailed the respondent to inform about his intention to futher the contract
but by 13’th May of 2021, the respondent has yet to give a response to the offer. Hence, the
appellant made a video call with Madam Umami, DEF’s Operation Manager. She then
proposed that the revenue sharing be revised in which the respondent would sell the chutney
for RM50 per container and the Appellant would only get 30% of the revenue sharing. The
appellant gave sideways head nod when asked whether he agree to the proposal though he was
dissatisfied and was stressed with the proposed 30% of revenue sharing.

Exactly a week later, the appellant emailed the respondent informing his disappointment in
the new terms proposed, stressing that he wanted his fair share of revenues. The next day the
respondent replied with an email indicating that they wish to end the arrangement and for the
appellant to stop sending any further chutney. The appellant had brought the matter to the High
Court with the trial judge finding in favour of the respondent.
Yang Arif,

I am now done with summation facts of the case and I shall be looking to maintain the court’s
decision in the previous hearing.

Yang Arif,

Delicious Exquisite Food Sdn Bhd, the respondent respectfully submit the first ground of
contention which is communication of acceptance between parties must be absolute and
unqualified to show the meetings of mind. According to section 7 of the Contracts Act 1950,
in order for a proposal to be able to be converted into a promise, the acceptance by the person
to whom the proposal was made, must be absolute and unqualified. An acceptance is a final
expression of assent to the terms presented by the offeror. But if there are attempts to vary the
terms of the offer in the offeree's reply, then such reply does not amount to a communication
of acceptance but is a counter-offer.

Yang Arif,

The reason why there were no meetings of mind could be concluded between the parties was
the respondent's response to the appellant's offer to continue the contract is a rejection
accompanied by a counter-offer. To delve into the issue of counter-offer, I would like to direct
the court’s attention to the landmark case of Hyde v Wrench. In this leading English case, Lord
Langdale had ruled that any counter-offer cancels the original offer as it fails to amount as a
communication of acceptance. By means of this, there was no ad idem between the parties in
the first place. To help enlighten the court, Yang Arif, it was stated in the case of Ayer Hitam
Dredging Malaysia v YC Chin Enterprises Sdn Bhd, for there to be a concluding and binding
contract, there must be meetings of mind or as usually expressed in law, consensus ad idem.

Yang Arif,

Another reason why there were no meetings of mind is the appellant did not fully agree to the
new payment agreement revised by the respondent as he had informed his dissatisfaction in the
email sent on 20’th May of 2021, saying that he wanted his fair share of the revenues like how
they have operated for the first contract. Initially when asked whether he agree to the new
terms, the appellant had given sideways head nod. However this can’t be accepted as a clear
acceptance as the appellant failed to prove his certainty of cceptance through words and not in
mere manner of sideways head nod. In Storer v Manchester City Council, I would like to quote
from Lord Denning, “In contracts, you do not look into the actual intent in a man’s mind. You
look at what he said and did”. For there to be an effective communication of acceptance, the
offeree’s intention to accept the offer must be certain. Yang Arif, I would like to invite the
court to understand that the appellant as a person to whom the offer is made, must fully assent
to the revised terms to show his acceptance to the counter-offer as proposed by the respondent.
According to Section 2(b) of the Contracts Act 1950, in which it is stated that, “When the
person to whom the proposal is made signifies his assent thereto, the proposal is said to have
been accepted. A proposal when accepted, becomes a promise”. In the present case, the
appellant have not clearly signifies his assent hence there was no acceptance.

Yang Arif,

I would like you to consider the doctrine in Freeman v Cooke in which it was formulated that
if one party intends to make a contract on one set of terms and the other intends to make a
contract on another set of terms or as it is sometimes expressed, if the parties are not ad idem,
then there is no contract. To further support this, Yang Arif, I would like to refer to the case of
Phillip Bell Booth v Navaratnam Narayanan in which, the appellant did not agree to the terms
and conditions set out by the defendant in his letter of proposal. Thus, held by the Court of
Appeal, no contract was concluded because there was no meetings of mind between the parties.
Here therefore, the act of the appellant showing his dissatisfaction with the payment agreement
through the email he sent on 20’th May of 2021, shows that he did not agree to the terms and
was unwilling to execute his obligations according to the contract terms unless the respondent
agree to retreat the contract terms revision of selling the chutney for RM50 per container and
the appellant getting only 30% of the revenue sharing. Taking this into account, Yang Arif, it
can be concluded that, the parties have yet to reach consensus ad idem to form a concluding
and binding contract.

Yang Arif,

I would like to now submit my second ground of contention which is a contract must be
complete for it to be concluding and binding. According to Section 3 of the Contracts Act 1950,
“The communication of acceptance is deemed to be made by any act or omission of the party.
By the performance of an act, the offeree accepts the offer and such performance of the act is
akin to communicating the acceptance”. Referring to the case of Genneva Malaysia Sdn Bhd
v Tio Jit Hong, I quote from the held decision of the Court of Appeal, “Apart from writings,
conduct of parties may amount to acceptance.” In that case, there were no written or oral
agreement between parties but the court concluded the appellant had accepted the offer of the
respondent for gold purchasement when the appellant did not reject or refund the respondent's
purchase sum which was deposited into the appellant's account. Matter of fact, appellant used
the monies and gold given by the respondent for their own benefit. This has shown that
Genneva Malaysia Sdn Bhd was consistent in their acceptance of the offer, therefore the
appellant was estopped from denying that there was a valid and concluding contract.

However Yang Arif, in the present case, the appellant has yet to communicate his acceptance
in a course of transmission which is by delivering the chutney to the respondent’s warehouse
as how it is required in the terms to complete the proposal which it would later will be converted
as a concluding contract. Moreover, since there were no written agreement as well as official
oral agreement between the appellant and the respondent, to communicate acceptance of an
offer effectively is through conduct. Delivering the chutney would have amount to
communication of acceptance to the offer. According to Section 8 of the Contracts Act 1950,
“performance of the conditions of a proposal, or acceptance of any consideration for a
reciprocal promise which offered with a proposal, is an acceptance of the proposal”.
Nevertheless in the present proceeding case, the appellant has yet to execute his obligations
according to the terms of the agreement. Therefore, when neither of promises of a contract is
to be fulfilled, the contract is deemed to be incomplete resulting in there is no contract to be
concluded.

To conclude my ground of plea, Yang Arif, I shall reiterate that the essential elements of
contract is yet to be fulfilled by the appellant which is acceptance. I would like to close my
argument by also submitting that the respondent has locus poentitentiae or opportunity to
withdraw from an incomplete contract.

Unless I can be any further assistance to this court, this ends my submission for the respondent.
I thank the court for its time and indulgence.