RESPONDENT’S GROUNDS: 3rd Arguments: It is submitted that the payment of lesser sum, RM 24 000 with a bottle of wine doesnot constitute a sufficient and adequate consideration. The above ground is supported as follows: LAW According to Section 26 of Contract Act 1950, the agreement made without consideration is void unless it comes under one of its exceptions. It means that any contract without consideration is invalid and unenforceable , therefore it is not binding to both parties. Consideration has been defined in Section 2(d) of Contract Act 1950: When at the desire of the promisor, the promise or any other person has done or abstained from doing, or does or obtains from doing or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration from the promise. In simple way, consideration can be said as an act or abstinence or promise by the promisee or any other person, as required by the promisor in return for his promise. The consideration must be something which has value in the eyes of law. It means that to have the value in the eyes of law, the consideration may not be adequate but it must be sufficient. Under Malaysian law, this rule of consideration need not be adequate but must be sufficient is explained in explanation 2 of the Section 26 of Contract Act 1950, the agreement is not void merely because the consideration is inadequate. This situation is illustrated in illustration (f) of Section 26 of Contract Act 1950 and this rule also had been used in the case of Phang Swee kim v Beh I Hock (1964) MLJ 383. The case above is about the sale of a land for $500 when it was worth more than that. Seller refused to honour promise citing that the price was inadequate for a consideration. The trail court judge held that the agreement was void due to inadequacy of consideration. However upon appeal to the Federal Court, the decision of the Trail judge was reversed. Pinnel has sued Cole in debt for £8 10s due on a bond on 11th November 1600. The Supreme Court of India on 5 April 2006 ruled in a rent case that mere acceptance of the rent by the landlord after serving notices of eviction on the tenant does not amount to waiver because his filing the suit for eviction after receiving the rent made his intention clear. There are several circumstances under Malaysian law that constitute sufficient consideration which includes payment of lesser sum in discharge of a larger sum. This is because. English Common Law Doctrine of 'Accord and Satisfaction' Section 64 of Contract Act 1950 represents a departure from the Common Law in England. the inadequacy of the consideration maybe taken into account by the court in determining the question whether the consent of the promisor is freely given or not as illustrated in the illustration (g) of the Contract Act 1950. This means that a lesser amount cannot be a satisfaction to the plaintiff for a greater sum because it is normally insufficient to affect a discharge at law or even in equity. which leads the other party reasonably to believe that the strict legal rights will not be insisted upon. B can still sue A to pay the balance of the full amount. Denning LJ in the case above laid down the requirements of waiver as follows: In order to constitute a waiver there must be conduct. p 626. The whole essence . In English rule of 'accord and satisfaction' a creditor might accept anything in satisfaction of his debt except a lesser amount of money. even if the rent was neither tendered nor accepted the landlord in the event of his success would be entitled to the arrears of rent. as provided in Section 64 of Contract Act 1950. For example. at Pinnel’s request. the General Rule in English Law as established in the Pinnel’s case in 1602. In the case of Charles Rickards v Oppenheim [1950] 1 KB 616. Therefore. Brian CJ in delivering the judgement considered that the payment of a smaller sum is not a satisfaction (discharge) of an obligation to pay a larger sum. In this case. he had paid him £5 2s 6d on 1st October. In Pinnel’s case (1602) 77 ER 237. and that Pinnel had accepted this payment in full satisfaction of the original dept. Moreover.However. Cole’s defence was that. if A owes B RM500 and B agrees to accept RM100 in full satisfaction of the debt. but B is not bound by the promise made. in contrast to the Pinnel’s case.” . waiver of performance without any consideration would still be valid. the performance of the promise made to him. there is no waiver. the Contract Law must prevail by virtue of Civil Law Act. even though he receives no consideration for such waiver. In the case of Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287. However in the same case. His promise to waive his right is now binding him. If that cannot properly be inferred. Gunn Chit Tuan SCJ has also submitted that: “But in this case we also agreed with the respondent that it had not been shown to the trial judge or to us that the respondent had intentionally foregone its claims. The promisee upon waiving his right. every promise may waive the performance of the promise made to him. therefore the Pinnel’s case is no longer applicable in Malaysia as whenever certain provision of Contract Law is in conflict with the English Law. wholly or in part. Gunn Chit Tuan SCJ in his judgment submitted that Section 64 of our Contracts Act 1950 represents a departure from the common law in England. Section 64 of Malaysian Contract Act provide broader rule of waiver as follows: “Every promise may dispense with or remit. or may extend the time for such performance. The English Common Law will only be applicable if there is no provision in the Contract Act or any Malaysian Law to deal with the particular matter. which evinces an intention to affect the legal relations of the parties. the Supreme Court case. Under our law neither consideration nor an agreement will be necessary. By having Section 64 of Contract Act to govern this matter. Doctrine of Waiver of Performance in Malaysia Meanwhile. Meaning that. We therefore agreed with the learned judge that as a matter of fact waiver did not apply in this case. or may accept instead of it any satisfaction which he thinks fit. On the other hand the learned judge who saw and heard Mr Ong in the witness box accepted his evidence that the respondent did not intend to abandon its claims under the various contracts.” In this section. Our law on waiver in Section 64 is similar to the Indian law on the general principles of waiver under which it is open to a promisee to dispense with or remit wholly or in part the performance of the promise made to him or he can accept any promise which he thinks fit. for example to accept smaller sum can no longer claim for the balance of the whole debt.of waiver is that there must be conduct. Joe by depending on the statement made by Rachel. Furthermore in this case. RM24000 with a bottle of wine made by Rachel Berry is inadequate and insufficient consideration as Joe never intended to waive his right to the balance of the whole debt. we submit that Joe was not intended to waive his right for the balance of the whole debt. He may decided to accept the RM24000 with a bottle of wine by considering that he is giving time to Rachel Berry to pay him for the balance of RM4000 as Rachel Berry said that she is now only afford to pay RM 24000. may think that even though Rachel in that time was having a financial difficulties. she will pay the balance of RM4000 after she completed her new film as she had disclosed to Joe that she manage to get the role in the new movie and Joe at the time of accepting the amount of RM24000. RM4000. the respondent by successfully proving that he had no intention to foregone the ____________ will render the waiver to be in valid. never know that Rachel’s new film will resulted flop. . we submit that the payment of a lesser sum. Joe Black was not expressing his intention to waive his right to the payment of balance of the whole debt. the respondent can _________________________________________________________________________. CONCLUSION In conclusion. Thus. By relying on the case of Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal & Kejuruteraan Sdn Bhd [1990] 3 MLJ 287. There is no declaration on his part to accept the RM24000 with a bottle of wine as a full satisfaction for the original debt. the appellant had failed to produce the witness and the evidence that to prove the respondent has intentionally and willingly foregone _______________. Joe never said his intention to let go RM4000 by not saying he will not ask for the balance of the debt latter on. RM 4000. Joe in this case may probably never intend to forgive the amount of RM4000.In this case. APPLICATION In application to the situation in hand. Hence.