BUKU ABSTRAK - Universiti Putra Malaysia

Social Sciences
Franchise Act 1998 or the Common Law: A Question of Primacy
Dr. Zahira Mohd. Ishan
Shaik Mohd. Noor Alam S. M. Hussain
Faculty of Economics and Management, University Putra Malaysia,
43400 UPM Serdang, Selangor, Malaysia.
+603-8946 7779; mizahira@econ.upm.edu.my
Franchising in Malaysia is governed mainly by the FA. The FA however, is not the sole legislation for
franchising because section 3(3) of the FA apparently acknowledges reference to the provisions of other written
laws that are not in conflict with the FA. This paper examines the approaches of the judiciary in Malaysia to
franchising relationship disputes through the cases of Rangkaian Hotel Seri Malaysia Sdn Bhd v. Husni Hussain
[2007] 3 CLJ 446 and Neeta’s Herbal (M) Sdn. Bhd. v. Lim Bak Hiang [2000] 6 MLJ 321. Both cases are
critically analyzed in order to identify whether franchising law is acknowledged and recognized by the courts.
Husni Hussain case was a clear case involving franchising relationship dispute whereas the facts of Neeta’s
Herbal had vaguely described the defendant as a franchisee of the plaintiff. It is found that franchising law was
not being referred to at all in both cases although the dispute was related to that area of law. This paper also briefly
examines the bindingness of the FA to franchising in Malaysia. The FA regulates and provides substantive rules
on franchising in Malaysia. Section 58 of the FA provides that all parties to a franchise agreement are bound
by the FA unless the exemption is granted by the Minister. In addition to that, the maxim generalibus specialia
derogant provides that when there is inconsistency between the special law and general law, the special law shall
prevail. The question of primacy between specific law and general law has been resolved through this maxim,
which is reflected in a long list of cases on this particular issue at common law and Malaysia.
Keywords: Franchising, judicial oversight, specific law
Unconscionability - Statutory Prevention of Unethical Business Practices
Dr. Zahira Mohd. Ishan
Shaik Mohd. Noor Alam S.M. Hussain
Faculty of Economics and Management, University Putra Malaysia,
43400 UPM Serdang, Selangor, Malaysia.
+603-8946 7779; mizahira@econ.upm.edu.my
The study is to examine broadly the doctrine of unconscionability and to analyze to what extent business
as well as consumer contracts in Malaysia do not preclude the possibility of unconscionability and unethical
bargains. The commercial or business to business contracts look into the relationship in agency and franchising
while the consumer contracts specifically relates to the sales of goods, consumer credit as well as sales and
purchase of housing. These commercial and consumer contracts are commonly adhesion in nature and are getting
more complex in the modern world. This paper would also suggest the statutory requirement of conscionable
conduct in all its variation in both the formation as well as performance of commercial and consumer contracts
generally. The variation of conscionable conduct refers to conducts that are fair and made in good faith or without
undue influence, gross inequality or dishonesty.
Keywords: Unconscionability, unethical business practices, business-to-business contract, consumer contract
162