00054
54
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(a) in terms of Hong Kong dollars.
3 (2) b.
5.
(a)
*Agent" should read "legal agent". In the original draft of March 27, 1946, the words used were "legal agent".
A demand by an agent whose authority had been determined should not be deemed to bind a prin- cipal, particularly as many such agents were undoubtedly acting under duress.
(b) To avoid needless complications and attempts
at over refinement which are likely to defeat the object it would be simpler and more satis- factory to deletelines 3 to 6 (except the final word "such") and say
(0)
Н (b)
where the payment was made in
occupation currency in satis-
faction or part satisfaction
of a capital debt
such pay-
-
ment shall be revalved in
accordance with the scale etc."
If Clause 3 (2)b is retained the burden of proof
should be on the debtor to show
(1)
that payment was demanded by a creditor, or by his agent, and
(2) that payment on a date certain
was of the essence of the contract.
It is the debtor who claims relief and it would
not be right for the creditor to be burdened with the onus of proving negatives.
As the expression "time is of the essence of the con- tract" as usually applied in commercial transactions may not be clear when applied to other cases it should be made certain that fixing a date for payment in a mortgage deed does not generally indicate an intention of the parties that actual pay- ment shall be made on the named date;
(b) that the due date on a Bill of Exchange is not of the essence of the contract.
6.
Clause 6.
In order to make this clear it is suggested that the following words be added to Clause 6.
"or, if there were no deposits in occupation currency,
cm2
Ref.:
CO 537/1374
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