Acknowledgment Of Debt Or Contractual Claim Via WhatsApp Beyond Limitation Period
It is trite law that any action for debt or any pecuniary contractual claim ought to be brought within 6 years from the date where such debt due or such claim arises.[1] This is called limitation period of a claim.
That being so, one may still bring such claim beyond the 6 years limitation period if the debtor or the counter-contracting party acknowledge the debt or the claim after the expiry of the 6 years limitation period.[2] In that case, the 6 years limitation period would start to run from the most recent acknowledgement.
Section 27 Of The LA 1953
To avail oneself to the exception, the party making the claim ought to demonstrate that the acknowledgement is made in writing and signed by the debtor or the counter-contracting party or their agent.[3] For completeness, Section 27 of the Limitation Act 1953 (LA 1953) provides that:
“(1) Every such acknowledgment as is referred to in section 26 or in the proviso to section 16 of this Act shall be in writing and signed by the person making the acknowledgment.
(2) Any such acknowledgment or payment as is referred to in section 26 or the proviso to section 16 of this Act may be made by the agent of the person by whom it is required to be made under that section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.”
The Federal Court in Yam Kong Seng & Anor v Yee Weng Kai [2014] 4 MLJ 478 held that text messages in the form of short messaging service (SMS) constitute acknowledgement of debt envisaged by Section 27 of the LA 1953. In an era where technological development is so rapid, to strictly construe “in writing” and “signed” to mean written and signed by hand could no longer give intent to the purpose of the aforesaid exception. In this regard, the Federal Court held:
“With the prevailing technological advancement made (and unstoppable at that), record keeping for businesses or daily affairs exchange have moved away from the laborious format of writing to the overly dependence on computers, and of which the mobile phone is one. In short we are slowly turning into a paperless society. Dictated by common sense and justice it is no surprise that not only the conservative courts but also Parliament have taken the approach that writing need not be hand written...
Suffice if there be any mark, written or not, which identifies the act of the party, perhaps in the form of mark or by some distinguishing feature peculiar only to that person, then the acknowledgment has been signed. Analogically we hold the view that the conventional paper is substituted by the mobile phone, which holds features that can preserve information or transmissions in the like of the SMS, with the telephone number representing the caller or the sender of some message. In fact it is the norm nowadays to substitute the number of an identified person with his name to assist instant recognition. The fact that the respondent admitted sending the SMS sealed his liability.”
Current Trend
More recently, the courts have adopted the reasoning laid down by the Federal Court and accept acknowledgement of debt via whatsapp messages to constitute acknowledgement envisaged by Section 27 of the LA 1953.[4]
The question of acknowledgement of debt by e-mail was considered by the High Court in Jamalulail Ismail v Universiti Tun Hussein Onn Malaysia [2022] 1 LNS 273. In this case, the court did not accept the e-mail in issue as an acknowledgement of debt because the e-mail was not clear and unequivocal so as to amount to an acknowledgement of the debt in issue. Notwithstanding so, the High Court acknowledged that a digital signature would amount to signature as envisaged by Section 27 of the LA 1953.
Based on case law development, it is safe to conclude that an acknowledgement of debt, though not handwritten and signed by hand, could amount to acknowledgement as envisaged by Section 27 of the LA. This may include acknowledgement in the form of SMS, whatsapp messages, as well as e-mails.
Conclusion
What is more crucial is that the acknowledgement must be so clear and unequivocal, which shall leave no doubt as to the nature of liability and the amount of debt acknowledged. In this regard, ongoing communications, meetings and discussions do not constitute sufficient acknowledgement of debt pursuant to Section 26 of the LA 1953.[5] Finally, the party claiming acknowledgement of debt by way of SMS, whatsapp messages or e-mail ought to establish that the mobile number or e-mail address belonged to the person making the acknowledgment.
Authored by Stephanie Chong Keh Yin, an Associate with the firm’s Dispute Resolution practice.
[1] Section 6 of the Limitation Act 1953 [2] Section 26 of the Limitation Act 1953 [3] Section 27 of the Limitation Act 1953 [4] Shen Yong Engineering Works Sdn Bhd v Damai Residence Sdn Bhd & Anor [2023] MLJU 104 [5] Majlis Perbandaran Seremban v Era Baru Sdn Bhd and another appeal [2018] MLJU 706
27 March 2023