Law
LEGAL 1
Business MYTHS:
(1) Warranty: Enter into an agreement with the seller/ buyer (protects seller) Carry out limited terms. Binding. No warranty- Sale of Goods Act (Can. & US)- depends on amount paid on goods. Condition & guarantee Entitled to recession of contract (2) Cheques: 3 Parties: Me- maker/ drawer & you- payee & bank: payor/ drawee Certified cheques: - No guarantee of payment b/c maker can make a ,,stop payment. - Put into a suspense account. - Must be issued. -Who certified the cheque? =Maker (me)- not guaranteed b/c of the stop payment. =Payee (you)- Guaranteed (3) Telephone Call: Personal right to legal counsel.
Law:
Rules and Regulations (ok definition) Person-made (emphasis) " law is nothing more than a tremendous maze of person made rules and regulations" 2 Sources of Law: (1) Contemporary/ Statute -Act, legislation, code, enactment (all mean same thing). (city Bylaws) - Minute compared to Common Law - Only 7200+ pages (only skeleton of the law) (2) Common Law - Judge-made law, case, precedent. Stare Decisis meaning previous court decisions ***WILL BE ON EXAM*** -common law very vast (based on previous court decisions) "Ignorance of the law is no excuse" Grounds for Divorce in Canada o Marriage breakdown = when a husband and wife who have been separated for at least 1 year o Physical or Mental Abuse Jurisprudence -Our system of laws, made up of both statute and common law. -Collaboration of the law Statute = skeleton of the law Parliament gives us only the "skeleton of the law", allowing the courts to interpret it- sets precedents Crime isn't committed without intention of the person to commit it. Mens Rea = mental intention -Each individual is presumed to know/ understand both common & statute law. -When law is not found in either common/ statute law, then there is no law applying to that matter. At this time a new law can be made. By virtue of Canadian Charter of Rights allowed to a phone call if in jail.
2 Courts of Canada:
Ottawa -Supreme court of Canada -Federal court -Tax appeal court
(SK) Judicial Tribunals of Judicial Hierarchy (All together) CANADA Supreme Court of Canada Federal Court Tax Court of Canada SASKATCHEWAN Court of Appeal Queen's Bench Provincial Court Justice of Peace Court of Appeal Civil Queen's Bench Family Law Division Criminal Jury
Provincial Court Justice of the Peace ***Higher up the court the greater the jurisdiction*** Administrative Tribunal: quasi-judicial (between administrative and judicial; Grey Area) o Every profession is run by an administrative Tribunal (a body created by a specific statute to carry out the objectives of that statute) *Examples of Administrative Tribunals -Highway Traffic Board points recorded in Regina (speeding drinking and driving, overweight trucks) -Labour Relations Board unfair labour practice, labour management relations -Liquor + Gaming Commission restaurants serving alcohol, gaming -School Boards +High School Boards -U of S Board of Governors sets policies for the universities -Human Rights Commission complaint against employer for sexual harassment -Hospital Districts -Police Departments municipal police o No right of appeal unless administrative tribunal acts outside of administrative jurisdiction. Professional engineering society *Eg. To sell alcohol, need to acquire permission from Sask. Liquor +Gaming Authority, to practice medicine, must go thru a tribunal as well.
o Can hold hearings/ trials.
Legal system could not operate without the administrative tribunal Justice of Peace:
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o o o o o o o o o o o Used to settle minor criminal matters in the past, now only in traffic/speeding tickets. Where one swears an allegation is true about someone To get a civil marriage, go to marriage commission, similar to Justice of Peace. Not allowed to perform marriage act; (these people called marriage commissioner) If in jail, use phone call to call Justice of Peace, it may let you out on bail (if charge isn't a serious offense) On duty 24 hrs/day- 7 days/wk Isnt used as often nowadays. Not train in law- elderly & well respected. Perform certain functions. Important role Justice of Peace plays: He makes the decisions whether released from jail or not Appearance Notice Released for Court Date (Form filled out by JP to release from jail) Provincial Court: (1st REAL court discussed) (Peoples court) Deals with 95% of all criminal matters All preliminary hearings All quasi-criminal matters Used as small claims court Civil law matters up to $10,000 About 48 provincial court judges (appointed by provincial minister of justice) Legal background- 10 yrs of being a lawyer Civil Law relationship between individual + individual (99.5% of law) Criminal Law relationship between state and individual (only 0.5% - less than 1%)
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Table 1: Difference Between Civil and Criminal Law Criminal Law Relationship between state and individual SEEKS: Punishment
Civil Law Relationship between individual and individual SEEKS: Compensation
2 categories of Criminal Law: 1) Summary conviction: o less serious type of criminal law o carries a general penalty ($2000 and/or 6 mos. Prison- unless otherwise stated) o e.g. Causing a disturbance in a public place, common assault- not causing bodily harm with intention, joyriding, theft under $10,000, prostitution, impaired driving) 2) Indictable offense: o more serious type o carries a specific penalty o eg. Murder [1st murder -life (planned/ premeditated - cannot apply for parole until served 25 yrs), 2nd murder - up to life (Unplanned- apply for parole after 10 yrs)], sexual assault (3-5 yrs.), B + E (up to life), arson, manslaughter (4-7 years imprisonment), armed robbery, breaking and entering. o 1st or 2nd Murder = mandatory life in prison o Manslaughter non intentional killing (e.g. Someone killed in a fight) o Person committing robbery and carrying a weapon or imitation of a weapon = minimum sentence is 3 years in a penitentiary o Break and enter into a dwelling a mans home is his castle no one has the right to enter dwelling homes (penalty is greater for entering dwelling houses than business)
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o Impaired/Dangerous driving are examples of dual offences. They can be either summary conviction or indictable offences. -Impaired driving 1st offence- $600 (01/07/2000) min. fine & 1 yr min. suspension. If person charged with a criminal conviction offence, it is recorded in an information (formal word used to convict someone). -Information = formal document sworn by police officer in front of Justice of Peace. Provincial court has jurisdiction over all summary conviction offences. Most indictable offences give the person a choice of where he/she wants to be tried; Provincial court or Court of Queen's Bench? With or w/o Jury?)- Right of election (definition: the right where one wants to be tried) All preliminary hearings take place before a provincial court judge (precede before trial) Two objectives for a preliminary hearing: For the judge to hear all the evidence the prosecution has against the case (him or her) Allows the judge to determine if there is enough evidence to warrant a holding of a trial Committal for Trial = the decision is to go to trial Discharged = the decision of the judge to not go to trial (not enough evidence rare) "It is up to the state to prove me guilty beyond all reasonable doubt" Preliminary hearing is not to put the convicted in Jeopardy If new evidence is found: Must be given to the prosecution in writing what the new evidence is found Allow adequate time for prosecution to analyze the new evidence Judge w/o jury Trier of the facts and trier of the law Facts Decision Reason for decision 2 purposes of preliminary hearings: (1) Prosecutor calls all its witnesses as in a trial, to present their evidence. Judge decides whether or not the evidence warrants a trial. If judge is satisfied that there is a case, he will send person to trial. *If insufficient evidence- discharge (2) Because one has been charged with a serious offence, the law allows one to hear all the witnesses against one, and cross-examine them. *It is very rare for defence to call its witnesses. *Here is where you may choose where to stand trial. *Accused usually choose higher court- advantage: watch witness *Accused should not be ,,surprised with witnesses- should have full disclosure feel unthreatened. o Who sits on a jury? 12 reasonable people o Decisions of a jury must be unanimous. If not in consensus, it is a hung jury (decision not unanimous). o Jury is a judge of the facts, judge is a judge of the law. o In criminal, 12 people on a jury. o In civil, 6 people on a jury (not discussed). o Best defence in criminal offences: TIME (delay people forget what they said at the preliminary hearing avenue of defence) o Quasi-criminal matters: Not criminal, not civil (eg. Jaywalking, speeding, traffic tickets, bootlegging, fishing without a licence)
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o o o o o o o o o Small Claims Court (1969) (Civil Court): Suing people Informal type of court Claim up to $10,000 (depends on province)= individual/ up to $3000- corporation *If in excess of $10,000- can give up excess and limit to $10,000. Popular Dont show up automatic loss of person who did not show up Only area civil court deals with Non- expensive No need for a lawyer Simple procedure Court of Queen's Bench: Exceeds $10,000 Wills and Estates Family law Divorce, Annulment, maintenance, custody, apprehension, adoption, filiation, matrimonial property Spouses are now defined as two persons regardless of sex who have cohabited continuously for two years Divorce is federal regulation marriage breakdown (2 reasons see earlier) Annulment 2 persons go through a form of marriage and one or both believe that they are married or go through a lawful marriage but do not consummate the marriage. Declaration of the court that the marriage is void. Maintenance involves support. Under the law, if husband and wife are separate, either one can take the other one to court (Family Maintenance Act). Must maintain child up to 18 or as long as the child is pursuing higher education. Requires payment to spouse no longer tax deduction. Custody (and Access) deals with who gets the children and who gets visitation rights. The court looks in what is in the best interest of the children. Apprehension deals with children that are deemed neglected. Social services department has the right to take the persons from the parent or the guardian. Not properly looked after in regards to hygiene, shelter, food, etc. Courts decision: Neglect unfounded children returned, Neglect dealt with returned to parents, Neglect children taken Adoption - If a child is adopted the parent has to pay no more maintenance. 2 types court room adoption and private adoption Filiation naming of fathers of unmarried parents (born to persons who are not married). If charged with a murder (accused person elected to be tried), must appear before a judge + jury, only judge if you're going to plead guilty. (Must be in the court of Queen's Bench) Appeal court of summary convictions. Jurisdiction over all matters. Jury alone: -Trial Queens bench- exactly the same as Provincial Court -Judge assesses facts & makes decision (guilt/ innocence) -Applying law to facts- ratio decidendi Jury: -Judge instructs jury on law but doesnt interfere with facts given to jury. -Jury makes decision.
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o All claims for damages Eg: Breech of contract; cost up to $10,000 Family Law Division: Divorce, annulment, alimony (a.k.a. maintenance), social workers & apprehension of neglected children: parents abandon their children- Minister of social services must make 1 of 3 decisions [return child to parents, temporarily apprehend, permanently], adoption, filiation/ paternity, division of matrimonial property, custody, access Childrens Law Act Family maintenance Act: (still married) -Provincial statute: if people divorce, if desertion occurs, maintenance is ordered (provide either spouse on childs behalf. -Child support Desertion: Husband acts in mental/physical cruelty, adultery, abuse Access rights: very rarely will the court not grant visitation rights -E.g.: 1 or 2 times/wk & alternate holidays -May also be granted to other relatives (E.g.: grandparents, aunts, uncles, etc) Adoption: is a happy area of the law; law steps in to take neglected children away from their parents. -2 Forms: (1) Private adoption (adverse inference) (2) Recognized by statute Filiation (Paternity): deals with legally naming an individual the father of the child of an unwed mother. -Signing a ,,paternity agreement. -Summons-father to court, wants maintenance paid, mother testifies in court with proof/ evidence: pregnancy certificate. -DNA test (not enforced by law) but must file court order. [$802.50 ($750 + GST) each extra individual $267.50 ($250 + GST)] -if unsure, the judge can order all possible fathers to pay maintenance (in effect until child reaches 18* or dies) Divorce: -Grounds for divorce= marriage breakdown (1)Intentional separation for 1 yr (2)Physical/ Mental Cruelty -Uncontested divorce -Doesnt need to be in a courtroom -Can be done through paperwork -No longer ,,husband & wife on date of divorce -Approx. 4 months. Annulment of Marriage: -Marriage never took place -Nullity -Retroactive -Marriage must be consummated- otherwise annulled -If person believes they are married- can have it validated. Must always provide for a child- even if child is over 18 and is attending school of recognized higher education.
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-Cannot pay directly to child- must be paid to parent/ guardian -Child support tables- depends on: Province (where income is made) ***NOT tax deductible, salary, & # of children. -Eg: $50 000/ yr salary (1 spouse/ 1 child) - $402/ month *Min. amt.* -Over $150 000/ yr salary- within the courts discretion. Custody: -Extremely emotional area of law -Last resort -TEST that court uses: -,,What is in the best interest of the child? - Who has been the custodian parent? -Joint custody- child will in fact live with 1 parent- but both parents will have an equal say in the upbringing of the child. Matrimonial Property Act: Early 1970s; what's in man's name went to him, same for woman. Rothwell Case (Alberta) Married 25/ 28 years, everything was in man's name. She sued for a share of the estate (got nothing) [AB Court of QB] Went thru Supreme Court (still nothing- sent out signal of unfairness) -Got nothing because there was no law to help. -Children Murdoch Case -Similar facts to Rothwell Case Sup. Ct. enacted legislation; Division of Matrimonial Property Act (statute) [any property acquired by husband & wife after date of marriage] Can now get things not in one's name Woman had to prove she was entitled to the assets Always the argument of equal contribution.
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New statute : "Matrimonial Property Act" o Difference: take all assets of husband + wife, put everything into a common pot (incl. Inheritance- unless in will of the inheritor). there is a presumption that it is cut in 2 unless 1 spouse can prove other doesn't deserve half. o Expanded- allowed court to encroach asset acquired prior to marriage. o Entering into Prenuptial agreement- agree in event of death/ divorce. -Exempt someone from Matrimonial Property Act. Common Law relationship: What's yours is yours, what's mine is mine. Spouse can claim half of your inheritance (unless in will of the inheritor) Premarital relationship: Can exempt the "Matrimonial Property Act" If get a divorce, they don't go by this act. Has to be properly documented + stated. Supreme Court of Canada:
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o Court of Appeal-Appellate Court (Review Court- everything: E.g.: Judge/ Jury finding of fact, etc) -Appeals- Queens Bench (civil/ criminal) -Appellate Court -7 judges (3,5,or 7) o Queen's Bench, Justice of Peace -Trial Court/ Court of First Instance. -Trial Court -9 judges (3, 5, 7, or 9) -***Always an odd # of judges, therefore always a decision o Types of decisions: Unanimous (all agree) Majority (judge who disagrees is the dissenting) o Award of damages- vary (sentences up/ down) Court of Appeal: o Sustain, uphold decision o Quash; put aside decision o Order a new trial Federal Court (Ottawa): o All law suits against the federal government o Tax Appeal - deals with your tax assessment (E.g.: Income tax, excise tax)
CONTRACTS
A contract is a relationship between 2 or more people that gives rights + obligation E.g.: Someones home no right/ obligation. o Play an important part in our personal lives o If you break a contract, other person has a right to take you to court. o As soon as you walk into a restaurant, you enter a contract. **A contract is an agreement between 2 or more capable persons for a legal consideration to do or not to do some lawful and genuinely intended act. 5 Essential elements of a contract: 1. Capacity of the parties 2. Mutual agreement 3. Genuine Intention 4. Legal Consideration 5. Lawful Subject Matter o If any 1 or more elements are missing, there is NO contractual relationship (No right/ obligation) o Writing is NOT required to have a contract o Writing may be required to have an enforceable contract o
(1) Capacity of the Parties
o Everyone has legal capacity to contract, however there are certain classes we must look at. Infant (anyone <18): A contract made by an infant is void (repudiated) or voidable (enforced/ repudiated) the option of the infant (No effect) -Unless it is a contract for necessaries -If the subject is [unless it is a contract for necessaries (+ than necessity)] innecessary (what is
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befitting). -What is befitting an infants station in life. -Law recognizes different people enjoy different standards of life. Coming of Age Act: -Adult @ age 18 -18 & under- youth -Specifics over-rules general Eg. In Sept/97; -a 17 year-old enrolls in University In Oct/97 -goes to Joe's used cars: he puts $500 down, owes $4500. 3 days later pays the $4500 In June/98 -still 17, wants $ back or he will sue. *because he's 17, contract is voidable (gets $ back)
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*Note: parents aren't at legal obligation over infant, can't be held responsible for wrong-doings o Eg: MON- $2000/ car - $200 down payment = $1800 (Infant) WED- $3000/ car Person X FRI- Infant with $1800 for car- but car was sold to Person X- knows car was sold to Person X Therefore, demands the $1000 profit from dealer b/c of breech of contract. GRANTED b/c right to enforce contract. o Capacity: Beveryone has the capacity to contract Capacity of an alien person to contract: Law does not distinguish between citizen + CDN person Alien has full capacity to contract. Enemy Alien - contract made by one is unlawful and illegal (Can. in war with...) While intoxicated by drugs/alcohol, mentally unstable: Law distinguishes between necessaries + unnecessaries Necessaries - contract is legally binding Non-necessaries - person will be held accountable unless can void contract if person mentally incompetent, and prove that the other person ought to have known. Must prove under influence of drugs & alcohol., & other person ought to have known. ,,Sober 2nd thought Capacity of a Corporation to contract: Eg:Company Limited Co. Ltd. Ltd. *Required to end name with one of these in any business dealings Corp. Incorporate *Law says a contract is an agreement between 2 or more capable Inc. PERSONS Company Limited o 2 types of persons: BIndividual person BCorporate person
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o Corporation is a person by law (artificially created)- Autre vie (French) -Corporation- Latin- Corpus 3 different ways of carrying out a business 1) Sole proprietorship 2) Partnership 3) Corporation *Must choose 1 of these 3. *Different levels of liability. *Business main objective is to make money (cannot exist if it does not make money)
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1) Sole Proprietorship: -Simplest form -One person owns entire business; is personally entitled to all profits, liable for all expenses (losses). -Singular tax return -Can name his business any name as long as he/she does not end in a corporation prefix 2) Partnership: -2 or more persons carry on a common business with a view toward the sharing of profits + losses -2 INDIVIDUAL persons -Cannot use corporation end names -A partnership is a Dangerous ship to sail. -(above) Because a partnership is governed by the law of agency -Law of agency each partner represents the other partner -each partner is personally liable to the wrong doing of the other partner -each partner have to carry liability insurance this protects the negligence of wrong doing to the other partner -orthopedics (bone doctors) pay most in liability insurance (USA pay $110,000) -Not as high cost for liability insurance in Canada as in US -Each have to pay income taxed on the earnings based on the percentage of ownership -If one of the partner dies the partnership is over. -One partner can sue the other for lost income and take their assets -A partnership is legally known as a firm, name and style of ___ -No capacity- no legal status in law. -Company is very often used in partnerships and means absolutely nothing -Buy-Sell Agreement: Buy sell provision if one partners wants out or dies, one of the other partner has first right of refusal to buy the other partners assets
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Partnership Act: -Codifies all aspects of partnerships -Dangerous business to enter into; there is personal liability ( if any 1 partner does anything that makes the business liable, all partners become liable. -limited or silent partner cannot be involved in anyway with the partnership (simply more like an investor) -each partner acts on behalf of the others (agency of each other) Fiduciary Relationship: BMany partnerships use the word Acompany@. Eg. Jones & Co., Mike's Gas Co., etc.- but means
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3) Corporation: -Comes from Latin Corpus meaning body -Corporation recognized as a legal person at law -Artificially created person -Legal entity unto itself -autre vie (French = another life) -no one can control the corporation -Born with issuance of many shares (can control amt issued). Comparison with Human Body Human Body 1E11 Cells Named before born
Corporation Body Thousand to Millions of Shares -Every Corporation must conclude its name with Co. ltd, Ltd., Inc, Corp, etc. -Can be given a numbered corporation (Through a certifying body) -Give the corporation a set amount of shares (ex. 20,000 shares at $1/share then authorized share capital is $20,000) -Authorized share capital is fictional called a shell
-Authorized share capital number of shares the company is allowed to sell at a set amount *Business Corporation Act -two types of corporations: 1. provincial or 2. federal -Start out provincially -Afterwards, if you so choose, register it federally (carry out business throughout country) -Go to Dir. Of Business Operations to make sure where a corp. is registered. -A corp. must be legally registered to do business in the province in which it operates o Must acquire the following to incorporate: i) Articles of Incorporation: a -set out name b -set out share structure (#, value of), class of shares- [Preferred redeemable (no voting rights, like bond), Common (voting rights), & Preferred (no voting rights).] c -set out incorporates (# of directors- max. 5) d -registered office Shares: set amt. At certain value is called Aauthorized share capital@ eg. 1 million at $10, 10 mill @ $1. BShell corporation: one which has just been incorporated. ii) Bylaws: -Certificate of Incorporation: Abirth certificate@ of a corp. -Corp. can commit a criminal offense (no jail, but a fine is levied usually very heavy) -Directors at times can be held liable to the corporation
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-Debenture (floating charge): Ba security interest -Bank controls this when loans are made to insure theyre paid back. -Promissory note: promise to pay back -A corp. is a legal entity unto itself- cannot own corp., can own shares -Unless specified in articles of corporation. -If a company goes bankrupt while youre under contract with it, theres nothing you can do. Shareholders need not get involved, since they have no liability to you. -Ltd.@ means the liability of shareholders is limited only to money they still owe for shares -In sole proprietorships and partnerships, people are personally liable, everything you own is up for grabs -Reason why a corporation must end its name in a certain way is to forewarn the public -Subscribed capital: amt. of shares the corp. sold -To become a corporation usually costs $1000. -In partnerships, if a partner dies, partnership itself dies too. -In a corporation if a shareholder dies the company still continues on. -Can use revenue to pay back shareholder loans tax free -The corporation must also submit a tax return Business Corporations Act certification for corporations Subscribed Capitol - number of shares purchased from the corporation Debenture acts like a floating cloud over the company -floating charge -at any time the loaners can enter the company and take their money back -can take over the business (assets, books, etc.) -If at any time they want to take their money back, they can Corporate Shield you can sue the corporation but you cannot sue the individuals running the company Corporation's Capacity to Contract -A corp. has a capacity to enter into a contract, unless limited or prohibited by its bylaws. -Bylaws are the rules to the corporation (restriction). -ex. A pharmacy could say the do not want to own or acquire land or buildings -Legal, dental, medical professions can't incorporate. Two types of Corporations o Private Corporations Cannot sell shares publicly o Public Corporations Entitled to share their shares to the public Due Diligence inspecting the company to determine if there are any problems within the company (ex. Inspecting Cameco) before the shares are put on the market. Prospectus before the shares can be sold on the market the company must apply to the securities commission.
(2) Mutual Agreement:
Offer ----an offer must be absolutely definite (I hereby offer to...) -a price tag is called in law an invitation to treat .. it is the consumer that makes the offer and it is up to retailer to accept Acceptance ----unconditional -communicated
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-manner (reqd by the author) -time period (reqd by the author)
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Price tag is not an offer to sell, but an invitation to treat unconditional acceptance: one which does not in any way change terms of the offer vs. conditional acceptance: -changes the terms (counter-offer) -not acceptance Offeror (makes offer) offeree (offer is made to) 1) A counter-offer voids the original offer. Original offeror is no longer bound to accept acceptance of original offer. An offer can be withdrawn at anytime before it is accepted (even if contract states otherwise) An offer, once it is accepted, cannot be withdrawn Offer + acceptance, intertwined, form mutual agreement 2) Acceptance must be communicated in the manner required by the offer. The unconditional acceptance must me communicated to the offeror The acceptance must be communicated in the manner agreed upon ex. By telephone, letter, in person, etc. If no manner is stipulated, law requires you to accept in same manner in which the offer was made. 3) Acceptance must be made in certain time period (set out by offeror) If no time period stipulated, then you have a >reasonable= amt. of time in which to accept (dependent on circumstances in each case). Postal acceptance rule: communication of acceptance takes place the moment a letter is posted. Option to purchase contract: Exclusive right to purchase an item in exchange for money (pay $ to secure the right to buy) Offer cannot then be withdrawn. Usually the money will act as a credit towards the amount owing -Common in business world. Lease Option: lease agreement in which during the leasing period the person leasing has the option to purchase.
(3) Genuine Intention:
o o Intention is not enough, must be genuine Items which void genuine intention: (A) Fraud (B) Misrepresentation (C) Duress (D) Undue Influence (E) Mistake
(A) FRAUD: (Malum Persay)A false representation of material facts [be sure to make material fact (stiulate items of input)]made with knowledge of its falsity (lied, conned, cheated). o False representation: any representation which is not true, no matter how the representation comes about o Can have a false representation by staying silent ex) no questions asked insurance policy contract may state to disclose information about yourself o Uberrima fidei: (utmost faith) one is obligated to disclose everything you know about something, even if you're told you don't need to say anything.
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o o o Prospectus: free disclosure by a company of all its financial assets + obligations (form of uberrima fidei) Material fact: the very representation which induced one to enter into a contract. o "Had it not been for the false representation I would have not entered the contract" With Knowledge...@: Most important words in criminal law Mens Rea (translation; mental thing): knowledge, intention...To deceive- guilty mind -Can't have a criminal wrong without Mens Rea Law doesn't look at the result, but at your conduct -Both civil & criminal law.
(B) MISREPRESENTATION: A false representation of material fact without knowledge of its falsity o If you write a cheque, and you know it will be no good, but plan to pay your account before the cheque gets there but don't, then it's considered fraud. o Post dated cheque is a misrepresentation- not fraudulant. (C) DURESS: o The threat of actual physical violence.
(D) UNDUE INFLUENCE: o The improper and unconscientiously use of an influence or power possessed by one person over another person due to their relationship or circumstances. o Undue influence is presumed to exist in the following relationships: (when alleged) -mother/father contracting with child -teacher with student -lawyer with client *Contracting* -doctor with patient -engineer/architect with client -clergyman with parishioner -accountant client -any professional person with patient/client/customer o In all these relationships, the onus (obligation to prove) rests on he who alleges (person who makes the claim) o It is presumed to exist when alleged in the following relationships Law recognizes by way of presumption that the professional person/parent, etc. is in a superior position. o If the other (inferior) party makes allegation of being brainwashed law says undue influence does exist o Sometime onus shifts, and you have to prove your innocence (eg. Buying stolen goods, arson, never get into bed with client) o Plaintiff (prosecutor) o Trade-puffing: signs; best place in town@ we won't be undersold@ Satisfaction guaranteed or $ back!@ (Not an obligation to do so) ***This is called trade-puffing; the legal right to exaggerate*** -This is not fraud/misrepresentation. Law says a reasonable person knows this is just exaggerations. - trade-puffing got its name from the Carbolic smoke ball case(1902) in England said inhale this smoke and it will cure any type of influenza, if it didnt cure you they had a 10,000 pound reward.
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One lady used it and it didnt help her sickness, and she lost all her hair. In her law suit, the judge said trade-puffing and that is how it got its name.
(E) MISTAKE: o Very complex area of the law o 3 types of mistake void genuine intention (Mistake in judgment not one of these): -Mutual mistake: existence of the subject matter (subject is no longer in existence when 2 entered into a contract. 3 types: 1: Existents of the subject matter 2: Identity of Contracting parties 3: Identity of the subject matter (1) Eg. Car is sold at dealership, neither party knows it burned in the lot an hour ago. BAt the time of contract, both parties unaware subject matter no longer existed -Mutual mistake: identity of subject matter (mistake in identity of subject matter) (2) Must be of one mind about what is being sold. No Consensus CAad idem@ (meeting of the minds) -One thinks he is Buying a red GMC the seller is thinking he is selling his blue Ford -Mistake: Identity of contracting parties. (3) Eg. C enters into contract with B -But thinks it is with A -C is not obligated to B February 10, 2003 read ahead of legal considerations and lawful subject matter
(4) Legal Consideration:
o o o That which the person receives (present) or is to receive (future) for what he (present) does or agrees to do (future). Consideration must be future or present in order to be a legal contract (if in past, there is no contract) Eg: Goldstein offers to pay U of S $25,000 on Oct 3. U of S accepts. Then he doesn't pay. Is he in breach of the agreement? (Note he gets nothing in return) This is a gratuitous promise (or gratuitous undertaking ie. nothing in return). The only way he has to pay is if his offer is a substantial amount, and the university starts to build a new building,(he gives 500,000 and building costs 3,000,000 then he would have to pay) key: substantial amt and U of S commences construction. Law says you must get something in return. Gratuitous promise/ undertaking. Also says it must be done in the present or future, never past The consideration must have a certain value to it. 2 types of Legal Consideration: 1.SufficientValuable (attach a value) 2.Insufficient no value (past) Law must decide whether it is sufficient or insufficient. Must be sufficient to be legal consideration Law states that a promise made in exchange for a promise is sufficient, legal consideration In the above example, there is no legal consideration, not even sufficient. Goldstein promises to pay, U of S promises nothing Most contracts involve the consideration of a promise for a promise If substantial amt is promised- can not withdraw from contract. Also a scholarship is not a contractual agreement, nor is a promise to donate to Telemiracle. Payment of $ for something is always considered valuable consideration
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o o o o o o o Eg: father offers to sell son some land for $1. Son accepts. Son has an enforceable contract. Law is not concerned with accuracy of payments (would not care if $1 is not enough) A promise of natural love + affection in exchange for something is insufficient, means nothing now. $1 is sufficient consideration must be a 2-way street Even though there is no consideration, if one party acts on the strength of a promise (a substantial amt.) It is sufficient Past consideration: where a person is already under a legal obligation to perform a certain act and in furtherance of performing that very act, is promised additional consideration (Eg: bonus) would be past consideration, not enforceable/ binding Promise for promise is legal (valuable) consideration. Eg: Building a $240,000 apartment, want it ready by Dec 1, 2002. In Nov 2001, entered into a contract with a contractor, 1 of the terms was that it be ready Dec 2002. It then looks like it won't be ready, so person offers contractor $20,000 bonus if it's ready. The contractor gets it done on time. The person pays $240,000 for building, does he have to pay the $20,000? No, it's not legally enforceable, since it is past consideration. Areward@ - an offer to the public at large Law is not concerned with adequacy of consideration, but is concerned with sufficiency (signed, sealed, & delivered) Signed sealed and delivered x___. y___. Witness "A"___ AIn witness whereof the parties the parties have here into set their hands + seals this 27th day of October, 1998" Requires a witness, & both parties to place their seals on the document Seal: On a document presumes the existence of the element of consideration Can be almost anything (drop of ink, the word Aseal@) When a person signs his name under a seal, consideration need not be expressed, it is presumed. If you sign under seal it is said that you did so in a very deliberate solemn and formal manner Formal Contract: contract in writing, signed under seal All other contracts fall under a simple contracts
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(5) Lawful Subject Matter:
o In order for a contract to have meaning at law, the subject matter must be lawful 3 Non-lawful subject matter contracts: 1) to commit a crime 2) to commit a civil wrong 3) against public policy ,,He who comes into court - must come with clean hands Cannot be taken to court
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1)To commit a crime: o Suppose you lose $10,000 in poker, write someone an IOU. He can not enforce it, since gambling is illegal in Canada without a license. o Any gambling, wagering contract is illegal o You cannot sell raffle tickets, either. These are Anot in the public good@
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o o o One type of betting contract which each of us is encouraged to enter: Insurance. You are basically betting you will die within a certain time. Any contractual agreement involves a certain amount of risk. The only legal gambling is to sell and buy insurance.
2) To commit a civil wrong: o Lord's Day Act: (Sunday Legislation) Contract for sale of land or an automobile on a Sunday is illegal (malum prohibitumit's only wrong because the law says it is) Duck hunting is illegal on a Sunday as well. 3) Against public policy o a), b) Contracts in obstruction of justice/civil service: (bribery contract) a) eg. Payment to reduce charges if in an automobile accident and your at fault, if you pay the prosecutor to drop the charge this is an example of contracts in obstruction of justice b) eg. Rewards for choosing your business instead of others o c) Promotion of litigation Law does not want people to invest in other people's lawsuits, 2 ways to invest: i) Champerty: pay someone's legal fees for them to sue someone, in return get part of the compensation. This is unlawful. ii) Maintenance: person ,,A doesn't want to proceed in court proceedings. You promise to pay person ,,A to keep up the proceedings, and it wont cost ,,A a thing. ,,A goes threw with it, and demands money from you. ,,A will not get paid Contingencies arrangement is where lawyers will take on a case where the person does not have the money for the legal fees. If the lawyer wins the lawyer will get a percentage of the claim. If the lawyer loses, the lawyer gets nothing. This is legal in Canada (except in matrimony cases in SK) d) Contracts in restraint of marriage -Eg: offer to pay groom $25,000 not to marry bride. $ is not enforceable by law. Groom is out of luck, but this isnt the case if father offers to pay $25,000 to marry his daughter. Then he has to pay. e) immoral contracts A contract whose subject matter is immoral is not enforceable. (That's why prostitutes collect in advance) Person promises to pay for sex, doesn't have to pay after f) Contract in restraint of trade A clause in the contract in general restraint of trade is unlawful as being against public policy. However, a clause in the contract in limited/partial restraint of trade is lawful if it is reasonable to enforce it. -Eg: clause saying you cannot practice your profession anywhere, be it dental, medical, etc. The clause does not make the contract illegal, the rest is completely legal. But the clause itself is illegal. This is because it's against public interest to contract oneself out of a contract. -Eg: clause saying you will not open up a restaurant/practice in the next 3 years within 50 miles of
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Saskatoon. This is enforceable. If the person re-opens his practice before 3 years + within the radius, he will be forced out of his business. Usual clause is wont open restaurant within 25 miles for 5 years. Only enforceable if it is reasonable to enforce (not reasonable) every one has a right to earning a living - by contracting yourself out of that right it is not in the public interest not enforceable Example of unreasonable Senior dentist sells out to another dentist in Nipiwan, after the senior dentist sells, he immediately opens up another dentist practice in Nipiwan. If Nipiwan cannot support two Dentist practices, this could be enforceable.
We skipped law of Torts
We skipped to page 27
November 19, 2003
LAW OF TORTS [Tortus]
Tort [tortus in latin means wrong] -A civil wrong compensated by money damages. Civil law Plaintiff (injured) vs. Defendant (wrong doer) A general area of the law... deals with negligence Deals with wrongs suffered at hands of someone French Word: translation - Wrong-doing What do you do wrong which someone can sue you for? Physical, economic harm and interference with an individuals personal property Purpose is to compensate for damages, not to punish Punishment is or criminal courts, compensation is for civil courts Eg. O.J. not guilty, but was sued for damages later In civil proceedings, don't need to rely on >reasonable doubt=, just 51% certainty -Tortus- wrong doing -Tortous liability In early English law, only received compensation if someone directly did you harm (whether accidentally or intended), based on strict liability. NOW, must have done harm, AND be at fault (do something the law considers wrong) Until recently 50% of tort case involved car crashes Then, switched to Ano fault@ system Can't sue for car crashes anymore. Compensation Board pays you the damages Companies pay into a pot based on income. Employees who are injured cannot sue the company, are instead paid by Workers Compensation.
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Rylands (plaintiff) vs. Fletcher (defendant) case (1852): Strict Liability only person you can hold liable is someone who was a direct resulting of you injury Guy had a large water cistern. someone hit cistern, flood damaged neighbors yard In this case
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Neighbor (Rylands) sued Fletcher (the cistern owner) due to danger of keeping it on his property, knowing the danger. B*Rule as a result: If you store potentially dangerous/ hazardous goods on your property, and it causes damage, you are considered liable whether or not you are at fault (incl animals). Eg. If you have mean dogs, and you have them locked up, but hey get out and hurt some one, you are the one that is responsibale for your animals. o Intentional: Advertant (act done eliberately/ with intent- cause harm to others) o Unintentional: Inadvertant
Two types of TORTS: Intentional and unintentional torts
Intentional TORTS: (physical harm personal injury)
There are 3 things which you can sue for: 1) Personal Harm (physical harm) 2) Economic Harm 3) Harm by interfering with others goods/property o The harm caused must have caused damage. *(Personal injury or Harm)* 1) Assault + Battery o 2 separate torts for personal injury -Assault: Intentionally creating an apprehension or fear of physical contact in another person. *Not physical violence -Must imply immediate danger The person must realistically believe that you are going to harm them Battery: When someone causes unwanted physical contact (actual contact). o Assault doesn't have much compensation o Must actually hurt someone o Damages depend on how bad you're hurt, how long you're hurt, and precedents. o Battery is not just hitting, it can include unwanted needle injection o Sexual assault and battery damages paid are significant o No limit to time period you can sue someone for sexual assault and battery o Actual contact- "least touching of another in anger." *Suppose you're suing someone, and they go bankrupt. Can still sue him, but you won't get money if he declares personal bankruptcy (wipes out all debts that precede bankruptcy). Can't take house, cars, either. If they win the lottery, can't sue for the money. Anything they earn after declaring bankruptcy is theirs to keep. o o Can hit someone in self-defense, then can't be sued Self-defense is only valid when actually defending yourself, and in a reasonable way (Once the danger has passed, cannot hit him or you can be sued) -Can be 1st to strike- but proven. Cannot use excessive force/cont to strike back once danger is passed (ex. stop hitting the person once danger is over).
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o o o o o o o o -Must be no other means of dealing with situation such as safe retreat or calling for assistance Consent forms- meaningless- unless it is an informed consent. You need to be informed about all aspects and consequences of the prodedures Consent must be freely and genuinely given in relation to the act done He who consents cannot claim injury (must be informed) Can use consent as a defense. Ie. If he consents to being hit, he can't sue (eg. Sports) In sports, normal contact is allowed, but not cross-checking, slashing, etc. causing injury. For these you can be sued. Volenti Non Fit Injuria Volens: He who consents (volunteers) cannot claim injury. the voluntary assumption of risk *** Identification of Criminal Act:-CDEX- international database- not retrievable -Fingerprinted, photographed, criminal # this can happen even if you are charged, even if later proven innocent On October 16 of 2005 a new act was introduced call... The Mandatory Testing and Disclosure (Bodily Substance) Act Provides for applications to the courts for applicants to be tested, where the applicant has come in contact with that persons bodily substances and that person refuses to be voluntarily tested. If that person refuses, its $5,000 for each day or part of the day it continues... in repeat offence, $10,000 is the fine.
2)False Imprisonment: -Total restraint of free movement without lawful justification against persons will (ex. kidnapping). o Wrongfully physically restraining another person totally by either actively causing his confinement, or by preventing him from exercising his privilege of leaving without lawful justification o A guy can keep you there if you shoplift, but if it turns out you didnt do it, you can sue him false imprisonment o If a cop arrests you falsely, you can't sue. o When you take away the right of someones free movement o If you see a crime being committed you can do a civil arrest
3) Malicious Prosecution: o Where someone files a false complaint, simply to have another person arrested o You can sue them for doing so
4) Defamation: *(Economic harm)* taking something away from someone or hurting there ability to do something Defamation - hurting someones reputation causing and economic loss (libel written... slander spoken) o When you make a statement that causes unjustified injury to a person's character/reputation *libel -written defamation *slander -spoken defamation -Verbal/ association (associated with something ,,bad) if you associate someone with other
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bad things (ex: me being the same list as the top 20 worst criminals) Defamation be association o Must communicate it to someone other than the person being defamed -If its just between 2 people, then its just insult -Difficulty lies on extent of definition which others see could just be an insult Amount of compensation depends on who views the defamation, how serious it is, etc. -The larger the medium, the greater the damages.
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The sooner you apologize and retract your statement, the less damages o Defenses to defamation: Truth of statement; If it's the truth, no matter how damaging, then it isnt defamation -Taunting Words are true, but written to taunt some one, then defamation can be enforced Privilege; -Absolute deformation; Things said in parliament or legislature are absolutely privileged In court proceedings, under oath, inquest, commission hearing Government inquiries have absolute privilege. But it only applies when you are in the house, or legislative assembly and the house is in session -Qualified; This applies to news papers, reporters. If they report something that is wrong, but they believe it is a fair and honest depiction, then there is qualified privilege. Example: this is what was in the paper Surprise congratulations Joy Bordeleau on your new coming BABY!! The news paper published a apologies 4 weeks later. -The girl was 18 years old, and she was pregnant. She sued the paper, and she won because of the ,,TAUNTING o o o o In all these cases, can lie w/o being sued (except when taunting) Must prove economic harm Can be awarded $ damages, refraction (withdrawal), or apology. Qualified privilege: if it's not the truth, but you honestly believed it was (Eg. Reporting, editorials, reference letters) Two places in Canada where you can say what you want and cannot be sued: 1: parliament and 2: court
5) Injurious Falsehood: o Making untruths about a persons property or business in order to cause them to lose business *(Harm by interfering with others goods/property)* 6) Trespass = interference with land and chattels (personal property): o When you enter upon or remain on someone's property w/o their consent
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o o o o o OR if property owner revokes consent, + person refuses to leave You are entitled to remove a trespasser with as much force as reasonably necessary Farmer: doesn't have to post No trespassing signs Can hold someone in you house, but can't shoot him if hes fleeing, even if he has something of yours. Police in pursuit, easement/ right of way (permission to cross property), Sheriff/ Bailiff (seizure), any to prevent nuisance. -Legal right to enter property.
7) Nuisance: o If you own land you have a right to enjoy it without interference o Can include smoke, noise, or any other Aunwarranted interference@ to your property o Compensation by money AND conjunction (order to return) -Put up with certain 8) Conversion: o Wrongfully taking or withholding someone else=s things o AConverting it@ to your own use o Taking or keeping someone=s possessions o Compensation by $, conjunction o Sometimes lawful to take someone=s things (Eg. Sheriff takes car as payment, take back what=s yours) 9) Inducing Breach of Contract: o Knowing about a contract, + making someone break it 10) APassing Off@: o Misrepresenting that goods, services or businesses are yours, with the intent to deceive the public. o Also: deceiving people with a similar name (eg. Big Mack, Essow); can also be sued
***All 10 torts are done INTENTIONALLY
Unintentional TORTS:
1) Negligence: o Harming someone unintentionally o Carelessness, recklessness o Ineffective product mfg. also at risk o Must have taken all necessary precautions to not be at fault o Intentional/unintentional o In your daily lives you must take reasonable care not to harm others around you o Goes back to the law of Strict Liability o But this law only looked at the direct and deliberate laws... and the law only looked at who was strictly responsible (enunciated in the 1960s) Rylands vs. Fletcher o Anyone storing or housing potentially dangerous or hazardous goods (even animals) is responsible
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o o o regardless of fault for any damagers caused by escape onto others property Rylands reservoir was built correctly but leaked onto Fletchers land and Rylands was held strictly responsible If you have dogs caged, and someone cuts off the lock, you are still responsible for those dogs The law states "You assume the risks!"
parameters on fault: 1932-Donahue vs. Stevenson: ***will be on exam*** Went all the way up to the English House of Lords (highest in Britain) o o Woman gets very sick after finding a snail at bottom of her alcohol bottle (beer manufacture sells beer to retailer, and retailer sells beer to purchaser(buyer) then this man gave the beer to some women She wanted to sue, but friend had given it to her, who had bought it from a store, who had bought it from a manufacturer. There was no contractual relationship between the man and the woman or the woman and anyone else -No privity of contract. (since the beer was given to the lady by the man) Had to be part of contract to sue for a breech A person who is not a party to the contract has no rights or liabilities under the contract Love thy neighbor doctrine: You must take care to avoid acts or omissions which you can reasonably foresee would be likely to affect/ injure your neighbor. Who then, in law is my neighbor? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question (ie is there a foreseeable person that may get hurt) When applied to this case, until this doctrine, manufacturer couldn't be sued -Reasonable contemplation/ foreseeable act. To prove negligence you must show: (1) That person owes you a duty of care [anyone who is your neighbor (who you can reasonably foresee is within the area where you can affect them)] *Is the duty of care owed? -if something is foreseeable it should be within reasonable contemplation (2) What the standard of care is (what the duty entails) required. *If duty of care is owed, what is the standard of care required? Standard of Care: ex: quality control Look to see what other people are doing who are participating in the activity to see what the standard is (3) That it breeches the standard of care (Reasonable Person) *Is there a breech of this standard? (4) Legal Causation: by breaching standard, that the person cause the injuries *Is there legal causation/connection? Did my actions actually cause the injury? There must be a direct causation Chain of causation cannot be a break in the chain
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CASES: o Bolton vs Stone: -Baseball diamond (30 yrs) - never had anyone hit a ball outside parameters of diamond. -1 day- someone hit out & stroke a pedestrian *Pedestrian sued= no case b/c not ,,foreseeable o Yardly: -Man driving on busy street on Motorcycle -Oncoming truck -Pregnant woman -Truck- left turn -Motorcycle hit truck -Motorcycle flew up, in flames & hit driver -Pregnant woman sued truck driver b/c suffer loss of baby when she went into shock from witnessing the accident *Foreseeable victim- therefore awarded damages **must be foreseeable victim** if you are told about this and go into shock and lose your baby, no damages because you didnt witness it 1. Duty of Care: Must take care not to harm persons who you interact with; around. Eg. Driving a car -passengers, other drivers, pedestrians Who is foreseeable for the act you're doing Unless the person is too remote ( in which case you don't owe a duty of care) Boundaries change constantly If you see an accident + get hit, can't sue: too remote
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2. Establish standards of care to the court: o Every activity has a particular standard of care o Driving standards -come from Highway Traffic Act ***REASONABLENESS (key)*** o Reasonable man: Joe Average- what may be reasonable for one may not be reasonable for another. o Decide whether the action met what society expects o Fictitious standard: The more dangerous, the higher the standard. The more experience the person has, the higher the standard. o Reasonableness can be based on industry standards (can be raised/ decreased) -Used common sense to find a balance, common sense, marketplace, legislation. -Must establish what the standard is, a balance between ability to function and safety to others o CASE: Lambert vs Lastoplex: -Explosion- Lambert: injured -Negligent- forewarning in label of can. "CAUTION: Potentially flammable use with extreme care" -Courts compared label with competitors & found Lastoplex negligent b/c label was not as detailed as competitors. ***Case- example of manufacture/ marketing.***
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3. Show that the person breached the standard: o If a person was negligent-not meet standard o You judge if person was negligent. o Measure your wrong against the standard, if it is less than the standard, youre at fault Example is driving your car down the wrong side of the road 4. Show causation: (cause + effect) Was the action directly responsible for the harm? You must be able to make a connection *Proximate Cause: direct + causal link * Novus Actus Interveniens: -An *** intervening act that caused the injury -Law apportions the fault, assigning different portions to different people you wont be responsible for ALL injury other people will be at fault as well Tort Feasor (someone who commits a tort) If someone is injured by someone else and you drive the injured to the hospital and get into an accident which injures that person even more... the injured party cannot just sue the original person who caused the injury b/c that person will claim they did not cause all the injuries. Thin Skull Rule: Due to some defect a person is harmed more. You have no defense to protect yourself if you injure that person more because he has a defect. You take that person as is you take your victim as you find him You are responsible for the damage, no matter how it would have affected the average person. ***To find someone negligent, you must show all 4 of above. o Eg. Letting someone drink too much, gets run over. Go thru all 4 steps, both found guilty, law was apportioned. o "Good Sumaritan Law" (1976) -Emergency Medical Aid Act: -when a person is ill/ injured, unconscious at a scene of an accident, a physician/ medical assistant/ nurse (registered) voluntarily renders emergency assistance OR other personnel rendering emergency assistance at the scene of the accident, if that person is injured further or even dies, the helping parties are not liable unless there is gross negligence (disregard). -Gross negligent is wanton and reckless disregard of the life and safety of another
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"Contributory Negligence": -Negligence of an injured party that contributes to his/her own loss/injury Contributory Negligence Act: judge decides who all is at fault, how responsible each is for it. Sometimes a subsequent act contributes to their injuries - a person who gets sued for negligence claims the damages should be reduced because the damages were not all his fault (ex: youre not wearing your seat belt, you get rear ended.... Youd be partially responsible for your injuries for not wearing your seat belt) [e-mail] o
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o o Mitigation: must mitigate your damages, else court will say other party is not responsible Vicarious Liability An extension in negligence law of liability beyond the original wrong doing Finds situations where liability falls on someone other than original wrongdoer Eg. truck driver, slippery roads crashes into building. Owner of the building will sue his boss. -Eg: If your car is lent out- other driver must have a valid drivers license & being ,,lawful (not using drugs/ alcohol).
3 situations: 1.) Employer-Employee; o If employee does something while on the job+ within the scope of their job, then employer is responsible. o Employee has no $, employer does. 2.) Principal-Agent; o Where someone is acting on behalf of you, at you request o Like contract work o Principal can be vicariously liable 3.) Partners; o A partnership o All partners are vicariously liable if one commits a wrongful act ***Some statutes can also create vicarious liability; eg. Vehicle owner responsible for anyone diving their car. Owner's Liability: o Own any building, land, etc = occupier o Does occupier owe duty of care to person(s) who come onto the property/ there lawfully? [Yes] o Trespasser- lmt. degree of protection. o How much protection a person has- depends on the ature of business- what brought you onto the property. Tort Law: Only remedy available is $!!!
DEFENSES TO NEGLIGENCE:
1) - Fail to prove all 4 elements against you o Res Ipsa Loquiter: (the thing speaks for itself) ie. Where unaware of how injury occurred, but nothing else could have caused it... the defendant must prove they didn't cause the injuries. ***EXAM TYPE QUESTION*** 2) "Volenti not fit injuria@: o Where you voluntarily assume a risk by engaging in some dangerous activity, and other party is negligent, negligence may be ignored.
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3) - Contributory Negligence: o Where you allege that the victim is partly responsible for his own injuries 4) - Statute: o EMS, sidewalks, etc. - must show gross negligence o Limitations there's a time period in which you must sue the person (usually 1-2 years) Eg. Can only sue city within 1 year, defamation within 2 years. Occupier's Liability: Landowner has a responsibility toward people on his/her property The duty you owe a person depends on the reason for their visit Whoever you would reasonably expect on your land ( why, when,...) A duty of care is owed to persons who are lawfully on your land The amount of duty of care depends on the nature of the visit of the person on your property
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3 types of people: i) Invitees: o Highest duty of care b/c they are there for you to make money o Dangers you know or ought to know about HIGHEST o Examine property on a regular basis o A person permitted by the occupier to enter the occupier's premises where the occupier expects a possible advantage by that persons being there@ (business purposes) *Invitee: o Higher standard o Warn invitee of any known dangers, or any that he ought to know about that could be ascertained by reasonable inspection of the premises... dangers the person could have known about by reasonable inspection of their property . o Business visitor ii) Licensees: o Anyone other than an invitee or trespasser, who is on your property with your consent (Eg. Door-to-door salesmen) -must make sure your social guests are warned about dangers you know about *Licensee: o The occupier must warn the visitor of KNOWN potential dangers (standard) o No liability to owner if unknown hazards, even if a reasonable person would have known Social visitor
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iii) Trespasser: LOWEST o Anyone on your land w/o permission (on land unlawfully). o Standard of care; there at own risk, but cannot deliberately harm a trespasser (no traps) o You cannot do something to intentionally cause injury o Can have a guard dog, marked elect. fence- if injured- cannot sue. (these things are not considered a trap). o Attractive nuisance : If something which draws trespassers onto your land (Eg. Trampoline, pool), you owe a greater duty of care. Must take steps to ensure no injury. Usually children are attracted to attractive nuisances.
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o Can remove trespasser- but without excessive force- if excessive force is applied can be liable for damages.
The higher up (i, ii, & iii), the standard rises.
Social Host Liability: Responsible for someone on you property, even after they left your property (ex someone gets drunk on your booze, your property and the person gets in an accident; your responsible). A new statutes as of October 24, 2005... Criminal Enterprise Suppression Act this legislation is intended to curtail the activities of criminal organizations by making an application to the courts ordering their refusal of licenses to carry on their business so that their business must cease operations
November 5, 2003
DISCHARGE OF CONTRACT
Ty covered this area To discharge a contract means to cancel the obligations of a contract, or to make the agreement or contract null/inoperative. 5 ways to discharge: 1) By performance: o If both parties have fulfilled all obligations, contract is discharged by performance o If both parties do what they were supposed to do, the contract ends (discharged) o Tender of Performance: someone refuses to accept other's attempt to perform, he is in breach of contract. o Legal Tender: Bank of CDN Notes, + silver coins to a limit of 10$ *not included; cheques, bank drafts. o If you offer $, but they refuse it, that doesn't relieve you of the obligation to pay. Don't have to keep trying, but they can get it any time they want. 2) By Agreement: o Even where all obligations have not been met, can make an agreement that they don't have to be fulfilled o 2 agreements: i) Waiver - other party can agree to waive your obligations (if a 1-way agreement, must pay $1 to do so) ii) Substitution - parties agree to make new obligations by: a) Accord and satisfaction: party offers a new obligation for the original (Substituting a promise) b) A new contract to replace the old one where theres a new party involved (Eg. Someone agrees to take your mortgage) Lets you off the hook. c) Where the contract provides for its own dissolution: obligations disappear if a certain event occurs
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iii) Provisio clause: Provision (Eg: If something isnt completed by a certain date, it will be nullified.) Condition precedent: -A future/uncertain event which must have occurred before the promisors liability is established Eg. Until conditions are met, obligations don=t arise Condition subsequent: -An uncertain event that brings a promisor's liability to an end if it happens Eg. Obligations are annulled if the event occurs Option to terminate: That in certain situations a party can discharge contract
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3) Impossibility of Performance (Frustration of Contract) o Doctrine of Frustration: The law excuses a party from performance when external causes have made performance impossible or radically different from what was contemplated. Eg. Producer of concert rents concert hall, it burns before concert, so everyone is relieved of obligations -Non Personal Services (engineering, building, etc.): -Entitled to seek damages -Personal Services (musician, actors, etc.): -Non entitled to seek damages. Also if a contractors electricians go on strike, that is out of his hands, and everyone is relieved of obligations Self-induced frustration does not relieve a contract Whenever a contract is frustrated, all obligations stop, no matter what A contract for personal services ahs no liabilities... a contract for non personal services has liabilities unless it is stated otherwise in the contract. 4) By Operation of the Law (Law puts end to contract): o Bankruptcy- a very important legal process -Over 70 thousand bankruptcies in Canada in 2005, and were expecting even more next year -Italian word: bankaruta - to break ones bench o Promise is relieved if bankruptcy is filed o Bankruptcy & Insolvency Act (1898- 1995) -we have this to provide for an orderly distribution of a debtors assets among the creditors -the second objective is to assist the debtor by providing for an honest but unfortunate debtor an opportunity to get a "clean slate" and give him/her the ability to start all over again by having most of his/her debts wiped away -Same bankruptcy act: People always used to fraud & avoid credit checks -Federal Legislation -Deemed insolvent (must be) if under act (debt exceed asset by $1000 AND does not have ability to pay liabilities). -CA(s) within each province- licensed trustees in bankruptcy (acts in best interest of creditors)... they report to the official receiver of their district
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-Each province is its own bankruptcy district with a person called official receiver who report to the superintendent. -Ottawa is the superintendent -CA(s) within each province- licensed trustees in bankruptcy (acts in best interest of creditors)... they report to the official receiver of their district -the trustee does not act on behalf of the debtor... he/she acts on behalf of the creditors -in order to go through bankruptcy, a person must be insolvent -Insolvent means their debts exceed their assests by at least $1000 and they do not have the ability to pay the debts o Methods in which to file for bankruptcy: 1. Voluntary Assignment in Bankruptcy: -From moment of signing of the necessary documents, the person is in a legal position of bankruptcy. -Once filed, the person no longer needs to deal with creditors (unlawful)/ -Trustee handles everything else. -It is an offense for any creditors to harass the debtor -If there is a suspicion that that the debtor favors one creditor over another, you can force that person into bankruptcy (petition into bankruptcy) 2. Petition in Bankruptcy: -Trustee forces bankruptor into bankrupter -Not paying debts -Creditors cannot deal with bankrupt person (against law) -Can go back up to 5 yrs to undo the bankruptcy. o o ONLY HAPPENS WHEN: Voluntary Assignment in Bankruptcy/ Petition for Bankruptcy Discharge of bankruptcy: (Clean slate to start over) -Debtor is seeking -Contractual obligations & debts- wiped out by law -between 3-12 months one can receive a discharge in bankruptcy -Will not discharge maintenance arrears from one spouse to another spouse, fines, debts owing for necessity of life (food, clothing, etc), student loans etc. 3 Purposes of bankruptcy legislation To provide for an orderly distribution for a debters assets among the creditors To provide an unfortunate but honest debtor a discharge in bankruptcy (to give them a clean slate) -The moment a person goes into bankruptcy it acts as chance to get a clean start -Canada is broken into bankruptcy zones have licensed trustees in bankruptcy the trustee can offer two proposal (see below) trustee acts in such a way for the creditors 3 Classes of Creditors: 1. Secured: -Best -Creditor who holds security against assets owed to them, not against you -ex: Bank
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2. Preferred (wage earner up to 3 months): -Rev. Can. Used to be preferred creditor, is now a general creditor -Entitled to 6 months wages -Any employee who owes wages, 3 months wages -ex: Workers Compensation 3. General/Ordinary (wage earner over 3 months)l: -Not secured/ preferred. -almost a waste of time to file a claim... they will get almost nothing ***If $ is owed to Rev. Can. (general creditor), they can go & oppose the Discharge of Bankruptcy. Therefore may get a conditional discharge (1 yr to pay $ owed)- certain amount. - A creditor can appear in court and a conditional discharge in bankruptcy... this puts certain terms like 1 year to pay off the creditor for a certain amount owed Dont want to file for bankruptcy??? (2 Alternatives): 1. Proposal: -Gather all creditors & ask to make a settlement for debt (persons debt doesnt exceed a certain amt. - $50,000?) - if the creditor declines, it makes an immediate petition into bankruptcy (the creditor may get nothing) 2. Commercial Reorganization: -For businesses -Under trustee (trustee puts in proposal) a licensed trustee is very important and the law is very strict on the debtor the debtor must go to a certain amount of meetings with creditors the trustee must comply with strict orders or he/she could be charged with an offense towards bankruptcy
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5) Breach of Contract:
o o o Where one of the parties either renounces the contract (renunciation of contract) or simply fails to perform Does NOT discharge a contract Can occur in two ways: o Rennunciation: Let the other party know ahead of time that contract will not be fulfilled (can be ignored) o Failure to Perform (simple failure to perform): say nothing about the contract, but you dont fill the contract Categorized into 2 types:
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I ) Minor Breach (Warranty): you breach either a non-essential term, or an essential term in a minor way. II ) Major Breach (Condition): breach of any essential (fundamental) term of a contract. o Breached party can elect to discharge a contract in a major term, + sue for damages.
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OR o o Can insist on performance of other person In non-essential term, cannot relieve you of performance, can only sue for damages
Breach can occur by: 1) Expressing Repudiation: Person states he/she will not honour the contract any more 2) Rendering: You see that they cannot fulfill the obligation 3) Failure: Inability to perform *Doctrine of substantial performance: If someone substantially completes contract, you can=t seize breach on minor details. 4) Exemption: State that even if one does not perform, he/she is not liable (a clause) Courts don=t like this trick; tries to aid others by: i) Contra - Preferendum: Interpret it against the person who wrote it ii) Drawing Attention: Have an obligation to draw attention to the exemption clause for the other party.
Remedies For Breach of Contract (For breach, negligence, tort, etc.)
o Ubi Jus IBI Remedium- Where there is a right, there is a remedy. (1) Damages: Money compensation for a wrong or injury sustained. Damages are compensatory and not punitive (punish) depends on situation Largely governed by precedent Before you decide to make a lawsuit you need to decide what your chances of winning are and what your damages are! Damages are the main and in some cases only remedy... they are awarded for compensation! Different types: i) General Damages;
speculative, not specific pain and suffering damages look at precedents future loss of income (due to injury - an estimation) inconvenience Supreme Court put a cap on pain + suffering: $180,000 -Compensatory amount -if a female were to get a 2 inch scar on her face, she will get greater damages then if a man were placed in the same situation -if your child dies due to negligence, it is not worth it to sue because at most you will get the funeral costs covered
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ii) Special Damages; specific, out-of-pocket expenses to victim calculated, can be great medical, home care, lost income -If your glasses break and you have to buy new ones
iii) Punitive Damages; -very rare in Canada, more common in the USA (also Exemplary damages) -to set an example -act as a deterrent for others to commit the same crime -very large amount -More common in USA, and are often a very large amount -where act was so wrong that the person was punished with more money, an example is set paid to victim, even though intended to punish. -ex: Chrysler Corp. a few years ago had a van whos back door would fly open in an accident. They were warned to fix the locks to make them safe. Many people sued Chrysler in a class action lawsuit, and Chrysler paid out Millions upon millions to these families. iv) Nominal Damages; -Hurt feelings damages -You are only awarded $1.00 -You can often win, but it isnt much money -Eg. I call you an SOB in front of the whole class, and you sue me. You will win but only get $1.00
v) Liquidated Damages; -Damages that are agreed upon ahead of time in the contract -Eg: 12 unit * $500/month = $6000 (a contractor will be doing this -It will have to be ready by Sept 1, if not done by then the contractor will have to pay the person $2000/day therefore damage = $20000 b/c it was ready on Sept. 11. -But doesnt have to pay b/c liquidated damages are compensatory NOT punitive. ($6000/3days = $2000/day) -this means all the contractor would have to pay would be $200/day. -reason is because the building could only make $6000 per month or $6000/30 days = $200/day (2) Injunctions: is a court order, restraining or prohibiting a person form doing what he contracted not to do. Court order, ordering someone to stop what they're doing (eg. Trespassing, picketing, practice of dentistry) -What they agreed not to do.
(3) Mandatory Injunctions: must DO something (rather than ceasing doing something) (4) Specific Performance: awarded order for performance, not $ -Court order ordering parties to a contract to carry out the specific terms of the contract.
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-Land or UNIQUE chattel -Available only in the contracts of: 1)Sale of land 2)Unique/ Original Chattel (ex painting , sculpture) (5) Restitution: ordering someone to return an item which has been stolen or converted. (6) Quantum Meruit: -Latin how much is it worth Amount worth contingent on market value (interest act) Have to pay the market driven value Applies to situations where the amount has not been agreed upon -Must agree to pay for something/ dont have to pay.
De Minimas Non Curat Lex: -If something is so very small the law has no remedy. -Only applies to civil law. Interest Act: interest on all overdue accounts is 24% / Annum *** must be on a per annum basis in order to enforce collection on (dont have to pay what you dont agree on provided in the agreement it was expressed in a per annum basis) You only have to pay the legal rate of interest which fluctuates from time to time -2%/ Month// 1.5%/ Month- dont have to pay- unless expressed in per Annum OR 2%/ Month// 24%/ Annum (if interest is not listed in a per annum bases then it is not justified) -Legal rate of interest varies from time to time. -if you have a credit card and you miss a payment, the interest will start from the day of purchase Usurious a criminal offence to charge someone 50% or greater interest rate ***Children- aren't compensated*** If someone dies due to negligence: Survival of Actions: If someone dies, they can still sue or be sued. Can only involve pecuniary (monetary) losses to the estate. CAN sue for punitive damages, but must be under special circumstances Fatal Accidents Act: Family members of dead members can sue the person found negligent Only pecuniary losses once again Cant sue for the loss of a child=s life But, children can sue for loss of their family members
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October 21, 2003(I went to the Tue class instead of Wed due to midterms)
Requirement of Writing as to the Enforceability of a contract
o o o Prior to 1677, no contract had to be in writing Found that many fraudulent claims were being made, as well as fraudulent disclaims British parliament passed a legislation saying which contracts had to be in writing to be enforceable
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o o o If a contract is in writing, has qualifications to be enforceable @ law; contract falls ,,inside law. Contract doesnt agree with law is called ,,outside law. Need not be in writing to enforce law. Some contracts must be in writing
Statute of Frauds (1677): o Canada adopted the statute word-for-word o However, one can now *hide behind* the statute, by the fact that it isn't written o A contract need not be in writing to be enforceable if: -buy an automobile at a dealer o If there is any discrepancies between what was verbally agreed upon and what was written, the written contract takes precedent. o Cannot enforce a verbal contract by law. *Contracts listed in the statute fall inside the statute (intra) Contract not listed fall outside the statute (ultra). Parol Evidence Rule - even though the contract does not have to be in writing, if there is writing, it will take precedence over the verbal - the rule is if youre going to put anything into writing... put it all into writing. - this has been wiped out when referring to contracts between a retailer and a customer... now when there is a verbal warrantee and a written warrantee, you can bring in the evidence of a verbal warrantee to contradict the written warrantee - The verbal warrantee is voided by the consumer protection act
Contracts in the Statute of Frauds: Inside the statute: Must be in writing to be enforceable at law, not in writing, not enforceable (if contract is going to be for more than a year) Outside the statute: Need not be in writing to be enforceable at law (contract to be completed before one year)
(1) "All contracts which are not to be or cannot be completed within one year of its date." (these contracts must be in writing, otherwise outside the statue) Eg: Offered guaranteed work until Nov. 30, 2000 on Oct. 1, 1999 Accepts on Dec. 1, 1999 (contract starts here) Notified of firing on Mar. 1 2000 Does he have an enforceable contract? Yes, but not up to Nov. 30, 2000. Since contract was agreed upon on Oct. 1, 1999. He has right to be paid up to March 31, 2000. *always go back to date the contract was made. This case falls inside the statute and therefore must be in writing!... the employee should take the two months pay because he wont be able to get anymore money Eg. Man and wife agree to separate Feb 1, 1969. -Man agrees to pay his wife $1000/month starting March 1, 1969 for as long as I shall live (in agreement that she does not sue for maintenance). The wife accepts (verbally). Now on October 19, 2005 the husband says enough is enough and refuses to pay. She says shell sue... Does she have an
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enforceable contract? -Yes she has an enforceable contract. It can be completed within one year, since no one can say with certainty that he will live longer then a year. -the Contract is ,,outside the statute because the man could die before 1 year is up. It doesnt have to be in writing to be enforceable by law. - (ALWAYS GO BACK TO THE DATE THE CONTRACT STARTED)
(2) "All contracts for the sale of land (real property) or interest in land"... must be in writing as its inside the statute). *Property: Real property; land or an interest in land "immovable" Personal property; everything else -movables, things, goods, & chattels. o A house is land o Land is the earth, and/or anything attached to the earth (tree, barn, house, buildings, trailer) o Interest in land; anything that flows on the land, within the land, or under the land (water, rocks, minerals, etc.) o In law we dont use civic addresses, we use legal description (for an address), Lot, Block, Plan o If its rural land (farms), its referred to as section, township, range, meridian o Land Registration District; In Saskatchewan, takes in a city and a circumference of about 60 miles. Province is divided into these districts... you can find an office within any one of these districts called Public Offices where anyone is allowed to see anyones land information for $5.00 o Fee simple is the most common ownership of land... no one can own land outright or absolutely o A historical search of Title shows you who originally owns your parcel of land... if you go back far enough, the original owner of all land in Saskatchewan was the Queen o Personal property - Saskatchewan is one district o For every parcel of land, there is a certificate of ownership (a document that evidences the ownership of land) o If nothing on the back, it is a clear title (no mortgages, leans, etc.) o Personal Property doesn't have certificates of title o Certificate of Title: A document that evidence ownership of land. o Civic Address: 120 Delaronde Road -Legal Address: Lot6, Block 45, Plan G344 o With farmland, legal description is Section - Township - Range - Meridian. o Office of public record; available to anyone (can find out lot # of property) o A rock is real property -Eg: Buying a house, pay $5000 down payment, given a receipt. Is there a contract? NO. Receipt is not a contract. o Doctrine of part performance: is an exception to the statute where in a verbal contract for the sale of land, the buyer performs certain acts and those certain acts can be related only to the purchase of the land and nothing else, he may rely on the doctrine to enforce the verbal contract. -Eg: Farmer agreed to sell his land to another farmer. In anticipation of ownership, purchaser asked to clear trees and the seller agreed. The seller changed his mind, and said the deal is off. Buyer sued him due to the doctrine and was successful. (The buyer did certain acts to prove he was buying land (clearing the trees)) -Eg: In BC there was a orchard sold to a buyer. The buyer was to get the harvest of the fruit, so he got a bunch of boxes made for the fruit. The owner then changed his mind, and didnt
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want to sell the land. The buyer sued, but was not successful. You have to physically go onto the land and do something. o o o o o o Of & in- an estates in fee simple- no person can own land ,,absolutely. We use Tarrens land reg. System (guarantee title system) -Section Township Range Meridian (STRM)- Legal description of farm. Urban- Lot Block Plan Every parcel of land (if you look back to the earliest of histories) would go back to ,,Her majesty the Queen in right of the province of Saskatchewan; the crown has only granted the land. ExpropriationThe crown can take back land at any time they want (City, Province, Federal, Counties etc)... which is why the city can build in any farmers field at anytime Fee simple: -No one can own land absolutely -Highest form of owning land is ,,fee simple (they almost own land on there own) o Life Estate: -If a man leaves land to his wife after he dies, and then he wants his sons to have it, she cant sell it or ruin the land, but she can use it. -Owns as long as she lives. -Cannot sell/ ruin land. -Like tenant. H----W----A/B Absolutely [Will]--- Wife-Life
(3) All contracts wherein an executor/administrator of an estate agrees to be personally liable for the debt of the estate: o Estate: the assets of a deceased person o Executor/Administrator: Carries out instructions in a will, or, if no will, carries out instructions where law imposes a will. o Job is to: determine all assets of the estate, gather all assets, pay debts, then distribute estate in accordance with a will or the law. (if the assets are less then the debts, then they dont have to pay out the debts to there full value) o Does not have to pay debts out of his/her own pocket, unless agreed to do so. This agreement would have to be in writing. 1) Determine all assets of deceased. 2) Pay off all debts of estate. 3) Divide up leftovers. (4) All contracts in promotion of marriage: o o Enforceable if in writing. Father said to prospected groom I will pay you $2500 to marry my daughter. -the groom marries the daughter, and then the groom didnt get his money. He tried to sue, but was not successful since it wasnt in writing.
(5) All contracts wherein one person agrees to be responsible for the debt or default of another person: (AKA Contract of Guaranty) o Must be in writing as it falls inside the statute
-Eg: if you say to a Bank to lend him the $, and if he (primary debtor) does not pay you
38 then I will (secondary debtor). This example falls inside the statute. This is a Contract of Guarantee. -Eg: if you say to a Bank to lend him the $, and I will pay you then it is not a contract of guarantee. It is a contract of indemnity and falls outside statute.
o o o o o If he does not pay the bank, than you can sue him for what you have lost (but only after youve paid off the balance of the loan outstanding)... you need to be able to show damages in order to sue If you dont want to be a guarantor, say so up front (advise). Always understand what the guarantee is all about "never a lender or boworrer be" William Shakespeare A guarantee is voided on change of terms of the contract, unless unilaterally agreed upon by bank. -Eg: -You guarantee a loan to a friend for $50000. -The payments are $500 a month -Your friend pays it down to $36000. -Then the friend takes out more money to take it back up to $50000. -You will be responsible for the $50000 unless it is other wised stated in the contract (ie guarantee on a lower amount than the principle).
(6) Contract of the sale of Goods "Sale of Goods Act" A contract for the sale of goods (personal property) of the value of $50 or upwards shall not be enforceable by court action, unless the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract is made, and signed by the party to be charged or his agent in that behalf. i. Must accept and receive parts (deposit or signed contract) of goods for contract to be enforceable
March 9, 2004
Contracts for the sale of Goods: o A contract for the sale of goods is one in which the seller transfers or agrees to transfer the ownership (title, ownership) in goods to a buyer for a money consideration called the price. Must sell the goods for money, otherwise this doesnt matter. o Any lease (ex apartment) for under 3 years does not need to be in writing Doctrine of Part performance is an exception contract of the sale of land must be in writing. Ex. A farmer agreed to sell land to another farmer. Buyer wanted to clear the land for cultivation and seller agreed. Later the seller did not want to sell the land. The buyer later sued the seller for breaching the doctrine of part performance. Very narrow region of law (recall the farmer with ordering the boxes for harvesting apples) o Ownership equals the risk of loss o Obligation to the seller to transfer title/ownership the moment the contract is made or future time (future time agreement for sale). o Possession (you can have possession of something that you dont own) -Eg: Seller accepts $300 down payment for car on Monday and says he will pay the rest on Saturday. The car is vandalized on Friday. Who suffers the loss? BUYER
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Statute: Sale of Goods Act (provincial) The first thing you do is search for the nature of the goods... are they specific (identifiable, tangible) or unascertained (not identifiable, not tangible)? o Transfers; ownership passes from seller to buyer the moment the contract is made/Sale -In a sale, when a contract is made, buyer bears risk of loss. o Agrees to transfer; ownership passes at some future date Agreement for Sale -In an agreement for sale, when a contract is made, seller bears risk of loss. ***Title/ Possession*** o Consideration must be $ for it to be a contract for the sale of goods. o $ to rent something transfers possession, not ownership. NOT a contract for the sale of goods. Sales for personal property are not enforceable by court action, unless: 1) Unless the buyer shall accept part of the goods so sold and actually receive the same OR 2) Part payment is made OR 3) Some note or memorandum gives evidence of the contract and is signed by the party to be charged (person trying to get out of it). How does the Law distinguish between a Sale and an agreement for sale? o Sale of Goods Act: must look to the nature of the goods being sold o Law ; look to the nature of the goods that term the subject matter of the contract 2 Types of Goods: 1) Specific: Goods that are identifiable (tangible) 2) Unascertained: Not identifiable (intangible) o ex) 10 chairs for sale unascertained o 10 Jersey cows specific o herd of cows unascertained o a pile of coal unascertained o a car you ask to have been built - unascertained o specific can mentally put your finger on and say these are the goods Anything which is to be grown or produced is unascertained Where there is a contract for sale of unascertained goods, no title in the goods is transferred from seller to buyer. Ownership does not pass unless and until the goods that are ascertained become specific, and within the contract Sale of unascertained goods = Agreement for Sale b/c transfer of ownership hasnt occurred. Possession does not always equal ownership Where there is a contract of a sale of specific goods, the title in them is transferred from the seller to the buyer when the parties in the contract decide it is to be transferred to the buyer. where there is a contract for the sale of specific goods, the title in them is transferred to the buyer at the time the parties to the contract intend it to be transferred. NEVER CONFUSE OWNERSHIP WITH POSSESSION... ownership is what counts
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If the contract fails to show intention of parties for transfer of ownership (ie no intention date for it to be transferred):
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*RULE 1: Where there's a contract for the sale of specific goods in a deliverable state, the title (ownership) in the goods passes from the seller to the buyer the moment the contract is made, and it is immaterial (it doesnt matter) whether the time of payment or time of possession or both be postponed. *Eg: Buy trailer, haven't moved in. It gets wrecked. Buyer is responsible for loss incurred, as he owns it. -if you go to buy a used car/trailer when you ask when you can move in? you should make it as part of your agreement *RULE 2: Where there's a contract for the sale of specific goods and the seller is bound (obligated) to do something to the goods, for the purpose of putting them in a deliverable state, the title does not pass until that thing be done and the buyer have notice thereof. Eg: in the trailer example; if in the deal, the owner had to fix the broken window (the window was broke when deal was made) and didnt fix it, and let the buyer know, then the seller would still have the responsible for loss incurred. *RULE 3: Where there's a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test, count or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the title does not pass until that act or thing be done, and the buyer have notice thereof. *There are other rules. A sale by auction is complete with the fall of a hammer or other customary manor... before this time a bidder may withdraw their bid. Possession (sales of good act): o In a contract for sale of goods, possession takes place when the parties by contract intend it to take place (look at the contract) o If the contract does not state when possession transfers, payment of the price in full is concurrent with possession. o The place of delivery of possession will take place when intended by the parties o If contract does not state where, it will take place at sellers place of business
Security Agreements Specialty Contracts: (Sale of goods contracts) (1) Conditional sales contract. (2) Chattel mortgage one in which the seller gives up title and keeps possession o S---B---I(1)---I(2) Lien agreement: this means you get possession only (seller keeps the ownership) - This is like someone going to the bay and buying a tv on a payment plan - In law all youre getting is possession... you dont get legal ownership until youve paid for the equipment 2 types: i) Conditional Sales Contract Where buyer goes to seller, seller gives up possession, and retains security (ownership) until the
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conditions of the contract have been met... the buyer has completed the contract through full payment CLien agreement [possessory right] -A security agreement must clearly reserve ownership for the seller. Otherwise title is considered to pass from seller to buyer the moment the contract is made. *Personal Property Security Act: (P.P.S.A.) o underlying principle to the sale of personal property o Unpaid seller always has the right to repossess his goods as long as it's in the possession of the original buyer and if the agreement is in arrears or default. o To be able to repossess from an innocent buyer must register agreement at the P.P.S.A. (Regina) prior to the first sale to an innocent buyer taking place (ex must register the car when the original sale took place). o Innocent buyer: -Bona Fide (in good faith): Person who buys in good faith- without any knowledge of any defect. No knowledge of any defect in the seller's right to sell him the goods. If the seller failed to register, or failed to register in time, has no right to repossess. ***Nemo Dat Quod Non Habet = Cannot Give What No Have (dont forget) ***Caveat Emptor = Buyer beware Second type ii) Chattel Mortgage (mort death gage pledge) Where seller gives up title to the Bank as security (collateral) but keeps possession, in exchange for a loan, etc. until full repayment is made. (= chattel mortgage) Limitation of Civil Rights Act: Applies to both person and real property Can sue if not paid for services, given goods, be given goods paid for Limits: If there is a security agreement unpaid seller cannot sue for $, is limited to repossession of the goods sold. -Also limits the right of unpaid mortgage co. to foreclosure. (they can not sue you) -Provide the mortgage $ is used to purchase mortgage property. Only protects homeowner if he uses the mortgage $ to buy a new house. If you refinance (new mortgage) the $ is used to pay off mortgage, not to buy house. Mortgage money borrowed has to be used to purchase property not something else.
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*Exception: unpaid seller can sue buyer if he can show that Limitation of Civil Rights Act is unconsciable Quit Claims Agreement Statutes that effect personal property Consumer protection act -here to protect us when we buy stuff from a retailer or second hand store -It states that the goods must be in acceptable quality (type of product, rice you pay, and the warranty) -Salesmen cannot mislead the product that they are selling -if its a corporation youre dealing with, for a first offence, the fine would be not more than $100,000... second $500,000
42 -you have rights past the warrantee because the law states the "acceptable quality"... for example if you spend lots of money on something but it only has a years worth of warrantee, you can take that company to court based on how much you paid. Direct sellers act -applies to door to door sales person -ten day cooling off period (you have ten days to cancel your purchase even if you have paid for it already) Drugs controlled substances act -Deals with the control of harmful products that could cause injury or illness if improperly used Hazardous products act -concerned with hazardous products, and regulates the sale of products of an extreme nature, packaging, warnings, products under pressure, corrosive substances (ex acid), flammable products The Motor Vehicle safety act (federally) -Sets safety standards for motor vehicles Aircraft safety act -Sets safety standards for aircraft Competition Act -To prohibit conspiracies and combinations that lesson competition (ex fixed prices
March 23, 2004
WILLS + ESTATES
If there is no proof of death, must make an application to the court of presumption of death A person is worth must most at time of death. This is either due to insurance or someone else=s negligence (for which can sue)
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Statutes Affecting this area: i) Wills Act ii) Intestate Succession Act iii) Survivorship Act iv) Dependants Relief Act v) Health Care Directives and Substitute Health Care Decision Maker's Act *All provincial statutes
*Will: a testamentary document that provides for the administration distribution and direction of one's
estate upon death. To make up a will you must be: Must be 18 or older to and Must be compos mentis (sound mind) (understand what you are doing) -Any one who is married or in a spousal relation ship or in the military in active duty and is under the age of 18 they can still make a valid will -Marriage or divorced voids a will (if you have a will made up and the get married or divorced then the will you have made is no longer good anymore) -breakup or entering a spousal relationship will void a will -a will made up on contemplation of marriage will survive marriage (ex of 83 year old man getting married) - prenuptial agreement **A will is a meaningless document until the person dies **A will speaks from death Can have many successive wills, latest one is the meaningful one ie. This is my last will + testament, voids all others before Always put on a date If a single person makes out a will, then he gets married, marriage revokes the will, unless the will was made in contemplation of the marriage. If so, must put clause in it stating that on that particular day, marriage is being contemplated.
Estate: the sum total of all ones assets.
Aggregate Estate@: value of the estate before deductions of debt Gross estate The value of all assets of the estate before deduction and debt Aggregate Net Estate@: What it is worth after deducting debts No Estate tax after one dies After a person dies, cannot tax his/her estate Testate: a person who dies leaving a valid will is said to die intestate Testator: male person who makes up will Testatrix: female person who makes up will Intestate: a person who dies leaving no will or has an invalid will. Executor(trix , tors 2+ males, trices 2+ females): chosen male who is left to administer the estate. Executrix (Executrices): chosen female. (this is two or more chose females) (In a combination of both men + women, use male form) Administrator (Administatrix): carries out directions according to law (if person dies intestate) Administrator with will annexed: someone who comes forth to administer (to fill in)
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1st right to be administrator: surviving spouse 2nd right to be administrator: closest blood relative codicil: -an addition to a will (p.s) -can add to the bottom of a will. beneficiary: someone who receives a gift under a will -legacy = personal property -devise = real property Letter of Probate and letters of administration = allows anyone to step forward and challenge the validity of the will Power of Attorney = see pg 43 Law is uniform thru CDN + U.S. Wills will be recognized anywhere 2 Requirements to make a valid will: 1) Must be 18 years or older 2) Must be compus mentis (of disposing [full] mind) at time of signing, must understand the nature + quality of what you're doing even a person with senility/alzheimers can sign a will if signed in a >lucid interval= (in which had a clear mind) witness can attach a statement stating that the person was compus mentis at the time (usually a doctor) Probate: executor makes an application for letters probate, financial statements of all assets to prove The validity of a will. executor cannot administer estate until he/she receives a >grant of letters probate= if died intestate, must get a >grant of letters of administration= *person questioning the validity of a will files a caveat freezes all assets until estate executor can prove it valid. *Under Wills Act, 2 types of valid wills: 1)Holograph Will: one which is wholly (fully) in the handwriting of the testator, + signed by him/her, and must be dated. Holograph will be handwritten Cannot be a witness must be wholly in the handwriting of the testor Ex) person bleed to death in a motel. Before dying he made out a will on the motels stationary. Did not hold up in court b/c the motels name and address was at the top of the page. 2)Formal Will: must be written (any form(can be typed)), signed by testator OR by some other person under his direction (al least 2 witnesses). The witnesses then sign the document. All 3 must be present at all times -If testator is unable for whatever reason, to sign his/her name, someone else may do so under his/her direction and in his/her presence -Anyone at law can be a witness
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-A witness/spouse of a witness cannot be a beneficiary to a will, unless he/she can prove He/she did unduly influence the testator -Has 6 months after grant of letters probate to prove they had no unduly influence *Word >remainder= in a will = land only, not $ or anything else. Steps in writing a will: 1)This is my last will, made (date). 2) name executor ( 2, in case one does not want to be) 3) set out power of executor (can give general (uncontrolled) discretion in administrating estate, or can limit power(can make directions of what to do, or invest in)) 4) Name guardian of children named in will 5) Make burial requests if no requests, executor decides where, how to bury -if no request, then the executor can decide. 6) Distribution Clause: directs the executor to divide the estate (who gets what) In most cases, will is carried out to person's wishes, with certain exceptions (reasonability) -the court will always carry out the directions of the will with certain exceptions (as long as compus mentis) -you cannot inherit until you are 18 years old - Letters of probate the grant of the court to probe the estate. -maintenance and an education (escheat check???) -law looks upon a persons will with great reverence Eg. Husband + wife die same time with no children (both intestate) H=s estate: $150,000 W=s estate: $10,000 * survivorship act: -**law says that where 2 or more people die at the same time, the property of each person is to be disposed of as if each person had survived the other -What he had goes to his parents, and vice-versa. -When it is uncertain whether they died at the same time, they are assumed to have died at the same time -**Where they die within 5 days, they are presumed to have died at the same time
*Intestate Succession Act: Everything is a gross estate Net estate is the estate after deductions of expenses The real estate is the net estate A) If person dies intestate, survived by a spouse, + no children, spouse inherits everything B) If dies intestate with a wife + 1 child, widow is entitled to the first $100,000 of net estate + of rest of residue The child cannot inherit until he/she reaches the age of 18. Parent can specify age other than 18 yrs, old. Can also specify purpose is for education + living expenses C) If dies intestate with spouse + 2 or more children, widow gets first $100,000 + 1/3 of rest of residue Children get 2/3 of rest of residue. D) If an intestate dies with no spouse or children, then estate is divided equally between father + mother. If one
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of the parents is dead, it goes to the other. -Where intestate dies leaving no widow, no children, no father or mother, estate is to be divide equally between brothers + sisters -If any brother or sister is dead, children (issue) of that brother/sister will inherit the brother/sister's share of assets, divided equally. -If no brothers/sisters as well, then estate is divided equally among next of kin of equal degree of consanguinity (equally among closest blood relatives) *to determine who is closest, calculate # of relations removed (count upwards to nearest common ancestor, + downwards to the relative) [Relatives Removed] (plot the family tree in relation to relatives) -If no relatives, estate goes to govt. in trust, to see if anyone makes a claim on it. (the estate escheats the crown) -Descendants + relatives of intestate conceived before his/her death, but born after his/her death, shall inherit as if they had been born in his lifetime, + had survived him. -if the spouse of a testate has walked out and is in another spousal relationship, that spouse will have no part in the will -If a female person dies intestate, an illegitimate child can claim as if they were legitimate -If a male person dies intestate, an illegitimate child can claim as well, if; i) father acknowledged him/her as his child ii) at time of birth, the intestate was living with the mother as a husband, + had accepted the child. *Dependant's Relief Act: -Dependants: -a surviving spouse -a child under 18 years old -any child over 18 who is disabled, unable to earn a living or dependent for any other reason. -Under this act, a dependent (of intestate or testate) can go to court + ask for a greater share of the estate. -Court decides based on 3 words, "what is fair, just and equitable." *Health Care Directives + Substitute Health Care Decision-makers Act: (just remember: Health Directives Act) -allows you to write your own directives on health care -health care directives: give your directives on health care treatment, comes into effect when unable to make your own health care decisions. 2 kinds: 1) gives specific directions to treatment providers as to the treatments you are able to send for or refuse should you one day be unable to make health care decisions on your own. 2) where you name a proxy (another person) to make health care decisions for you. -Can be a combination of both these types -Both come into effect if you're unable to make decisions -Any person >16 years old can write a directive -If do not write health care directive, decisions can be made by nearest adult relative, or treatment provider -Can be hand-written, typed, MUST be signed, dated + clear.
Family Tree
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- If it is not specific enough it can be ignored -A directive can be cancelled or changed at anytime. *Power of Attorney@: -A document given by a grantor to a grantee, authorizing him to act on all matters on behalf of the grantor. -Only good as long as grantor doesnt cancel it or die -If grantor dies, the will takes over. Se villi Ci Demgo A Tous En Busses Enero Nojo Dem Es Trux Summit Cos En Summit Dux --meaningless Examples of Exam Questions:
5) (1) Brown by letter offered to sell his land to Stone for $300,000 Cash. Stone replied that he could not pay that much cash but was willing to pay $275,000 on terms. Nothing further happened until Stone wired Brown. "I would like to know if you still want to sell your land as I have $300,000 cash now." The wire was answered immediately, Brown wired "I will sell you the land. offer accepted" Nothing of importance happened until Brown informed Stone that the offer to sell the land was revoked. Was there a contract? Explain No there is not a contract because in order for a contract to be present the law requires 5 elements. 1) Mutual agreement which means there must be an offer and an acceptance. Stone gave a counter offer of $275,000 and his counter offer voids the original offer. The second wire Stone gave was a simple inquiry. Browns acceptance was unclear as one would not know if he was replying to the original offer of $275,000 or the inquiry. (2) S.N. falls seriously ill and while in hospital is regularly visited by his minister. SN promises his minister that if he recovers from his illness he will contribute $100,000 to the Building Fund and a new chapel. SN recovers but refuses to fulfill his promise. The trustees of the Building Fun who had begun construction as a result of the promise of SN decide to sue. State the results and reasons.
48 SN does not have to give the money because he is not given anything in return for the donation. If the church were to promise that theyd dedicate the New Building in his honor, then he would by law have to give the donation. Since SN is not getting any consideration for the $100,000 he is not required by law to fulfill his promise. $100,000 is not a substantial amount because we do not know the full cost of the building. Or SN will be held legally liable to pay the money. This is a gratuitous offer which does not need to fulfilled, however if it was of substantial amount, like in this case, SN must pay back the money. (3) ML appliances is having its annual January sale late on a Saturday afternoon. H buys a new TV set displayed on the floor and pays for it by a cheque post dated 5 days later. The set is to be delivered on Monday. Risk of loss is not discussed. On Sunday burglars break into the sellers place of business and steal the TV set. H stops payment on the cheque. ML sues H for the price of the set. State the result with reasons. The facts of this case are governed by the Sales of Goods Act Rule one. The transfer of ownership occurred on Saturday and therefore the buyer would be able to sue for the money. 1. Explain the purpose of Bankruptcy Legislation To repay the creditors in the events of a bankruptcy using the debtors assets. Also to provide for an honest or unfortunate debtor a second chance 2. Explain liquidated damages and when will they not be awarded Damages that are agreed upon in a contract. They will not be awarded if they are punative. 3. What is an administrative tribunal and cite two examples A body created by a specific statute to uphold that statute - highway traffic board, labor relations board 4. Explain the application of "Nemo Dat Quod Non Habet" It means you cannot give what you do not have. 5. Why is ignorance of the law NO EXCUSE?
49 It is no excuse because the legal system will not accept that excuse. The whole system couldnt function if everyone could simply plead "I did not know" True or False 1. The Court of Appeal is the highest court in Canada F
2. The law of agency and partnership are related in terms of the operation of a partnership T 3. All contracts are contracts of uberrema fidei F
4. Directors of a corporation can hide behind the corporate shield even when the corporation committees a criminal act. F 5. An executor of an estate is liable for all debts owed by the estate F
Specifics of the Test!!!!
Written in the education building gym... it is a 2 hour exam from 7-9 PM All of your answers should be in pen In the upper right hand corner of the exam questions you will see a line. Under the line you will see the words please print your name and hand it in. You will only be tested on what was discussed in class... you are responsible for any Latin words discussed in class. The paper is divided amongst problem, essay, and T & F... in the T & F, the wrong is subtracted from the right.