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MCS7 - MCS*3040 Business and Consumer Law CHAPTER 7 TERMS...

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MCS*3040- Business and Consumer Law CHAPTER 7- TERMS OF A CONTRACT The content of a contract - the content of a contract are it’s terms - terms can be express or implied Terms - can be express or implied Express Terms Express term: a provision of a contract that states a promise explicitly - makes explicitly one party’s promise to another’s - important that essential terms of contract be expressed so that each part knows its obligations and obligations of the other side - important to not make assumptions when negotiating about any aspect of the transaction; only terms – not assumptions have legal weight Judicial interpretation of express terms - ambiguity in language will be constructed against that party in favor of the other - in cases where language so ambiguous such that contract cannot be understood, the contract will fail for uncertainty and none of the promises contained will be enforceable - rules of construction predict our court will interpret any given contract rules of construction: guiding principles for interpreting or ‘ constructing the terms of a contract Implied Terms implied terms: a provision that is not expressly included in a contact but that is necessary to give effect to the parties’ intention - in sections that are not covered in the contract ( implied terms) , the plaintiff carries the burden of proof; they will lose unless she can demonstrate that the term exists based on the balance of probabilities Business Efficacy - business efficacy is a doctrine of business that entitles judge to imply terms necessary to make the contract workable CASE ( 151): Gateway Realty Ltd. V. Arton Holdings Ltd. (1991) , 106 N.S.R. (2d) 180 (S.C), aff’d (1992), 112 N.S.R. (2d) 180 (C.A) Factual background: - gateway owned mall, zellers was anchor tenant - lease permitted zellers to occupy permisis, leave vacant, or assign to third party without obligation to secure consent of landlord
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- Gateway approached by arton,( competitor), arton agreed to take assignment of zellers lease with gateway - Pursuant contract between gateway and arton, companies agreed to use their best efforts to get a tenant for the space formerly occupied by zellers - Arton rejected app prospective tenants - Gateway sued , alleged that arton was in breach of contract for declining prospective tenants The legal question: - is there an implied obligation of good faith on arton’s part to take reasonable steps to sublet the premises ?
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