BSEN 395 - Detalles

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The refusal to perform an agreement or promise

REPUDIATION

Not bound by contract

RATIFICATION

Intended to prevent perjury and fraud with respect to leases and agreement concerning LAND - eventually each province introduces the sale of goods act

Statue of Fraud

A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. ... (4) If under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale.

Sale of Goods Act

Memorandum must be in writing allowing one to answer for the debt fault or tort

The guarantee

The entity owing money to the creditor

Principal Debtor

The entity owed money

Creditor

One who promises to pay the debt of the principal debtor

Guarantor

An equitable remedy allowing the courts to enforce an unwritten contract involving land - court can recognize and enforce an oral contract

Part Performance

1.) actions must relate to the contracts of the land 2.) the party partly performing must show that fraud and hardship is being made 3.) evidence of a verbal agreement is required 4.) the agreement must relate to an interest of the land

Part Performance principles

This is a rule which prevents a party from introducing evidence that would add to or contradict terms of the contract - refers to the admissibility of written or oral evidence - parol means oral evidence

Parol evidence rule

1.) Condition precedent: a condition that must be satisfied before a contract can come into effect 2.) Implied Terms: Implied terms are words or provisions that a court assumes were intended to be included in a contract. This means that the terms aren't expressly stated in the contract. 3.) Collateral Agreement: separate agreements made by parties to have some effect on the initial contract but not relied upon has its own consideration

When does PER not apply

1.) mistake: parties are mistaken as too some essential terms in the agreeement 2.) Mistake of Law 3.) Mistake of Fact

What renders a contract unenforceable

- a defence which may allow illiterate or infirm persons to avoid liability on a written agreement if they can establish they were not aware of the true nature of the document and were not careless in execution

Non Est Factum

Mistake by one party

Unilateral Mistake

Mistake by both parties

Mutual Mistake

1.) Rectification: the correction of the mistake in an agreement that would have rendered the agreement impossible to perform - purpose is to save the contract

REMEDIES FOR MISTAKE

Statement or conduct which induces another to enter a contract (can be innocent or fraudulent) - misrepresented party must nullify all benefits to rescind contract

Misrepresentation

Cancelling of the contract

Rescission

Innocent misrepresentation: honestly believe a material fact to be true but it is not Fraudulent misrepresentation: intentionally deceiving another contract of good faith Negligent misrepresentation: recklessness - contract can be void due to mistake of fact

4 types of misrepresentation

- a state of affairs whereby a person is so influenced by another that the persons judgement is not his or her own - undue influence must be established before a contracting party can avoid an agreement - special relationships or else must be proven

Undue Influence

A contract cannot confer rights or impose obligations upon any person who is not a party to the contract.

Privity

1.) Interests running with the land 2.) Assignment: transfer or rights to someone else 3.) Novation: substituting an old party for a new party which means the old party is no longer bound to the contract 4.) Sealed Promise

Exceptions to Privity

1.) Novation - transfer of right AND OBLIGATIONS 2.) assingment - transfer of some rights 3.) statutory assignment: an assignment of rights then an assignee may enforce if certain conditions are met by the assignment 4.) Vicarious Performance: involves two or more contracts - the first contract is the contract between the parties in which the contractor agrees to perform certain works or service es - the contractor then enters a second contract which may be a contract to have the actual work done 5.) Assignment by law

Transferring rights is done through..

To tender a contract means to present to another person or a company an offer of money for a service. - promise is made as a method of payment

Tender

When a contract forms, a party must perform all obligations to meet contractual obligations

Performance

- the failure to perform a contract with accordance to its terms

Breach of contract

Discharge of a contract occurs when the main obligations of a contract end. The ending of this contract entails a termination of a contractual relationship. Yet parties may terminate a contract even when they do not fulfill to the end the primary obligations required by a contract.

Discharge of contract

- this is a contract which is impossible to perform due to unforeseen or unexpected circumstances where no party is at fault

Frustration of Contract

Express terms are terms that have been specifically mentioned and agreed by both parties at the time the contract is made. They can either be oral or in writing.

Express term

Condition which alters the rights and duties of the parties to a contract or may terminate the contract

Condition subsequent

Major unforeseen event which prevents the performance Act of God is a type of force majeure

Force Majeure

Dismissal of an employee where the inability to perform is not self induced but due to frustrating factors

Non culpable dismissal

A condition which must be satisfied before a contract can come into place

Condition precedent

1.) Waver: each party agrees to abandon the right to insist on performance; parties can end the contract before full performance 2.) Novation: change of terms or parties involves 3.) Material Alteration of terms: the substantial change of terms in making a new agreement; minor alterations have no effect 4.) Substitute agreement: if the parties change one contract for another

Ways of Discharging a contract

Performance refused on a contract

Breach

Any refusal to perform the contract BEFORE the date of performance - if the party substantially performs, they can claim money for what has been done - refusal to perform creates new rights for the injured party where damages can be claimed - courts can either grant compensation or order performance by the breaching party - excuses Both the guilty party and the injured from performing the contract

Anticipatory Repudiation

This is a direct refusal to perform a contract

Express Repudiation

Based on the conduct of the party - if the breaching party performs, injured party may not avoid the contract unless repudiation goes the root of the contract

Implied Repudiaton

Where a party that has committed a breach has largely performed, so there is a deduction in price or damages

Doctrine of substantial performance

Breach of contract which goes to the root of the agreement - the injured party may avoid continuing to perform on the contract even if the contract requires continued performance

Fundamental Breach

Allows a party to avoid liability for non performance

Exemption Clause

Injured party can claim damages however there is no revocation of the contract

Warranty (what can the injured party do)?

1.) Restituto integram: return the party to their original position injured party can sue for compensation but loss and injury must be proven 2.) monetary damages 3.) Quantum Meruit:Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected.

Remedies to a contract

1.) General Damages: intend to place the injured party in the position they would have been in had the contract been fulfilled 2.) Special Damages: compensation in addition to general damages for cases that do not naturally flow from a breach 3.) Punitive Damages: further damages to punish the wrong doer 4.) Aggravated Damages: A monetary remedy designed to compensate for the humiliation, distress, misery, or embarrassment resulting from the tortfeasor's vicious, malicious, or shocking conduct.

Types of Damages

Any damage caused by breach of contract is recoverable if it is reasonably forceable

Reasonable foreseeability (recoverable)

- mitigate means to reduce one's losses - when a breach of contract occurs, injured party must do all that they can do reduce their losses, then they can claim damages from the breaching party after mitigating losses

Duty to mitigate

Estimate of monetary damage which would flow from a breach of contract

Liquidated Damages

Where the court requires the breaching party to carry out contractual obligations - injured party must prove 1.) they were willing to complete the contract 2.) the breaching party refused to perform their obligation SP is not awarded for employment contracts and contracts for personal services

Specific Performance

Court remedy for a party to refrain from doing something eg: promise not to work for a specific employer often negative in nature

Injunctions

A person on whose behalf an agent acts

Principal

A person appointed to act in behalf of the principal

Agent

Express agency means an actual agency created by written or oral agreement between the principal and the agent. Through this agreement the principal authorizes a person to act as the principal's agent. 2 contracts exists 1.) one between the principal and the agent 2.) one between the principal and the third party

Agency by express agreement

Principal by words or conduct leads the third party to believe the agent has authority (apparent authority)  Principal will be bound by the agent's actions

Agency by Conduct

1.) Express Agreeements 2.) Conduct: actions inferred 3.) Estoppel: cannot contradict what is said by law - any representation by words or conduct that one is an agent cannot later be denied if 3rd party relies on that rep 4.) Operation of law (necessity)

How are agency relationships formed

- the ability of an agent to bind a principle where the principle hasn't alerted the third party of its limited role or termination - principle can still be held liable - principle must let third party know of restrictions

Apparent Authority

A situation in which a person or company inaccurately claims to be an agent for another person or company and conducts some act in that capacity, but which the principal (who is not actually a principal) later accepts and recognizes. - essentially confirming the agent's work

Agency by ratification (not really agent but confirm)

Performance of a contract is done ONLY by PRINCIPAL and 3RD PARTY - agent is not included - if the agent acts outside of the scope of authority he can be sued by principle - if the agent fails to disclose it is an agent, 3rd party can go after principle and agent - A principle is liable for an y sort committed by agent if the act was in the ordinary c course of the agents business - if the tort is committed outside the scope, only the agent is liable

3rd Parties and agency

- death by principle or agent - mental incapacity of agent or principle - bankruptcy of principal - completion of task - express agreement

Termination of agency

- consists of one business owner and owner is responsible for the management, debts, liabilities of business

Sole proprietorship

Consists of two or more individuals with a view towards profit - registration of partnership required by law

Partnership

- hints of partnership are sharing profits from the business - more than sharing profits is necessary, must have a role in managerial structure - a partnership is a contract outlining rights, duties, and obligation of each partner - Partner is an agent to all other parties during partnership business - a minor may become a partner but the contract is voidable at the minors option - the partner is accountable for other partner's actions - a firm is liable for any torts committed by a partner during the ordinary course of business partnerships - a new partner to a firm may not be liable for existing partnership debts unless the debt is assumed

Nature of Partnership

- rights and duties are stated in a partnership agreement under Alberta's Partnership Act - any property is split equally between partners including losses - without an express agreement partner's cannot be expelled - no person may be introduced as a partner without everyone agreeing - a partner can assign his share to someone else but this doesn't mean he becomes a partner

Partner's right's and duties

Individual partners are liable for the general debt of the partnership and for personal negligence but not for the negligence of other parties involved - limited partners cannot participate in managementA limited partner is in charge of contributing financially to the company, and in exchange, they get part of the profits of the partnership. The partner can't have obligations on the partnership's behalf or participate in daily management or operations.

Limited partnership

Has managerial debt and unlimited liability for partnership debts

General partner (unlimited liability)

Personal assets exposed liable for partnership debt

Unlimited Partner

- partnership is terminated when terms and conditions are met under the partnership agreement - notice period given to dissolve partnership - end of task - death of a partner - bankruptcy of a partner - mental incapacity

Termination of Partnership

Once dissolution occurs, assets must be liquidated and each partner's share is determined - all partner's debts must be paid to non partners initially then to partners

Post Termination Issues

Precedent which has been built up overtime since the Middle Ages such as case law

Common Law

Statute law: law passed by a legislative or by politicians Substantive law: what makes up the law Procedural law: how to file a lawsuit Public law: government and people Private law: between individuals canon law: religious law

Types of law

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way.

Stare decisis

- this is the law of business - developed rules for regulating businesses - based on business customs to resolve disputes

Law merchant

Fairness or stake in a corporation

Equity

William the conqueror the viking invaded England

Common law roots

Oldest legal system in the world - came to Canada through the French expedition

Civil law

- trade and commerce - interprovincial and international trade - banking - Public debt - immigration - intellectual property - criminal law

Federal section 91

- education - transportation - direct taxation - property and civil rights natural resources

Provincial section 92

BILLS - MOTION - DEBATE- READING STAGE- SENT TO SENATE- ROYAL ASSENT- LAW

How laws are made

- QB IS THE HIGHEST COURT IN CANADA AND THE FINAL COURT OF APPEAL - COURT OF APPEAL IS THE HIGHEST COURT IN A PROVINCE, IF TRIAL JUDGE HAS ERRED

COURT

A contract is an agreement between two or more parties for a specific purpose

WHAT IS A CONTRACT

Offer: person making the offer is the of offeror and must communicate an offer to the offered clearly; offer can be revoked before acceptance, however if accepted cannot revoke. Offer lapses under three conditions; passage of time, counteroffer, the party dies Acceptance: acceptance must be communicated in the manner the offeror requests Consideration: exchange of value between parties, the quid pro quo coming in the form of money, performance of a service or promise not to do something

Elements to a contract

Not everyone has the capacity to enter into contracts cannot sign a contract with a minor, all contracts are voidable at the amino's option - a minor is liable where the contract is fully performed -

Capacity - minors

- intoxicated or mentally incapacitated persons cannot contract

Capacity to contract

One cannot avoid a promise to another or deny the truth of a statement made to another

Estoppel

BSEN 395

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BSEN 395 - Detalles

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