• 11 Multiple choice (2pts)
• 8 True/False and explain (1.5pts)
• 3 Short answer (2pts)
Classical Fiduciary Relationships in Undue Influence:
• Lawyers and clients
• Doctor and patients
• School teachers and students
• Parents and children
• A family member taking care of an older family member
• Professor and student
Three types of questions with these relationships:
o Negligence▯Standard of care (higher with a professional)
o Misrepresentation and silence
o Undue influence
If there is a sale involved ▯ contracts
If someone dies because of something ▯ negligence
If it is about something being said or not said ▯ undue influence
• If there is a fiduciary relationship, we assume that there is undue influence.
• There is one way to deal with undue influence with a fiduciary relationship: GET
INDEPENDENT LEGAL ADVICE.
ETHICAL PERSPECTIVE 10.2 ▯Beach vs. Eames
• The issue is about unconscinability and unfairness.
• The contract should be set aside because it is one sided and one that no right
minded person would ever make and no fairminded person would ever accept.
• It is not a fair contract.
• He did not suggest independent legal advice.
• It has been four weeks and he still cannot get up and walk around so we can
assume that it is way more than $500.
• He still has not seen a doctor so he cannot properly asses how much his injuries
• Is there an improvident bargain? (a bargain made without regard to the future, sort
sighted and not well thought out)
o There is one here because he hasn’t seen a doctor and thought things out.
• Is there an inequality of bargaining power?
o YES because he has limited education and modest mental ability. o The trust issues.
o And purely because he is an insurance agent.
o He is still in pain and suffering the effects, so he does not have as much
o He showed up UNEXPECTEDLY. No chance to prepare. Surprise is
always an advantage and creates an imbalance.
• If there had not been either or, there would not be an unconsciable situation and as
a result the contract could have been enforced.
• He will have the right to rebut the presumption but he did not tell him to get
independent legal advice or to see a medical professional so it would still be
claimed as an unconsciable situation.
Discharge and Breach
• Contractual discharge means that the parties to the contract are relieved of the
need to do anything more under the contract.
• They don’t have to do anything more in terms of performance but it doesn’t mean
that the contract is dismissed. You can still be liable in damages if you did not
• FOUR WAYS CONTRACTS CAN BE DISCHARGED:
Do what you promised to do.
You must perform EXACTLY what and how the contract
stipulates. Even small deviations are breaches.
What happens if I am ready to perform but the other party makes
performance impossible for me?
• If you make it impossible, you are in breach of contract and
the other person is discharged from their contractual
obligations and can sue the other party for breach of
How do I know when I have done enough? What if I did pretty
much everything but my performance is defective in some minor
• This is called substantial performance.
• It discharges you from the contract but it does not protect
you from possible liability.
• You have to give just substantial performance to be
What if it is something less than substantial performance?
• Then the issue is was the contract for a series of tasks or
was it an entire contract? • An entire contract means that no part is payable until it is
fully complete. If he does half and then leaves, you don’t
have to pay him anything until he substantially performs.
• A series of tasks is hiring someone to cut your grass over
the summer. You are not buying 10 grass cuts you are
buying 10 opportunities. If they only show up 5 times they
only get 5 times worth of pay.
There is something in the agreement itself that leads to discharge.
TERMS OF CONTRACT BECOME RELEVENT
• 1. Option
o A type of contractual term that gives one or the
other or both partied the right to bring the contract
to an end (to discharge it)
o Usually it is subject to a requirement with a certain
amount of notice.
o Often it is written notice.
• 2. Condition Subsequent
o It triggers the end of the contract but this time the
term makes reference to some external event that
o EG “If X occurs, this contract is discharged and
neither party has to perform”
• 3. Condition Precedent & TRUE Condition Precedent
o They don’t operate to discharge a contract the work
to trigger the start of a contract.
o Before this is triggered, parties do not have to
perform under the terms of a contract.
o Condition precedent is when you have a contract in
existence but the parties primary obligations are
suspended until some other event is accomplished
(usually tied to one of their obligations)
o EG. Sale of land ▯ the buyer has to get adequate
funding to make the purchase before they can buy
o Let’s say you don’t want to pay for it anymore so
you just don’t bother trying to get finance, you can
still be liable for because it is a secondary part to
the main contract.
o True Condition Precedent is when the contract
does not exist at alllllllllll, there is no contract, until
some event occurs.
o EG. Suppose you are a weapons dealer and you can
get this gun but it is illegal in Canada and anyone who offers it for sale is committing a crime. You
cannot enter into a contract. Suppose you heard that
parliament was about to approve it so you want to
be in a position where you are able to start applying
guns as soon as they change it but on the other hand
you can’t enter into the contract right now.
Therefore you use a true condition precedent, which
says there is not contract right now, but you agree to
enter the contract with someone as soon as the
o Usually related to you not being able to do
something YET because it is illegal.
Suppose Miles is going to fix Sudevis roof and Sudevi is going to
drill a well for Miles but suppose the both decide that they don’t
want to be in this contract anymore.
• Is the contract Executory (not all of the obligations under
the contract have been fulfilled) or Executed (the party has
fully performed all of their obligations)?
• Fully Executoryg ▯ etting out of the contract is really simple.
o If it is executory you can fin