LAW 525 Lecture Notes - Lecture 2: Actus Reus, Regulatory Offence, Implied Warranty

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28 Jul 2016
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Professor
Law525 – Lecture 2
Private law remedies
- 1. Contract law
oSue for dmgs ($)
Breach of contract if the quality, fitness or performance of product does
not comply with expressed or implied terms
oImplied terms
Trade practices
Sale of goods act
oPrivity of contract
Only the parties to the contract can enforce it
B & S -> enter in contract
Only B can sue the S
- 2. Tort of negligence
oTEST:
1) No privity of contract or implied statutory warranties
Plaintiff must try to prove negligence
oNegligence -> failure to exercise reasonable care & result in a reasonably
foreseeable injury to plaintiff
oNegligence in product liability cases
1) negligence manufacturing of product
2) negligence design of product
3) failure to warn foreseeable users of dangers
4) negligent misrepresentation
oCauses of action
1) breach of contract
2) tort of negligence
3) statutory cause of action
- Resch v. Canadian tire case
oStep father buy bike
oBike defective and kid gets injured
oS.15(1) – a “buy” gets an implied warranty of fitness for purpose
Where B, expressly or by implication makes known to S the particular
purpose for which goods are required to show that the B relied on S’s
skill or judgement and the goods are of a description that is in the
course of S’s business to supply (whether he is the manufacture or not)
There is an implied condition that the goods will be reasonably fit for
such purpose, but in the case of a contract for the sale of a specific
articule under its patent or other trade name there Is no implied
condition as to it fitness for any particular purpose
oS.1 “buyer” – the person who buys or agrees to buy goods
oS.2(1) – A contract of sale of goods is a contract where S transfers or agree to
transfer the property in goods to B for a money consideration
Called price and there may be a contract of sale between one part owner
and another
oCOURT DECISION
No -> buyer was the father
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No evidence that son paid money
Buyer is the person who enter into the contract to buy the goods
oIf the son was not the “buyer” under contract to purchase the bike there is NO
PRIVITY OF CONTRACT
court refused to acknowledge an exception to the privity of contract
doctrine
oSale of goods act claim -> failed
oNegligence action -> succeed
Regulatory approach to B-C transactions
- 1) private law approach
oA. contract & tort law
oB. burden on plaintiff to prove case on balance of probabilities (civil standards)
oC. damages or injunctions
- 2) regulatory law approach
oA. statues -> e.g consumer protection act, cdn consumer safety act
oB. gov’t ‘s active role
oC. 3 types of offences
oD. 2 tracks – criminal or civil
oE. inspectors & investigators
oF. remedies including jail
3 types of regulatory offences
- 1. Full mens rea offence (“true” criminal offence)
oTest:
1) gov’t must prove:
Actus reus( the act)
Mens reus (intent or recklessness)
Look for works like willfully, knowingly, with intent, intentionally ->
means mens reus is required
2) burden of proof is on gov’t
3) standard of proof is beyond a reasonable doubt
- 2. Strict liability offence (SLO)
oTest:
1) gov’t must prove: actus reus (the act)
2) burden of proof is on gov’t
3) standard of proof is beyond a reasonable doubt
4) defenses:
due diligence defense -> reasonable care
accuse must prove defense on BALANCE OF PROBABILITYS
oMost regulatory offenses are SLO
- 3. Absolute liability offense ( ALO)
oTest:
1) govt must prove: actus reus (the act)
2) burden of proof upon the gov’t
3) standard of proof is beyond a reasonable doubt
4) there are no defenses
oALO are rare
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