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Fifth Lecture of Contract Law.docx

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Western University
Philosophy 2080
James Hildebrand

Philosophy of Law- November 27, 2013 Standard Form Contract - Standard form that everybody in the industry uses - Simple contracts, NOT FORMAL - Formal: have to be in writing in order to be enforceable - If you sign something in writing then you and bound to what you sign, even if you do not read it Tilden Rent-A-Car Co. vs. Clendenning - Standard form contract - Terms and conditions are usually on the back of contract - Tilden prides self on how quickly you get your keys and get out - Clendenning is renting a car - Clendenning is charged with impaired driving - He is from Woodstock, but accident occurs in Vancouver - Clendenning paid the extra 2-3 dollars for the insurance which covers for everything - In 1978, if you plead guilty for impaired driver, you will get fined and not lose your license - Tilden sued him for totalling the car - On the back of the contract, which is hardly legible on customer copy it stated: o not in violation of any law, rule, regulation, or public authority o not drove by any person who has consumed intoxicating liquor whatever be the quantity o not drove by anyone who has consumed drugs - plead guilty in criminal court on basis of lawyer’s advice - Clendenning claims he was not impaired - Judge accepted the evidence that Clendenning was not impaired - Did he know about the contract? - Can he use that as a defence? - Fraud from tort law - Non est factum- not my deed o Does not apply here o Not what I intended to do when I signed that thing o Very rarely a successful defence - Tilden is relying on exclusion clause on back of contract which is hardly legible - Clendenning states he was unaware of this clause - Typically, if you sign you are bound - If you did not know what you signed, you should have read before signing - Tilden employees told not to talk about it and told to misrepresent it (if asked) - The way the contract is presented is a misrepresentation o By omission, they are concealing it o Therefore, not binding o This was the trial judge that said this - When you sign something, the other party has a reasonable obligation to explain what you are signing - 2-92 it would be a strangely generous set of conditions in which the persistent reader could not… no difference whatever if it was read or not. Not meant to be read. Meaning is not understood. - Tilden appeals the decision - Ontario court of appeal: any party that seeks to rely on onerous terms in an agreement without taking reasonable steps cannot rely on those terms o The other party must know about terms o From now on, a written agreement containing onerous (harsh/disadvantages) terms the other party has to actually has to draw their attention to these terms and explain them because then they will understand o Obligation to owner of contract - Dissent: not a technical breach of contract o He plead guilty to being drunk o He signed the contract o Parole evidence rule o Bind by its plain and ordinary meaning o Contract law is as is o The exclusion/ terms of contract is not unreasonable or onerous *Clendenning is not so sympathetic as we may think, he is a lawyer. Rudder vs. Microsoft - Microsoft had an internet service where you install it (software) and sign up - Rudder signed onto internet service - After six months, your terms of condition would change - He was paying by credit card o 16 dollars every month o After six months: 28 dollars every month because of service enhancement - Starts class action lawsuit because he believed this was not fair - 79000 people involved - Sues in Toronto - Microsoft’s defense- you did not read your contract - Forum selection clause- if you want to sue us, you can only sue Microsoft in Washington o This selects the law that will apply - Emotion for summary judgement- a motion- there case is so bad, we don’t need to have a trial o Court will permanently freeze so that it cannot go up in court level o Timeline: between the bad thing that happened, the lawsuit, and the court/trial date o Microsoft had succeeded in the motion and the case was kept in Toronto - Relying on that term that Microsoft said he couldn’t sue. Also in wrong city. - Rudder- claimed the term was hidden like fine print o You can’t say it’s fine print o You didn’t read it o You had all the time to read it o More responsibility
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