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LAWG 100D2- Final Exam Guide - Comprehensive Notes for the exam ( 38 pages long!)


Department
Law General
Course Code
LAWG 100D2
Professor
Helge Dedek
Study Guide
Final

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McGill
LAWG 100D2
Final EXAM
STUDY GUIDE

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Class 5 - Civil and Common contract law compared;
Introduction to the law of obligations
“Classical” contract law as a “transsystemic” phenomenon
Introduction to the concept of “obligation” and its history
Law of obligations: contracts and torts
1410: The cause of a contract is the reason that determines each of the parties to enter into the contract. The cause
need not be expressed
1411: A contract whose cause is prohibited by law or contrary to public order is null.
1412: The object of a contract is the juridical operation envisaged by the parties at the time of its formation, as it
emerges from all the rights and obligations created by the contract.
1413: A contract whose object is prohibited by law or contrary to public order is null.
1414: Where a particular or solemn form is required as a necessary condition for the formation of a contract, it must
be observed; it must also be observed for any modification to the contract, unless the modification is only an accessory
stipulation.
1590: An obligation confers on the creditor the right to demand that the obligation be performed in full, properly and
without delay. Where the debtor fails to perform his obligation without justification on his part and he is in default,
the creditor may, without prejudice to his right to the performance of the obligation in whole or in part by equivalence,
( 1 ) force specific performance of the obligation; ( 2 ) obtain, in the case of a contractual obligation, the resolution
or resiliation of the contract or the reduction of his own correlative obligation; ( 3 ) take any other measure provided
by law to enforce his right to the performance of the obligation.
1607: The creditor is entitled to damages for bodily, moral or material injury which is an immediate and direct
consequence of the debtor's default.
Alan Watson, The Making of the Civil Law: its incorrect to assume that the difference between civil and common
law is that of codification. Civil law is not the same as codification. Yet, Author argues that historically both have
relied on civil law. [Civil code is the expression of the idea that you can theorize the law and deduct certain ideas
which come as reasonable, then use the principles to apply to cases].
Helge Dedek / M.J. Schermaier, Obligation (Greek and Roman): The obligatio is a “legal tie” that binds us to
render a performance to another person according to our laws. This definition timelessly expresses the nature of an
obligation: a debtor owes a duty to the creditor. Regarding contractual obligations, Roman law differed importantly
from modern legal systems in that it did not have a general principle that voluntary promises could create binding
obligations. On the contrary, enforceable contracts in Roman law were those that fell within one of four established
categories.
Geoffrey Samuel, “Classification of Contracts: A view from a common lawyer”: One of the deterrence said to
exist between contract in the civil law tradition and contract in the common law world is that the former starts out
from contract types, or named contracts, and works from these types towards a general theory of contract. Common
lawyers, in contrast, start out from a general theory of contract and work from this general theory towards a number
of special contracts. All of the civilian systems share is a general theory of contract founded on the idea of agreement.
The English history is one that concerns two fundamental types of form of action, namely the writ of debt and the
action of assumpsit (a delictual action for damages for breach of promise), neither actually being founded in any kind
of general theory of contract. Common law focuses on a promise (fragmented ideal contract); civil law is about
agreement!
Hawkins v. McGee, 84 New Hampshire (1929)
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Facts: H had a scarred hand. M convinced H’s father to let him operate on H’s hand by grafting skin from H’s chest
on to H’s palm. As a result of the surgery, H ended up with a hairy palm. M had repeatedly emphasized that H’s hand
would be “perfect” after the operation, it would be restored 100%. This didn’t happen, in fact the result was worse.
This might not be enough to establish a warranty in most cases, but since M sought out H to conduct the surgery, the
statements are taken as an inducement by M for H to enter in to a contract. M’s fault is admitted. Only damages remain
undetermined.
History: the jury awards damages, the trial judge sets the verdict aside because its excessive. CoA ordered a new trial.
Issue: (1) Was there a guarantee of a perfect hand? (2) What measure of damages should be used to compensate H?
Holding: (1) Yes; (2) The difference between a perfect hand and his current hand, not his original hand and his hairy
hand.
Reasoning: (1) M claims that his statements were not a warranty of results, since the jury had to find that both he and
H subjectively believed there was a warranty and he did not wish to give one; yet “the standard by which his conduct
is to be judged is not internal but external.” The jury found that a reasonable person would have inferred a warranty
by M. (2) “The true measure of the plaintiff’s damages in the present case is the difference between the value to him
or a perfect hand or a good hand, and the value of his hand in its present condition, including any incidental
consequences fairly within the contemplation of the parties when they made their contract. The extent of the plaintiff’s
suffering does not measure this difference in value [torts standard rejected].”
Ratio: (1) The measure of damages in contracts is different from torts it aims to put the victim in the position he
would have occupied had the contract been fully and successfully performed (2) Foreseeability is important. No
contract, yet the court reinterprets that it reasonable for the patent to conclude that there was a contract
***Common and civil law treat contracts differently. Common law is all about damages, civil law is more about
specific performance.
C.G. Addison, A Treatise on the Law of Contracts: It is a popular notion that the law of England is a mere
collection of positive rules, the knowledge of which is desirable so far only as it may be conducive to immediate
interest, or may furnish the means of professional employment and remuneration; but however correct this notion may
be as regards certain branches of the law, it certainly is not true with reference to the law of contracts, which is not
founded on any positive or arbitrary regulations, but upon broad and general principles of universal law.” [3] [This is
horse-shit, btw. CL contracts theory is ridiculously arbitrary and rule-bound].
Atiyah, The Rise and Fall of Freedom of Contract: English contract law is largely imported from France. Pothier’s
Law of Obligations was translated in to English and widely read by English jurists. An English Chief Justice went as
far as to claim Pothier constituted a legal authority on contracts in England. Pothier’s influence gave rise to the idea
that contracts are agreements based on the intention of parties and that it is their will which creates the legal obligation.
Some results: offers can be revoked prior to acceptance, even when relied upon; neither party owes a duty to the other
until a deal is struck; only fraud and misrepresentation are prohibited; reliance on “implicit clause” arguments.
- “English judges have always been stronger in doing justice in pragmatic fashion, than they have been in
theoretical justifications for what they are doing.”
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