CommLaw Condensed Notes.pdf

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COMM 393
Deborah Meredith

I. Dispute Resolution 1) INTENT=Both/All parties must show intent to be bound by their promises. cus’attention,  3)legally  defensible exemption clauses will bind parties to all terms+conditions provided within the clause(where defensible means that the clause has consideration) A. Court Systems and Procedures Legal presumption that intent exists in commerce/business transactions but can be rebutted that intent DOES NOT exist between close frds/family members APP: 1)pl.were repeatedly notified of the forum selection clause when registering for service, and Law(“statue  law”/”legislation”)  created  by: (when being rebutted the court will do OUTWARD CONDUCT (Objective Test) by ask even tho an end-user does not read all the wau thru a K,all sections of the K are binding if the user 1)govt(all  3  levels),  2)  court(“common law”/”judge-made law”),   “agrees,”  despite user forgets to scroll thru the whole doc, 2)rhere is no evidence that the cours in 3)administrative tribunals(worker/labor/LRB/HumanRightsCommission) “would a reasonable person looking at the of the parties say they showed intent to be KingCounty,WA will rule in a biased/inequitable fashion and it may be more easier for win since bound?”    ▯intent is always argued objectively) hearings are within Washington borders, and forum selection clause: choice parties should be ▯given authority by govt to make law, very powerful Types of Law: respecred  unless  “there’s  strong  clause  to  override  the  agreement”.  The  burden  for  showing  a  “strong   Supple.Pkg Carbolic SmokeBall clause”rests  on pl,which the pl.did not. 1) Procedural=method  of  conducting  trials,  “rule  of  evidence”  in  play, “$100 pounds reward will be paid & $1000 pounds will be deposited” law  of  “pleadings”  (law you need to SUE) Issue#1: Is there a contract? 2:Breached? 3: Damages(foreseeable+mitigate) INTENT: Yes, cuz bought product/deposited (land) 2) Substantive=law that define/regulates rights in society, can be break down to: 4) CONSIDERATION=an accepted offer is NOT valid unless there is consideration i)Public: law that governs relationship b/w “persons”+”govt” OFFER: Yes, the 100 pound reward turns invitation into an OFFER (More  than  a  mere  Invitation.  So  (seller promises to sell, buyer promises to buy). Actual goods/money exchange do NOT construe consideration. eg)TAX/Criminal/Constitutional law – “guilty  of  a  virtue” now a promise exchange for an ACT. Despite company may argue only mktg campaign that “deposited   1) Mutual exchange of promises (consideration=bilateral K, $1000 pound into Alliance Bank, showing  “sincerity”  in  the  matter,”  the  offer  alrdy created legal - compensate: punish jail/rehabitation/restitution|remove from society obligation. So parties bound by the contract legally. Eg.mutually promise to do/pay/give up G/S) So such exchangemust have -commence legal action/has burden of proof:Crown ACCEPTANCE: bought it ▯CONSIDERATION, CAPACITY(mental-N/A), LEGALITY(N/A) benefit/detriment to some side . “Promise  to  do/pay  sth, NOT to do sth ▯FOREBEARANCE”). -burden of proof:beyond reasonable doubt Prom case: 2) A Promise in exchange for an ACT (consideration=unilateral K▯OFFER on Ads) ii)Private:law  that  govern  relationship  b/w  “persons”  ▯FOCUS INTENT: Despite presumptions say that Intent DOES  NOT  exist  since  they’re  frds, however such claim Eg. Supple.Pkg Carbolic SmokeBall eg)CONTRACT /TORT/AGENCY/PARTNERSHIP/Company/Employment/Land/Family/WillsState law – “liable/in  brcan be rebutted by the girl since AT THE TIME of proposal (offer) he is reasonably presumed that he “$100  pounds  reward  will  be  paid  &  $1000  pounds  will  be  deposited”   wants to take her out ▯OFFER▯ACCEPTANCE -compensate: money|commence legal action/has burdenof proof: pl. 3) A promise made under SEAL=binding w/out further consideration being necessary -burden of proof: on a balance of prob(51% rule) =this is the point where you put a sticker and SIGN (signature) on contract Types of Costs: 2) OFFER=”proposal”  with  Intent, must be clear on Parties/Price/Object-subject matter of K General rule: =(limited amt to 1 respondant/reward/buy 1 get1 free/next discount) 1)Solicitor/Client cost: pymt for a  lawyer’s  time+expense inpreparing a case+representing a -Consideration is not restricted tomoney exchange. A bargain may involve exchange of client($300-500 hrly)+contingency fee(if win the case. Downside:encourage frivolous litigation) ▯CALLing an ACT from buyer(unilateral)▯legal obligation if out of stock anything the parties to K think is of value. INVITATION=proposal lacks intent, simply display price-points/descriptions -The consideration promisor receives need not be for his own benefit, so long as promisor 2)Party&Party cost: an award of $ judge grants to winner to partially compensate for his/her solicitor/client cost(paid by loser). Based on published tariff(supreme court rules), (General rule mere invitation: ads in newspapers/catalogue) bargains for other party to do sth/promise to do sth that the other party wud otherwise not most winner can get:40-50%.  If  lose  has  to  pay  60%  of  winner’s  cost  (eg.up  to  scale3) ▯NOT calling an ACT from buyer▯no legal obligation if out of stock do, promisor has received consideration. (eg.Bank  wud  not  approve  loan  to  A  w/out  B’s   LAND (exception to OFFER): despite offer has a listPrice, the law says that land can be guarantee. Since  B  provided  guarantee,  altho  B  didn’t  receive  any  benefit,  the  fact  that  Bank  did  sth   B. Sources/Systems of Law sold/bid at the HIGHESTprice. So if go to realtor but  the  land’s  no  longer  that  it  wouldn’t  do(grant  loan  to  A to provide A pressure), B has received - Common law vs. civil law (CAN.has 3 systems) sell at listPrice$1,059,000,  CAN’T  sue   consideration) 1) CL: “Theory  of  Precedent” (stare decisis) – court look to past cases w/similar/ R. v.279707 ALBERTALTD. (MISLEADING ADS OFFER–Statutory/Criminal JAIL) Exchange (GENERALLY) NEED NOT  be  “FAIR”  or  “EQUIVALENT”   identical facts from higher/equal court to decide new case(if no prior, make new). Issue:1)s.52 Competition Act–Misleading advertising, 2)s.57 Competition Act–not supplying bargain Eg. Father promise to sell land to Son, who promises to pay1 peppercorn back to father Starting from recent yr(shift towards overriding precedent, necessary in a fast-changing goods advertised So to get a contract binding, SIMPLY get contract SEALED + SIGNED. society) and highest-lowest court(supremeCourt ofCAN,BC CourtofAppeal,BCSupremeCourt,BCProv.Court LAW:1)if a company advertises for a product and does NOT hv the product on hand, they can be CALIGUIRI v. TUMILLO Case Book 29 (Consideration– re-READ)!!!! –Remedy: MONEY charged for false advertising, 2)s.52+57 violated tgt can constitute 2 charges Caligiuri(dad) gave $50,000 as advanced loan to son+his 5 SHDs). Tumillo(SHD) have –ADV:guidance/predictability/consistency/flexibility NotRigid(cancreatene)|DISADV:slower APP: 1)s.52–crown+court believe whole ad was a scheme from start to finish despite ads are not promissory noteto dad hoping not call the loan(forebearance). 2) Civil Law: based on RomanCivilCode,oldest system,used in FranceGermanyItalityPortugal. completely  technically  false(could’ve  induced  more  ppl),  having  2-5sets on hand was far too smaIssue: Was  there  other  valid  consideration  for  Tumillo’s  promise? reservation to fulfil these ads, 2)altho accused held that the word “Supply”  in  the  Act  simply  meant  to   No (theoryofPrecedent)obligation to [email protected] cases have on hand/avail. court can interpret in contextually(compare w/surrounding LAW: Consideration  was  there  to  consist… –ADV:fast|DISADV:Inconsistent/no predictability/rigid circumstances/competitor), 3)altho accused argued that s.52+57 are generally same argument under INTENT vs. CONSIDERATION inREAL ESTATE 3) Equity: goes w/CL, used principlesof EquityFairess,Conscience,MoralEthics. Kienapple principle(an accused cannot be convicted twice from offences arise out of same facts), In  REAL  ESTATE’s  cases,  realtor  often  requires  you  to  deposit  10-20% of purchase price. 1875:2courts merge into1,but systems remain distinct. 2012:cangotoCourt+call for either: court disagree as both cases hold by themselves. However, the deposit only shows intent, not yet consideration! In most real estate transax, CL($) OREQUITABLE REMEDY(DISCRETIONARY) PREVENTION: on ads: Specify/ disclose to public on how much you have (eg. 2 sets in this store & 5 setintent  is  PRESUMED  so  there’s  NO  LEGAL  obligation  that  MUST  deposit. Instead just need to (i)Rescission(StatusQuo):contract unravelled, place parties into pre-K position Ways to Terminate an Offer pay when both parties accept the K. (eg. breach condition as K discharged/bought a defect 1)Offer may lapses when offeree fails to accept within statedtime in the offer/ Gratuitous Promise: promisemade w/OUT consideration (ii)Specific Performance(S.P.):court order to live up to a promise ( if no time limit is stated, within a reasonable time =Oral promises w/out exchange/Signed but not SEALED (w/NO stamp/sticker=Not Binding) (iii)Injuction:court order to stop doing  sth  that  you  promised  wouldn’t  do   2)Offeror revokesthe offer b4 the offeree accepted (offeree w/d offer) Because  it’s  made  w/out  consideration,  it’s  NOT enforceable (hence NTH in exchange!) (eg.restrictive covenant, strike) = revocation by MAIL is complete WHEN the LETTER is DELIVERED to  the  offeree’s  usual  address Eg.Frd lends money to lender, agrees to pay monthly pymt+interest for 5yrs. During the ▯can only get eq.remedy if: inadequate $compensation+act quick/promptly 3)Offeree rejects/ makes  a“C/O,” which is in effect a rejection. Livingstone v. Evans years hadmutualy modified a contract(orally/writing w/outsealed) that no charge interest. +cleanhands+prove goods/land being bought is unique 4)Offeree accepts before any of the 3 above has occurred But after 5yrs lender come ask for unpaid interests. Lender wins since the oral agreement (NEVER grant in service/employment K) 5)Where either party dies/becomes insane prior to acceptance bankrupt?? was a gratuitous promise, had NO Consideration so not binding+unenforceable. CIVIL PROCESS(a civil wrong-breach of K/Tort-is committed. Litigent consults lawyer, lawyer tries ADR.▯Eg. Coupon/Voucher If unsuccessful, pl.instructs lawye r commence legal action)▯PL FILE NOTICE OF CIVIL CLAIM(notice Equitable Estoppel:if 1party(by  his  conduct)indicates  that  he  wst’t  insist  on  strict  rights   Offer: “Bring this  add+deduct  $20  purchase  of  2  buffett  dinners.  Expires  Nov  30th  2012” underK and the other party relies on his detriment, then the 1 party willnot afterwards be must  be  “served”on  filing  an  affidavit  of  [email protected]  house.  Def.has21days  from  the   ▯Problem: Nov 30th is NOT enough cuz altho the restaurant owner assumes expires allowed  to  insist  on  those  strict  rights  when  it’d  be  inequitable  for  him  to  do  so  (cannot later dates/he’s  served  w/the  civil  claim  to  file  a  response)▯DEF.FILE RESPONSE TO CIVILCLAIM(pl.take @time restaurant closes, but buyer can claim at 11:59pm!! default judgement if def.fails to file response within21days,def.can also file a counterclaim against SLTN: Be more specific on TIME!! come back to surprise). Court says gratuitous promises (SOMETIMES) should be enforceable. pl./bring other parties into litigation by filing a 3 partyNotice(very effective doc as shifts some blame Pl(the attacked party) can show whether if the doctrine of Promissory/Equitable estoppel applies: rd Offer: “2  for  1  – Limited Time Mon-Fri 11:30-9pm” 1) prove both parties have a contract,  2)  one  of  the  parties  promises  “=gratuitous to the 3 party/co-defendant))▯DISCOVERY PROCESS(parties examine each other under oath+must ▯Problem: this is TOO vague. deliver any doc they intend to use in court to other party. If doc not given to other [email protected] SLTN:  Judge  would  tell  you  it’s  always  EASY  to  add  a  specific+clear  date/time/YEARomise,”modify  a  K  by  making  a  promise/conduct/implication(eg.Mrs.B  promised  won’t   they may not be [email protected])▯TRIAL(avg lasts 3-4days,most lawyer are motivated to settle b4 charge interest, would release him from legal duties) and 3)the other party in reliance on discovery as can get 30-40% of winning money-contingency fee) that promise, 4) the party suffers hardship if the party giving gratuitus promise does not live 3) ACCEPTANCE=must be the mirror image of the offer until there is an unequivocal(clear) - Statute, precedent and the Charter acceptance of all terms W/OUT change there is NO contract. up to the promise. Canadian Charter of Rights and Freedom IF the offerorstipulatesamethod of acceptance then follow instructions. NOTE: Contracts change during the life of the contract.  Unanticipated  problem  arise.  Can’t  rely  on  something   (gratuitous promises made) when no exchange is made. SO have to ensure there is STH in EXCHANGE (based on Loopholes/concerns: IF the offeror doesNOTstipulate amode of acceptance, reply by the same method used by SEALED=Consideration).  “For  consideration  in  3  days  later  I  pay  $1”. 1)applies to govt action only –all 3 levels (eg.AirCanada v. R/Crown/Govt) offeror.Must be in words/conduct. Silence cannot be a mode of acceptance unless 2)Not absolute unusual cases (eg.recurring book club deliveries). 6781427 HoldingsLtd. v. AMS(DUKE’s  COOKIES) i)s.1 (reasonable limits) –allows to be violated/overridden eg. If offered a job, requested to reply via mail but you phoned them back. Employer can either Issue: 1)Is there a gratuitous promise? 2)Are the parties bound by the K? 3) does equitable estoppel ii)s.33 (notwithstanding clause) –justifies override if promote society benefit acknowledge  your  reply  as  acceptance  OR  not  accept  cuz  didn’t  reply  correctly apply? eg) LordsDayAct prohibit business on Sunday “think  mirror  image”  (if  offeror  offered  you  the  job  via  mail,  you  replied  via  mail.  If  offeror  offered  job   iii)s.15 (Equality rights) –guarantees equal protection+benefits of law w/out via phone, you reply via phone!) LAW: Contracts w/out consideration is invalid and unenforceable. Defns of gratuitous promise & equitable estoppel (meaning+its criteria) discrimination, in particular to vulnerable groups,  demean  someone’s  dignity Postal Acceptance Rule: APP: 1)Yes  the  fact  that  AMS  told  Duke’s  about  granting  them  bigger  space  to  take  care  of  traffic  jam   –infringement of fundamental rights(vulnerable group: ethinicity/gender/non-citizens/age/rel-IF the offeror stipulates acceptance by mail then follow instructions. IF the offeror(via mail) does misleads  Duke’s  about  the  current  existing  K,  which  makes  them  not  renewing  the  existing  K  as  AMS   iv)s.2 (Fundamental freedom) –legal/equality/democratic/mobility/religion stipulate a mode of acceptance, reply by the same method through mail. promised  Duke’s  about  the  new  K  with  bigger  space.  Duke’s  replied  on  AMS’promise.  However  when   3)  All  legislation  presumed  valid  ‘til  challenged  in  court.   -Exception: when a K contains an express term requiring acceptance REACH the offeror, the postal lease date about to expire, AMS stopped negotiation which puts Dukes into devastation and decided If law found challenged+unconstitutional▯declared ULTRA VIRE (beyond power) accept.rule cannot apply (eg.InsuranceCompany requires pymt must be received in order for to SUE. 2) Parties are not bound by the old K since it has expired and not by the newK since it was a ▯NULL&VOID (must re-write new law) insurancePolicy to be effective, the company encourages enclosing return envelops via postal gratuitous promise as Dukes provided nth in return as exchange (“you  didn’t  give  us  any  lease  so   communication.  Since  postal  accept.rule  cannot  apply,  there’s  no  acceptance  hence  the  insuryou’re  out”).  3)  Equitable  estoppel  applies  in  this  case  as  AMS and Dukes had a former K relation, LIEBMANN v. CANADA (Charter) collapse, which means the strict rights under policy  w/respect  to  pymt’s  time  reqmt  wudn’t  be  insisted.   Issue: 1)Does  Charter  apply  to  dec.not  appointing  Liebmann?  2)Were  Liebmann’s  equality  rights  under   Dukes  replied  on  AMS’promise  and  suffers  hardship  if  AMS  does not live up to its promise. Despite it Charter’s  s.15 infringed? 3) Could infringement be justified under Charter s.1? Altho  equ.estoppel  prevents  InsuranceCompany  to  enforce  strict  legal  rights,  it  can’t  be  eseems that AMS shud be responsible for the modified K, the court could not demand AMS to give LAW: 1) Charter applies to dec.made under delegated statutory authority. Infringement of s.15 occurs far as 7months after the final notice was orig.mailed as this wud make eq.estoppel be used as an longer lease to Dukes since no consideration and had expired so Dukes got kicked out and offense (offer shud collapse if offeree fails to accept within reasonable time, if no stated time on KBlueChips(AMS run)went in. if someone is treated differently based on characteristics outlined in s.15, and as a result  the  person’s   dignity is demeaned. Warning: Dukes(offeree) cannot negotiate a new lease in the orig.K as it could be a APP:1)Dec.regarding Liebmann was made under the authority delegated by NationDefenceAct and is MONTANE VENTURES v. SCHROEDER (Terminates Offer –C/O(rejection) v. Inquiry) counter-offer (since  new  contract  hasn’t  been  made!) thus  under  Charter’s  authority,  2)Liebmann  was  treated  differently  from  others  based  on  personal  )Does the addendum constitute a repudiation/counter-offer/amere inquiry of the orig.K? SLTN: ripped old, get new , sign+sealed on new K. 2) If this does NOT constitute rejection/C/O, shoud S.P.for the orig.K be awarded to the plaintiff? characteristics enumerated in s.15, and there was definite discrimination in a constitutional sense(via CFAO 20-53 prevention of certain to participate in peacekeeping missions based on cultural/ethinic bg)LAW:1)Whether communication constitute C/O/inquiry depends on intention,objectively ascertained, TULSAHEATERS INC. v. SYNCRUDE CANADA LTD. (Gratuitous Promise – EQ.ESTOPPEL) that his dignity was demeaned. Also after rejected Liebmann CanadianForces further proved evidence w/which was made, 2)C/O amounts to rejecting earlier offer+bring it to an end. If offeror in turn Any deviation from the contract=count asbreach of K of  infringing  “equality”  rights  as  they  were  trying  to  fill  in  position  w/another  candidate-judge find, the orig.offer is not revived, and a new offer has to be made, 3) inquiries /seeking respondents dishonest), 3)respondents did not show that it was reasonable to discriminate against clarifications does not amount to rejection of orig.offer, 4)S.P. will normally be reqarded to the injurede: 1)Is there a gratuitous promise? 2)Are the parties bound by the K? 3) does equitable estoppel party,at their request, when the dispute involves sale of land. apply? Lienbann cuz he was Jewish. LAW: Contracts w/out consideration is invalid and unenforceable. Defns of gratuitous promise & C. Alternate Dispute Resolution (from more control over process+outcome to least) APP: If the addendum did constitute a C/O, then Mr.S had the right to reject it+put forward a new equitable estoppel (meaning+its criteria) offer. However, 1)Court det.that this was a mere inquiry(not C/O) cuz no signature/formal acceptance ADR from  Mr.Schroeder  is  req’d  on  the  addendum, 2)the context of the case showed that Montane was APP: 1)Yes  Syncrude  modified  the  K,  promising  NOT  to  demand  seamless  pipe(since  Tulsa  couldn’t  find   1)Negotiation(2or more parties meet face-face resolve conflict. Done w/out TP assistance) merely confirming regarding prior oral convo their realtor(Mr.Heves)had w/Mr.Schroeder, 3)the this pipe anywhere else). Hence, Syncrude is making a gratuitous ptomise in not to make seamless 2)Mediation(a neutral TP assists conflicted parties to confer w/the goal of resolving diff b/w them, in a pipe. 2) Parties are not bound by the new modifiedK since it was a gratuitous promise as Tulsa did not inclusion by realtor in addendum of sentence re.inspection certificate follow from the condition offer anything in exchange. 3) Equitable estoppel applies in this case as Tulsa was awarded of the K to manner  that  leaves  outcome  in  parties’hands.  Mediator controls process but NO control over conteprecedent  in  the  orig.K  that  Montane  must  be  satisfied  w/the  lease  agreement.  Hence  it  ddo  bz  w/Syncrude,  S’s  promise  in  no  seamless  pipe  made  Tulsa  relied  on  it  and  further  continued   discussion/outcome/make binding decision) that  the  purchaser  showed  “intent”  different  from  what  the  orig.K  stated,  4)  Since  the  dispute  involves 3) Conciliation(neutral TP acts as a shuttle  diplomat(“go-b/w”)  w/the  conflicted parties to assist the sale of land, S.P. is the proper award for manages to the injured party. w/the project operation. And when S found seamless pipes, S refused to pay Tulsa the costs of all resolving conflicts. Concilliator has MORE control over process+content operations incurred (587,170,000) which makes Tulsa encountering hardship.Tulsa  wins  but  could’ve   avoided  all  litigations/costs  if  calculated  welded  pipes’  costs  b4  ordering  and  notified  Syncrude. 4)Arbitration(TP w/particular expertise in certain disputes assists by listen+make dec.regarding Offeror: controls the contract: Terms/Howlong offer is open for/Howacceptance is made dispute’s  issue.  MORE  control  over  process  than  adjudication,  but fewer option to outcome appeAcceptanceMethods – at DISTANCE: III. Inside the Contract Adjudicates the dispute, but less formality than a court case) 5)Adjudication(Judge listen+make dec. regarding dispute issues for conflicted parties, which can 1. Phone(acceptance completes when words are heard) A. Interpretation accept/appeal. The parties do NOT have control over process but may appeal outcome) 2. Email-Electronic Transax.Act ( accept.  completes  when  mgs  is  capable  of  being  “retrieved”Interpretation Rules – for interpretation of Contracts and Statues however this can be modified w/offer!! ▯L.side(Negotiation/Mediation): Arguments need not be legal in nature. Can be creative, In a written contract, there: discussion is constructive. in the same room. 3.Fax:  (accept.  completes  when  “Received”) I. WILL BE express terms(terms that actually exist in a K) ▯Middle(Conciliation): party afraid, can’t  be  in  same  room 4.Mail: Postal Acceptance Rule: =Approaches to interpretation of express terms ▯R.side(Arbitration/Adjudication): all arguments need to be legal in nature. IF 1) offer comes by mail w/out directions (re: acceptable) OR So court begin to look at: NO creativity/control over outcome. 2) offeror stipulates acceptance bymail 1) Literal/Plain/Dictionary (dictionary  def’n  can decides the case quite quickly+exclusively). ▯Mediation & Arbitration (DIFFERENCES): arbitrator actually decides, but mediator tests THEN – acceptance is complete when letter is posted/sent (double registered mail) 2) Liberal/Contextual Analysis of terms (Surrounding circumstances/negotiations prior to K/ solution (should NOT supply outcome/solution, ONLY job is ensure parties on track, define issues) Jurisdiction: in  general,  a  K’s  formed  at  the  place  where  the  acceptance is made/completed/ industry specific language). HOWEVER, this info (has lesser weight than LITERAL) should be kept in background because getting a context overwhelm a K may turn Advantages of Alternate Dispute Resolution: becomes effective 1)Speed+finality, 2)Cost(less exp.), 3)Confidentiality(courtroom:public-setting), FORUM SELECTION CLAUSE:Dictates which jurisdiction. ?? the K into sth totally different.) 4)Choice of mediator/arbitrator to reach sltn, 5)preserve ongoing relationship(less Eg. Seattle(US) company OFFERS to do bz w/Vancouver(CAN) company. SeattleCompany can modify 3) CONTRA PROFERENTEM(Last resort: case is decided against the party having the bet opportunity to select the language (wording) for the contract. damaging–parties can actually work with each other after) the Postal Acceptance Rule in offer when acceptance is received. SO  if  the  party  could’ve  done  it  better  (checked  grammar/def’n)  but  didn’t  do  so,  the  party  LOSES.) =Forum Selection Clause II. Formation of the Contract Q: When is K made? A: When  K’s  accepted/accept.mail  is  posted II.MAY BE impliedterms(implied  terms  don’t  actually  exist  in  K) A. Intent, Offer and Acceptance, Writing Q: WHERE is K made? A: Vancouver, where acceptance is made/completed = but sometimes a court is asked to DEEM/IMPLY terms in a contract to exist. Q: WHICH LAW applies? A: Canadian (in BC court) Court do not aim to deem terms as it tries to preserve+ try not to change meaning too far from (Similarities b/w cases: LAW  doesn’t  change  just  FACTS  become  more  complicated)   what’s  reasonable.   Hence Court will ONLY do this to: 1) give effect to the OBVIOUS (intent of the Q: ALWAYS Issue #1: Is there a K?|#2: breached?|#3: Damages? RUDDER v. MICROSOFT CORP. (Forum Selection Clause) party),2)where a statue allows the court to imply terms A: LAW: 6 elements (Intent, Offer, Acceptance, Consideration, Capacity, Legality) Issue: 1)If  the  pl.did  not  knowingly  consent  to  the  “forum  selection  clause,”  should  they  be  bound  by   its terms? 2)Should the OSC forcibly override this clase to ensure fair+equitable justice is served? (Can Eg. SGA (a set of implied terms deemed to PROTECT consumers. a)The sum of ALL these 6 elements form a contract. BKDK HOLDINGS LTD. v. 692831 B.C. LTD. (Contra Proferentem) If any one of the elements is absent, the contract COLLAPSES. Microsoft be granted a permanent stay of the class proceeding on the ground that: i) the parties have Issue: Are the express/implied terms sufficient to enforce the K terms? b.Contract can be ORAL or WRITTEN (2  exceptions:  in  BC  that  must  be  “written”  to  be  enforced)d to the exclusive jurisdiction/venue/of the courts in King County, and ii)Ontario is not the ▯1)K for LAND – sale, mortgage, or lease > 3 years, appropriate forum for the conduct of the proceeding LAW: when interpret K/statues, the court begins looking from plain to contextual meanings. If still 2)Personal Guarantee(parent/frd/wife promise to pay LAW:1)in E-commerce: web-wrap agreements set out of contractual terms, acceptance is made by vague, will favour the party who did not draft the contract. clicking  “accept”  on  approp.icon  and  Click wrap(aka Clip-through) agreements are treated as APP: the plain/literal meaning of the K are ambiguous and vague. Despite BKDK demands court to look at contextual analysis, they were define whether have lost Tech Cominco as substance. Hence reg.contracts+agreements w/multiple pages, 2)court will examine steps sellers took to bring terms to CherryWu 2012 © the court went to last resort – CONTRA PROFERENTEM and favoured Meridian as the K was drafted by Although  it’s  poss.  to  exclude  liability  from  breach of K/breach of statutory duty/negligence in TOR1. How does the K describe the deposit BKDK. innocent/negligently(no  knowledge,  unintentional),  CAN’T  exclude  liability  from   FUND.BREACH/FRAUD.MISREP/CRIMINAL NEGLIGENCE 2. Sophistication of parties (see if [email protected]/in equal footing) BLACK SWAN GOLD MINES LTD. v. GOLDBELT RESOURCES (Express&Implied terms) 3. Industry standard (reasonable if: 10% of purchaseP(residential), 20% on(luxury condo) Issue:1)Should the context related to agreement be factored into its interpretation? 2)Does loan from Transfer of Title and Risk under SGA Pegasus”rights  to  purchase” apply to the saidK, and shud it be interpreted as n issuance of equity Risk of loss follows title=most seller will indicate in the K when title will pass from seller to 4.plaintiff suffersno loss (/makes PROFIT) is IRRELEVANTif all above factors aremet. buyer (especially when transferring goods in different countries) ▯LD$ clause is Unenforceable if  it’s  a  unconscionable  “penalty” (grossly unfair). position?  3)Shud  it  be  implied  that  BlackSwan’s  holdings  be  topped  up  conditional  to  the  topping  up  of   = grossly disproportionate to any losses capable of pre-estimate Comptoir’s  holdings? Seller like FOB (esp.unascertained gds- “FOB”  (once put item on indep.carrier(ship/truck), (No apparent bases for the amount and intends to scare the weaker party into LAW:1)Any unfinalized agreement b/w parties in K form may be revoked/altered @anytime, 2)in cases it’s  now  in  buyer’s  obligation).  If the parties DO NOT agree/unspecified in contract when of  intense  negotiations,  final  K’s  strictly  interpreted  by  courts,  3)parties  to  K  don’t  show  accept.of   performance▯no basis to find where derived the large sum) title passes THEN SGA applies (SGA in default): ▯like forum selection clause, court likes LD(Save lots work) interpretation simply by being silent/show complacency,4)liberal interpretation cannot revoke terms Ascertained (specific) gds – NON-Breachingparty has 3 OPTIONS:1) Treat the K as OVER (repudiate),K discharged explicitly stated/alter their basic(literal)meaning 1)Sale: gd in deliverable state▯title transferred when K made (eg.perfect ring) APP: Despite GB  doesn’t  give  up  by  asking  the  court  to  look  at  3  pieces  of  contextual  elements  and mmediately. Duty to mitigate (pl) arises immed+retain the deposit, 2) Wait until the due told judge/court to DEEM that those terms exist,GB LOST ALL arguments 2)Agreement to sale: work needs to be done to put gd into deliverable state▯buyer takes date – if  K’s  still  breached  duty  to  mitigate  arises  on  due  date+retain  deposit,  3)  3)  Grant an title  when  work  done+buyer’s  notified (eg.ring needs to be re-sized) extension=get them to sign+sealed and watch out for CONSIDERATION MORAL: take time carefully draft your K(include approp.terms)  cuz  this  is  the  way  how  contract’s gonna be looked at. Context is merely interpreting express terms where implied terms is about Unascertained(unspecific/unidentifiable)gd–can be futuregds ▯buyer takes title when BLACKCOMB SKIING ENTERPRISES v. SCHNEIDER (Liquidated Damages: KNOW pre-set amt) DEEMING the OBVIOUS. gd’s  delivered  to  buyer/indep.carrier/bailee(transmission to buyer). Seller does not reserve Issue:1)Was there a breach of K,2)Did pl.breach the agreement by not clearing encumbrance on right of disposal (eg.chair ordered from catalogue) property b4 closing,2)will the 10%deposit provided by pl. be interpreted as a deposit/penalty? B. Sale of Goods Act (Implied terms) KOVACS v. HOLTOM (SGA – Risk/Title Transfer – Ascertained gd) LAW:1)As  def.couldn’t  fulfil  the  obligation,  there  was  an  anticipatory breach of condtion,2)If a party ▯used car, buyer asked seller for restoration. Before restore complete there was a fire foresees that breach of K may cause them harm, they may include these foreseen the K as SALE OF GOODS ACT (not applyto land) Issue:1)Is  def.liable  for  the  car’s  loss,2)What  remedy  does  the  plaintiff  have? mandatory  deposit,2)If  LD  clause’s  perceived  to  be  a  genuine  attempt  of  pre-est.damages, court will =a set of implied terms that deem to exist (only  way  to  get  a  remedy  is  when  there’s  a  IMPLIED   hold  that  it’s  a  deposit.  If  it’s  interpreted  as  punitive  in  nature,  it’ll  be  construed  as  a  penalty+declared   term). Purpose: protect consumers from unscrupulous sellers (gd for buyer, bad for seller) LAW: 1)Risk  passes  w/title:unless  otherwise  agreed,  gds  [email protected]’s  risk  until  title’s  transferred  to   buyer,  and  when  title’s  transferred  to  buyer  the  gds  [email protected]’s risk, whether delivery has beennvalid. SALE=where property/title in good passes from seller to buyer for money$$ consideration made/not.  2)if  there’s  a  K  for  sale  of  specific  gd  and  seller  is  bound  to  do  sth  to  gd  to  put  it  onto  f  condition  led  to  def’s  deposit  forfeiting  as  LD,  subjected  to  indus.std,  2)the SGA only applies to tang.goods”personal  property,  chattels,  anything  NOT  attach  to  land” “deliverable  state,”  the  title  does  not  pass  until  the  gd’s  done  and  notified  the  buyer. agreement specified encumbrance must be clear b4 effective closing date. Since the 1 closing date listed was June14th&encumbrances were removed well b4 that date, there was no breach of (NOT apply if deal w/intang“service/coprRight/trademark”  &real property ”land”) APP:1)title remained w/def. until the approp.maintenance had been done to the gd, purchaser had S.P. only  applies  to  land  (does  NOT  apply  to  service/employment  K  as  they’re not unique) been notified of its completion, as stipulated in SGA. As such, the risk of loss is born by def.+purchaserntractual term,2)a cash outlay is considered a [email protected] of K formation, not @time of K GOODS: “CHOSES  in  ACTION” is  entitled  to  repayment  of  funds  if  gd  can’t  be  delivered.2)since  the  gd’s  destroyed and the notSince the pl(BlackComb) gains by discharge(as they can then sell the property for in the position to perform his obligation as defined in theK(delivery of the property from seller to sig.higher mkt price), they wud have no motivation to penalize the defendant for not closing on the Eg. Suppose gave right to sue (trademark/copyright/patents/assignment of AR/corp.share agreement. Since the fee was calculated as a genuine pre-est.of damages @timeK was formed,  it’s   ▯Since  they’reNOT GOODS (so SGA does NOT apply) buyer), plaintiff is entitled to return of his money. Since the ruling is in favour of plaintiff,the also DREAM CARPETS LTD. v. SANDHEDRAI (Services – SGA NOT APPLY) liable for legal costs on scale3. considered a deposit regardless of the ensuing events(that pl.makes a profit!) th Issue:1)Does the def.hv a liab for damage,2)Does SGA apply,3)Will the appeal succeed? D. Capacity (5 element of a contract) V. Outside the Contract LAW:1)SGA applies only to gds that are of established merchantable quality,and NOT specific gds for 2categories of parties lack capacity to enter K: A. Parol Evidence Rule which  the  application  of  skill/work/labor    is  the  main  determinant  of  gd’s  value,  2)a perso1)Infants (s.19 INFANTS ACT) – anyone under 19 in BC is an infant. A K w/an infant is to  do  work+supply  materials  which  he  uses  will  be  of  gd  quality  fit  for  purpose  for  which  It’s  used,3)if   Parol Evidence Rule: court will not read into Kterms that were not expressly agreed to unenforceable against the infant but enforceable BY the infant against the adult(regardless whether @time K was formed. If  there’s a clear, unambiguous WRITTEN K + later one party alleges you buy a finishedgd(like a painting in museum),then SGA applies. adult knew they were infants). K made w/infant is unenforceable unless:i)other APP: the K was not a sale of gds but a K for labor/work/materials, so SGA doesNOT apply,2)the statue(eg.studentLoanAct/BC ResidentialTenancyAct) states so,ii)affirmed by infant on his/her there are further oral terms(which add to, vary, contradict, the writtenK) then ONLY the def.didn’t  provide  services  meeting  approp.std.  The  materials+procedures  employed  were  proven  reaching age of majority,iii) perform/partialy perform by infant within 1yr after turning 19, 4)not written K is enforced! be sub-par in contrast to indus-expectation. So awards will be paid based on mkt assessments. 3 exceptions to this Rule: repudiated by infant 1yr after reaching age of majority DIFFERENCEbetween Implied CONDITIONand ImpliedWARRANTY s.19.1 – student loan (govt agrees to lend$ for post-secondary, is to be repaid, and such agreement Oral evidence IS admitted to prove: =BIG DIFFERENCE in conseq.of breaching entered into by infants is enforceable by+against the infant to same extent as if s/he were an adult 1) Condition Precedent (Subject to clause – Montane case) @time the agreement was entered into) 2) Misrepresentation (made by plaintiff, false assertion of facts lures other party enter into the K) Condition=Major, essential term of a K 3)the existence of a COLLATERAL K with SEPARATE Consideration (you have 1 main written K, but got ▯if breach a condition,K is  “DISCHARGED”( all obligations in K are extinguished for BOTH parties) s.21 –Graning capacity (On an application, the court may order to grant infant: i)full capacity Non-breaching  party  can  “Walk  away”  from  K  +  can  SUE for either: (Collins case) or ii)capacity to enter into a K/class of Ks specified in the order if: another collateral K oral promises that has sep.consideration fromthe MAIN K). 1)for  infant’s benefits, 2)infants no longer need protection of court. Infants waive rights (transfer tohe collateral-contract oral promises: 1)Damages (CL$$), 2)Rescission (equitable remedy, only in breach of condition)! parents) via  Indemnity(but  infants  can’t really waive rights cuz they hv no capacity to grant rights Warranty=minor, not essential term of K G ENERAL TIRE CANADA INC. v. AYLWARDS LTD ( Peronal Guarantee –PAROL EVIDENCE RULE) ▯if  breach  a  warranty,K  is  NOT  “Discharged”  (Both parties must perform, still need to buy/sell) to  parents  since  they’re  still  kids) Issue: Should  pl’s  alleged  misrepresentation  automatically  discharge  the  def’s  liability? RE COLLINS (INFANTS ACT – FULL CAPACITY) LAW: 1)ParolEvidenceRule: when terms of a written are clear+unambiguous, arties are not permitted Non-breaching party can sue for damages only. Issue:1)IS  the  agreement  to  transfer  title  to  Ms.Collins  to  Simon’s  direct  benefit,2)Does  Simon  Collins  vidence outside of K to alter its fundamental meaning,2)exception to this include SGA SECTIONS ( breach  must  go  to  very  essence  of  item,  otherwise  it’s  treated  as  breach  of  warranty) require protection Infants Act? subsequent oral condition/cond.precedent(subject-to)/collateral oral agmt/unfinalized written doc. s.16 – Implied undertaking as to title+implied warranty ofquiet possession LAW:1)the [email protected] a person reaches majority at commonlaw is 19, 2)K entered into by those APP: the  court  finds  the  collateral  rep  “value,non-specific,and  incompatible  w/guarantee”.  Where   a)implied condition that seller has title to gds @time of sale+has right to sell (eg.stolencar!) under this legal age is unenforceable against the minor(though may be enforced by minor to against ambiguous agreements made b/w parties come  @odds/contrary  w/the  writtenK’s  express  terms b)implied warranty that buyer is to hv quiet possession of gd the other party),3)K made by person  who’s  an  [email protected]  K  was  made  if  unenforceable  unless  it  General Tire will supply goods to Debtor + in exchange Aylwards unconditionally guarantees c)implied warranty that gds are free from any charge/encumbrance( eg.lien/chattel mortgage) is:i)affirmed by infant on his/her reaching the age of majority(Joey,sis),3)Courts can order K payments  of  Debtor’s  account  to  GT”),  the  writtenK’s  terms  will  stand.  Hence,  the  oral collateral s.17 – Salesby description enforceable against a minor given that:i)the K directly benefits the minor,ii)the minor does not requireagreement receives no consideration so defendant remain liable for the balance of debt outstanding. protection under the Infants Act ▯IN this case, 1)implied condition that gd correspond w/description APP:1)the proposedK does nth more than offer direct benefit to mom @expense of the children. Eg. If you have a oral-contract  that  you  “UNCONDITIONALLY”  promise  something 2)implied condition that  it’s  insuff.for  bulk  of  gds  corresp.w/sample  if  gd  itself  do  NOT  also   corresp.w/description Granting  such  request  won’t  alter  the  contributions  req’d  by  dad(Mr.Collins)and  will  hence  provid=  you  can’t  have  condition  precedent  (DOES  NOT  MEET  1) any f.benefit/whatsoever. As such, the proposed confers no direct benefit to Simon and shud hence =  you  can’t  prove  diff.  consideration  ▯ no (DOESNOT MEET 3) s.19 – Sale by Sample (2:in a K for sale/lease by sample) NOT be ordered enforceable,2) at this time,Simon requires protection of the Infants Act to maintain SO BETTER TO USE (2 Misrepresentation – but  the  promise  is  so  VAGUE  that  you  can’t  tell  whether  they’re  right) a)implied condition that bulk correp.w/sample in quality his vested interest in trust in the trust created solely for his benefit. If @a later stage he wishes to Because  the  court  can’t  find  evidence  to  meet  the  3  exceptions, GT wins b)implied condition that thebuyer has a reasonable time to inspect all gds(compare bulk w/sample) transfer these benefits to his mom he may do so, but if he changes his mind he shud not be bound by GREEN BOX - Contractual Duies(So far-part Ito V) c)implied condition that gds be free from any hidden(latent)defects that make the gd an illegitimate agreement. =where the relationship b/w the parties is governed by a contract “unmerchantable”(unfit  for  any  purpose/not  saleable)  on  reasonable  examination  of  sample 2)Mentally incapacitated persons (whether  temporary  intoxication”alcohol  drunk/drug   B. Misrepresentation (common remedy:rescission) s.18 – Implied conditions as to quality/fitness dose”/permanent  disease  of  mind”). Law for both are the same: =a falseassertion of a material (imp) fact that induces the plaintiff to entercan be made : a)Fitness for purpose: buyer communicates expressly/by implication to seller the -must  pay  “reasonable  price”  for  “necessaries”( -to  avoid  liability  for  a  “non-necessary,”  must  prove:1)so  ill  did  not  understand  K,2)the  other  CENTLY – maker of statement honestly believes statement is true but gd’s  purpose,  w/”reasonable” precision+no patent/trade name, and  is  relying  on  seller’s nevertheless  it’s  false.  REMEDY: RESCISSION skill/judgement.  If  nth  said,  gd  must  be  fit  for  their  “normal”purpose party was aware of your [email protected] of K(if drunk,smell) (In  BC  once  title  to  “LAND’  passes  from  seller  to  buyer, the right to rescission is LOST) . ▯long as made purpose known to dealer, can return IV. Consequences of the Contract (KEY CONCEPT) So  if  rescission  is  unavailable,  NO  REMEDY  (suppose  don’t  want  damages) b)Merchantability: gds bought by description from seller are of merchantable quality 2)NEGLIGENTLY – arises where the maker of statement is careless – this person is in a “gd  for  normal  purpose”.  BUT  if  buyer  examines  gd  (examinations ought to hv revealed A. Discharge of Contract 4 ways to discharge a contract: (most freq.lawsuit:frustration+breach of K) position to know better – a higher duty of care is imposed. defects) =no implied conditions 1.Performance:both parties perform+happy, -an  opinion  given  by  a  “professional  (stronger  party/after  grad  fromBCOM” c)Durability:gds  will  be  durable  for  “reasonable”  pd  of  time,  regarding  use/circumstances =ABSOLUTE STATEMENT of FACTS. So be careful(silly realtor v.buyer relying on his advice) =this  is  why  lawyers  don’t  buy  warranties 2.Agreement:both parties mutuallydecide to end a K(no lawsuit), SLTN:  “This  is  my  opinion,  I  haven’t  done  the  research,  but  DON’T  rely  on  it” 3.Frustration (Saturley):if  K’s  “frustrated,”  K’s  discharged  but  neither  party  is  liable  to   C. Exemption Clauses “seller  not  liable  for  any  defect,  do  not  recog.any  breaches”. REMEDY:  RESCISSION  /or  DAMAGES  but  can’t  get  both s.20 – Exemption clause:limits  seller’s  liability  in  breaching  SGA  terms  (s.16-19) another(since  they  didn’t  cause  but  uncontrollable circums.causeK to discharge) Collins v. Dodge City (NEGLIGENT MISREP– AC-lacked car) Frustration: Supervening event (an unforeseeable/uncontrollable/beyond contemplation) Issue:1)did the agent engage in misrep,2)should court award the damages sought by pl.? To  be  enforceable,  seller  has  to  do  what’s  reasonable  to  bring  it  to  buyer’s  attention. event happens AFTER the K is made (but BEFORE completion)that renders K DAWE v. CYPRESS BOWL RECREATIONS(just like movie/train tix, long as reasonable bought to LAW:1)remedies for misrep: person need only to show s/he was misrepresented abt a material aspect buyer’s  attention/awareness  of  its  writdespite understand the terms/not, buyer is bounded by the K) perform OR made performance of K fundamentally different than intended. Frustrating of theK to receive the approp.remedy,2)purpose of damages: to rectify injured party+return them to event(eg.natural  disaster”acts  of  god”/death/wars/invasions/terrorist attack) must RELATE position  they  wud’ve  been  in  if performance was adequately provided by the offending party. Issue: 1)Didef.take reasonable care to inform the pl.of the exemption clause(or can we reasonably APP:1)whether/not  the  agent  knowingly  made  the  misrep,  the  agent’s  words_action  lead  the  pl.into  a   expect that the be aware of the clause) and reasonable attempt must be made to communicate to the K + NOT be EXTRANEOUS(impecuniosity”money-dealing”/hardship/man-made)as the exemp.clause, 2)should the said clause exempt the def.from liab to pl? they’re  within  your  control false  assumption  that  AC’s  included  in  the  vehicle.  This  was  a  material  misrep(altered  buyer’s LAW:1)court will  ask  what    reasonable  steps  mgmt.  took  to  bring  terms  to  cus’attention.  if  insff,  buyer   (Impecuniosity – frustration failed. Despite Lunds argue that oil-spilled on old incentive+ultimately purchased the vehicle that she otherwise wud not have), 2)in these house made him unable to sell the old house+finance for the new house so had to breach the new circumstances,  the  pl.shud  be  awarded  he  costs  req’d  to  install  AC  that  she’d  be  in  the  same  position   not  bound.2)if  there’s  no  onerous  clause+purchaser  new/shud  reasonably  now  its  terms,  thenbuyer’s   as if AC was installed @the given purchase price. She only claimed 1000 but could’ve claimed more! bound  by  all  terms.3)if  an  exemp.clause’s  communicated to a party+party consents to clause(either byuse’K.  This  is  extraneous  however  as  it’s  impecunious(dealing  w/money)  and  financing’s  within   explicit  acknowledge/implicit  continuew/agreement)the  party’s  bound  by  clause  and  it’ll  be  strictly   control  as  he  can loan to pay for new house. So such unforeseeable oil-spilled does not make K)FRAUDULENTLY – a  deliberate  attempt  to  mislead  either  by  “COMISSION”(deliberately   enforced  in  court.4)if  aware  that  there’s  writing  on  tix/K  and  is  able  to  comprehend  this  o perform. lying)  or  “OMISSION”(  failure  to  disclose  “latent/hidden”  defect  that  you’re  aware  of  at  time   Employment Contract (DiseaseDevelopment – frustration failed) writing(EXCEPT CAPACITY), s/he is bound by any conditions sated within this writing(whether s/he is of  K,  except  “psychological” defect) UNLESSPATENT/obviousdefects: CAVEAT EMPTOR actually aware of ithe implication/not). Issue:1)Did  def.  breach  any  terms(express/implied)  in  the  employment,2)Did  def’s  illness  consti(“Buyer  Beware”)  ▯ nullifies exclusion clause**) REMEDY: RESCISSION /or DAMAGES APP:1)the  clause  was  printed  in  bold  letters  directly  on  tix’front,  numerous  signs  were  placed  rating event(thus terminate the existing emp.K),3)If no such frustration is evident, was adequate Realtor Inspection(found several imperfections @time of inspection – FRAUD. MISREP) throughout ski area indicating exempts itself from any accidental injury(including the area notice of termination provided? Issue:1) Did trial judge err in his initial conclusion,2)is there any evidence of fraud/misrep? injured).  As  well  the  a  learned  indiv.who’s  clearly  literate,  we  can  def.expect  he’d  be  aware  of  this  e: court will not read into Kterms that were not expressly agreed to @time K LAW:1)contracts regarding real property(land): difficult in relying on misrep.for remedy, even when clause. 2)given that the def.makes a reasonable effort to inform the pl.of the exemp.clause+pl.agrees was formed,2)Frustration: supervening+uncontrollable+unforeseeable event that render performance the buyer can prove misleading statements made by seller, cuz misrep’s most common to continue the transax/relationship, the pl.will assume all risks associated w/the contractual imposs or fund.different from that agreed upon in K remedy/award(rescission) is lost @time ofK(as title transferred).2)exemption clauses in land typically activity(continuing  while  being  aware  of  the  clause’existence  equates  to  consenting  to  the   APP:1)since  nth  more  than  an  “agreement  to  agree”  on  retirement  benefits  @a  later  date  was   exempt previous/subsequent/collateral statement that are made by either party from being given exemp.clause,whether or not explicitly stated. provided,def’s  lack  of  providing such benefits did not constitute a breach of warranty/condition. Theconsideration CASES where Exclusion clause APPLIES: court will not add terms to the K that was not expressly agreed upon by 2parties. 2)the def.could APP:1)nth in appellant’s council/appeal court concluded that trial judge erred in coming to the correct 1)dealer sell new gds  to  “ordinary consumer”▯ ex.clause NOT applies (dealer NOT contract out of SGA)sonably foresee the develop.of this terminal disease akong w/the clearly presented lack of conclusion so the decision is upheld,2)as respondent’s notice of the existing “patent” defects suggests employable  skill  on  pl’s  part,  adequate  notice  was  calculated  as  7.5months(due  to  early  retirement   ordinary consumer: not purchaser of resale/bz use/corp,indus,comm.use/trustee in bankruptcy,liquidator,sheriff) that there’s neither fraud by commission/omission. 2)dealer sell new/used gds to buyer for bz/resale/trustee etc▯ex.clause applies(dealerContract out SGA) pl has been working for def.for majority of her career). The damages awarded:amt net any pymt WEINMAN V. BRINKMAN (FRAUD.MISREP) 3)dealer sell used gds to ordinary consumer▯ applies(seller can exclude liab from SGA) alrdy provided by the def. Brinkmans (seller) sells house to Weinman (buyers). However, in this K, there was an exclusion clause 4.Breach of CONDITION (West Coast Transmission):can be anticipatory breach of 4)no dealer but private sale▯ exclusion clause applies “seller  not liable  for  misrepresentation”.8 days after completion W notice water leaking into basement Exclusion clause NULLIFIED by(completely binding UNLESS): condition/breach implied terms in SGA. Most common remedy:rescission/damages. $10,400 to FIX.Buyer’s suing seller for damages$$ for misrepresentation and says seller failed to -Damages recoverable: those that are reasonable foreseeable at the time of K. disclose a hidden/latent defect seller was aware of at time of sale(Fraudulent misrep) (this is the ONLY 1)FUNDAMENTAL BREACH OFK– breach  ofK  is  so  serious  that  the  gd’s  workable  nature’s  -Consequential damages: damages NOT foreseeable, and therefore NOT recoverable. way to win due to the exclusion clause).▯ however in BC when buy house from realtor, allhave same NOT repairable.Such  breach(like  breach  condition)  major  term,  K”Discharged”,  money/rescission PORELLE  v.  EDDIE’S  AUTO  SALES  LTD (dealer sold used car to buyer(Porelle) and included exclusion clauseto mitigate: pl. is  expected  to  mitigate  (do  what’s  reasonable  to  lesson  losses) exclusion  clause  (protect  seller  from  innocent+negligent  misrep’s,  but  will  be  nullified  if  there’s   JEDFRO INVESTMENTS (U.S.A.) LTD. v. JACYK (noneof the 4 apply)▯re-READ! evidence of fraud – the position where Weinman is in!) But since the leakage was evident in basement which Porelle signed. Despite later found out car engine had prob.and to sued in Fund.breach of K, Porelle failed do despite seller didn’t explicit say aboutdefects, the defects were obvious enuf so  there’s  NO  FRAUD   cuz the car is STILL repairable) B. Breach of Contract and Damages and the buyer(Weinman) pays for own losses and seller (Brinkman) will not be liable. Issue: 1)was  there  a  breach  in  SGA’s  “implied  term  as  to  fitness”condition,2)will  the  exemp.Remedies for breach( depends on major/essential term: condition or minor term:warranty or land) the K negate the implied terms of the Act? SLTN to BUYER BEWARE In house purchase:indep.inspection/examination ORexpress/implied agmts LAW:1)s.18a-implied conditions as to quality+fitness applies to used terms only in absence of an 1)Damages:  purpose  is  to  put  position  as  s/he  would’ve  been  if  K  has  been  properly C. Unconscionability (blend of both duress/undue influence) performed by breaching party. Damages avail.on breach of K must be reasonably exemp.clause that contracting parties have consented to,2)terms agreed to in contractual foreseeable to BOTH parties as being likely conseq.of breach @time of K. UNDUE INFLUENCE– MENTAL domination by 1party over another to the extent that the negotiations(  alter/negate  these  implied  terms,  providing  it’s  not  during:  a  retail sale “weaker”  party’s robbed of his/her free will in entering a K. of new gds to an indiv.for non-business use. 2)Equitable remedies:S.P.(land)/Injunction(stop)/Rescission(K unravelled)/Quanta APP:1) SGA s.18 in reference to”implied  warranty  as  to  fitness,”  if  an  express  condition  uit(the amt you merit if not specified @K) (but weaker is NOT associate with capacity (intelligence/lack capacity to understand the K), but being forced by position (can be gender/age/education/socio-econ standing/whole cocktail of all of them). agreed to by the contracting parties is inconsistent w/SGA’s implied warranty, the implied term is WESTCOAST TRANSMISSION v. CULLEN (Damage: DON’T  KNOW  how  much) waived. As the conditions of the were consented to by the pl.(by means of signature)the Issue:Is  the  def.liable  for  conseq.damages(in  this  case,  the  rental  fees  incurred  by  Cullen’s  client,  relationships, undue influence is PRESUMED pl.effectively exempted the def.from any liab for a lack of fitness for purpose. The court must uphold WestCoast)? (eg. doctor/patient, lawyer/client, financial advisor (accountant, adviser)/client, this exemption.2)in a reference to the sale of used gds(as opposed to the sale of new gds),the LAW:1)damages are meant to be equal to the amt that wud return the injured party to the position principle/agent, trustee(once you graduated fromBCOM) /beneficiary warranties/conditions implied by the Act only apply when there’re  no  express  terms  within  theKthat  hey’d  be  in  presuming  the  other  party  performed  their  contractual  obligations,  and  are  limited  HOWEVER employer/employee does NOT fit here). comes  at  odds  w/these  implied  terms.By  seeing  the  exemption  clauses  printed
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