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 pl.to 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 f.security+relieve 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 (eg.land) 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 def.by 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
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 orig.lease 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 insuff.to 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 conseq.in 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 def.is 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 def.is 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!)
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 accord.to 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”(eg.food/cloth/house/mef/transp/edu)
-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 imposs.to
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 pl.to 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 pl.is 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 pl.got 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 pl.is 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▯ ex.cl 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 pl.in 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(eg.exemp.cl)can 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)accord.to 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 exemp.cl 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