COMM 393 Summary of Laws.docx

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University of British Columbia
COMM 393
Deborah Meredith

COMM 393 Summary of Laws Equity - Plaintiff can only seek remedy in equity if: 1) $ is inadequate or 2) Subject matter of contract is unique - plaintiff must act quickly (quick feet) - and not be at fault at all (clean hands) Liebmann V. Canada Law: CFAO20-53 - Foresees the possibility that certain personnel may be restricted from participating in peacekeeping operations due to the cultural, religious or other sensitivities of the parties or host country Law: Section 15(1) – Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability Law: A court determines whether or not there was discrimination using three broad inquiries: 1) Does the law draw a distinction on the basis of personal characteristics or fail to take into account the claimant’s already disadvantaged position resulting in differential treatment? 2) Does the differential treatment discriminate under section 15? 3) Is the claimant’s dignity demeaned? Law: Section 1 of Charter – Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society R V. 279707 Alberta Ltd. Law: Kienapple Principle: Accused cannot be convicted of two offences where they both arise out of virtually the same facts Law: S. 52 of Competition Act: misleading advertising will occur when a materially misleading representation is made to the public in the promotion of a product or service. If the representation could influence a consumer to buy the product or service advertised, it is considered to be material Law: S. 57 of Competition Act: relates to "bait and switch" selling and prohibits any advertisement of a product at a bargain price that the advertiser does not have in a reasonable quantity. The advertiser, however, will not be liable where it can be established that: the non- availability of the product was due to circumstances beyond control; the quantity of product obtained was reasonable; or the customer was offered a rain check. Formation of a K - Must have: Intent – invitation Offer (offer is gone if one of the parties are insane or dead, counter offer) Acceptance – how? (Postal acceptance rule, mirror image rule) Consideration (bilateral, unilateral) Capacity (legal, intoxicated, mental), Legality - Steps: 1) Do you have a contract? 2) Is it breached or frustrated? 3) If breached, what are the damages? Intent - Both parties must have intent to be bound by their promises - The law presumes intent to exist where the parties are strangers (in commerce this is usually presumed to be the case) - The law presumes no intent in K between close friends and family members - Law: would a reasonable person looking at the outward conduct (not what they are thinking) of the parties say they showed intent? Offer - Offer = “Proposal” + “Intent” - Must clarify at least 3 items: Parties, Exchange, Subject matter of the K - Once it is accepted, it is a K - Invitation: a proposal that lacks intent – cannot be accepted; it invites offers - Offer lapses/ expires when: - the offeree fails to accept within specific period of time - the offeree fails to accept within a reasonable period of time if not specified - when the offer is rejected (by offeree) or revoked (by offeror) - when a counter offer is made - when either party dies or becomes insane before acceptance Acceptance - Law: Mirror Image Rule: Unequivocal acceptance of ALL the terms of the offer without change - Offeror controls terms of the K, how long offer is open for, how acceptance is to be made - If offeror outlines a mode of acceptance, the offeree must follow directions or else it is a counter-offer - If offeror does not outline a mode of acceptance, the offeree replies the same way the offer was made to you, or ask how they want it - Law: Postal Acceptance Rule (telegrams too)– If the offeror either stipulates acceptance by mail, or makes offer by mail without stipulating, then acceptance is complete when the letter is posted (dropped in the mailbox). This is true even if letter gets lost. - Offeror can change the rules – “Complete when received by me”  must be put in offer - No law for Fax - No law either – must specify - revocation by mail is effective upon delivery to offeree’s usual address Rudder V. Microsoft Law: Contract terms on only part of the screen still count – like flipping a page Law: Clicking “I Agree” means you agree with all the terms of the contract Law: Forum selection clauses will be found binding by the judge; if there is no forum selection clause, look at these factors: 1) in which jurisdiction are the facts situated, and look at convenience and expense of trial in either jurisdiction 2) whether the law of the forum country applies and how it differs from the domestic law 3) the strength of the jurisdictional connections of the parties 4)whether the defendants attempt to enforce forum selection clause is genuine or an attempt to obtain a procedural advantage 5) whether the plaintiffs will suffer prejudice by bringing their claim in a foreign court Montane Ventures V. Shroeder Law: Condition Precedent - if contract is “subject to” something, the operation of the K is suspended until event is fulfilled. Once fulfilled, the K is binding; the parties will document this in an “addendum” Law: Addendum – removes the condition precedent - the addendum must not have new terms, or else this can be seen as a breach or a counter offer, which would terminate the original offer Law: Making an enquiry can be seen as merely an enquiry or a counteroffer  look at the “intention” from a reasonable person 1875 Law: Gifts are enforceable by law Law: Legal purpose of a red seal is to make a promise binding without further consideration being necessary Hong Kong Bank V. New Age Graphic Law: Consideration can be unilateral (promise for a act/service) or bilateral (promise for a promise) - without something in return, a promise is a gratuitous promise, has not legally binding - promise can be bound with red seal Law: A feeling (i.e – financial security) is enough to be consideration, no red seal and no consideration argument is invalid Equitable Estoppel Law: Equitable Estoppel – gratuitous promises could sometimes be enforceable by law if certain conditions are met: 1) There must be a pre-existing K 2) One party then modifies the K by making a gratuitous promise, which can be orally expressed or implied by conduct 3) The other party relies on this promise and changes their conduct 4) The other party suffers hardship if promise is not kept 5) Law of equitable estoppels can only be used as a shield, not a sword SRB V. Maritime Law: Express rule in a contract will override the postal acceptance rule Interpretation of Express Terms (Terms in the K) 1) Dictionary/Literal definition 2) Context – in the industry, etc 3) Contra Proferentum – Always decide the party that wrote the contract Law for Implied Terms - Deemed by a court to exist - Court will only imply a term to give effect to the obvious intent of parties - “Prima-Facie” – Something so obvious that if a bystander mentioned it during bargaining, the parties would say “of course!” Sales of Goods Act - Oriented to protect consumers - Doesn`t apply to gifts, services, barters (goods for goods) only applies to tangible goods - 2 types of properties 1) Real Property – Land and whatever is attached or affixed to the land or is growing on it 2) Personal Property – anything unattached or unaffixed i) Tangible personal property – something that can be picked up and moved “chattel” ii) Intangible (things in action) – trademarks, patents\ - S. 16 - Implied condition that the seller has title to the goods - Implied warrantee that goods are free from “charges or encumbrances” e.g) mortgage, lien - if buy a house with a mortgage, can’t sue for the house, only sue for the mortgage - S. 17 - Implied condition that in a sale by description the goods must correspond with the description “breach must go to the very essence of the goods” - S. 18 no implied warrantee or condition to the quality or the fitness of the goods – unless: a) Communicate your purpose with reasonable precision b) what seller chooses for you must influence decision, and seller usually deals with these goods c) there is an implied condition that the goods will be durable for a reasonable period of time having regard to the normal use - S. 20 - if a dealer sells new goods to an ordinary customer for personal use, then teh seller may NOT exclude liability for breaches of sections 17-19 of SGA. If there is a breach of sections 17-19, the seller cannont rely on an exclusion clause in the K – the exclusion clause is simply boid - if the dealer sells used goods to an ordinary customer, the dealer MAY include an exclusion clause, excluding liability of sections 17-19 of the SGA. - the exclusion clause may be nullified because of a fundamental breach of K - where the breach is so serious that the workable nature of the good sold is destroyed (cannot be repaired) - if the dealer sells new or used goods to a business, the dealer MAY include exclusion clause Kovacs V, Holtam - S. 23: If the seller still has work to do, he is reliable until he notifies the buyer. Once he does that, ownership is transferred even if possession isn’t, and the person who owns it is liable for damages. Dawe V. Cypress Bowl - Law: in the case of an unsigned or signed but unread K, as long as the seller has done what is reasonable to bring the terms and conditions of an exclusion clause to the attention of teh buyer, the buyer is bound by the terms - Law: Exclusion clauses do not apply: (Porelle V. Eddie’s Auto Sales) - where the seller has done what is reasonable to - - bring to attention - where there is evidence of gross or criminal negligence – only foreseeable consequence is serious injury or death - where there is fraudulent misrepresentation – where the seller deliberately misguides teh buyer and the buyer relies on that and is induced to enter the K - where there is fundamental breach of K Difference between a Condition and a Warrantee (Legal def’n) - Condition: an essential term of a K - break of condition discharges the K  all obligations are extinguished - non-breaching party can walk away from the K and sue for EITHER: 1) $ Damages 2) Rescission – unravels K back to where they want it to be (before K was made) - Warrantee: non-essential term of a K - a breach of warrantee does not discharge a K, both parties still must perform - only remedy is $ Capacity - Law protects 1) Infants – anyone under 19 in BC 2) Mentally Incapacitated Persons - insanity: unable to understand basic terms of K, can be temporary or permanent - intoxicated - adult can never sue infant to enforce K, but the other way around is okay -k’s are binding if it is the infant’s option - some K’s are binding if under another enactment: mortgages, student loans - binding if affirmed by infant when they turn 19 - binding if not refuted by age 20 - Even if intoxicated, there’s persons must pay for a “reasonable” price for necessities (food, transportation, clothing, lodging, medical, legal advice) - for non-necessities, can only avoid liability if a) insane/intoxicated person can prove that he was incapable of understanding K b) the other party to the K was aware or can tell of his or her condition at the time of the K Discharge of K - When all obligations of the K are extinguished 1) Performance – happy ending 2) Agreement – both parties agree to end K 3) Frustration 4) Breach of Condition Frustration - Law: to prove that a K is “frustrated”, plaintiff must prove: 1) There was a critical, unforeseen event, not within contemplation of the parties; an event that is not the fault of either party e.g) natural disaster, act of god, terrorist 2) the event happens after K is made (supervening event) 3) event makes K impossible to perform or radically different than that intended 4) - If ther
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