ADM4716 Final: COMM4716 – Final Exam Review

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COMM4716 – Final Exam Review
Module 1: Fundamentals of Torts
Tort Law
-Compensation of civil wrongs by the payment of damages
-Concerned with the loss or harm suffered as a result of someone else’s wrongful activity
Differences Between Tort and Crime
1. Different Objectives – Compensation of victims for their losses v. punish wrongdoers
2. Different Forms of Legal Proceedings – In tort, the injured party begins action v. In criminal,
the government begins legal action
3. Different Names – Tort: Plaintiff and Defendant v. Criminal: The State and the Accused
4. Style of Cause – Tort: _____ v. ________ v. Criminal: R. v. Samson
5. Burden of Proof – Tort: Plaintiff must prove case based on balance of possibilities v.
Criminal: Must prove beyond reasonable doubt
6. Result – Tort: Liable or unliable v. Criminal: Guilty or not guilty
7. Difference Means to Reach Their Respective Goals – Tort: Monetary reward v. Criminal: Fine
or jail sentence
Categories of Tort Law – According to the state of mind of the wrongdoer
-Intentional Torts - Whether wrongdoers willfully committed the act. If so, they are at fault
and must compensate the victim even if the victim has not suffered a loss
oThey are civil wrongs which involve a deliberate interference with the person or
property of another
Intentional interference
with the person
Assault (Consent, self-defense)
Battery (Consent, self-defense)
False Imprisonment (Lawful Authority)
Defamation (Truth, absolute privilege, qualified
privilege, fair comment)
Invasion of privacy or intrusion upon seclusion
Intentional interference
with property
Trespass to land (Permission, legal authority)
Private nuisance
Defenses - BOLD
-Negligence –Whether or not they breached their duty of care and the standard they owed to
the victim. If so, they are at fault and damages will be awarded
oHouse of Lords in Donoghue v. Stevenson
oAllows people to seek compensation from a financially solvent party who may not
be immediately related to the injured party
oIn order for the victim to sue someone in negligence, 4 requirements must be met:
a.i. The author of the harm must have owed a duty of care to the victim
a.ii. The author of the harm must have breached the standard of care she/he
owed to the victim
a.ii.1. Reasonable Persons Test - The standard of care is
breached when a reasonable person, thinking about the
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consequences of his/her actions, would think that this type of harm
would probably result from his/her actions
a.ii.2. Falls below what a reasonable person would have done in
those circumstances (time, place, person)
a.iii. The author of the harm must have legally and physically caused the harm
a.iii.1. “But for” Test  But for the author’s actions the harm
would not of occurred, must’ve been reasonably foreseeable, not
a.iii.1.a. What is the type or nature of damage that is
reasonably foreseeable? Thin Skull Rule
a.iii.1.b. Are we exposing the defendant to liability for an
indeterminate time to an indeterminate class? Anns Test
a.iv. The victim must have suffered a loss or some kind of harm
a.iv.1. Must be recognized by the courts
a.iv.2. Loss can be physical damage, financial or mental disorder
oSpecial Situations: Occupiers liability, innkeepers, or strict liability
oDefenses: Partial liability, and not FULLY responsible for his/her actions
-Vicarious Liability – A third party who has done nothing wrong is held to be liable for the
oEmployer/employee relationship
Tort Law in Business Context
-Professional Negligence
oEntering into a contract for professional services = contractual duty of care
Parties can use the contract to limit the scope or extent of the professional’s
duty of care and the standard of care owed by the professional to the client
Module 2: Introduction to Contracts (cont’d.)
The Foundations of Contractual Obligations
-The law will enforce these agreements if one party does not execute their obligations
-Freedom of Contract
oAgreement = offer and acceptance
oContracting parties bargain from a position of equality
oLinked to doctrine of laissez-faire economics
“Liberalism, Individualism and Contract Theory” – Pallard
-According to this ideology, people, because of their human nature and individuality, are free
and have the right to organize their lives in a manner that best suits them
-Legal individualism takes the idea of individual freedom and applies it to the field of law. In
the contractual scheme of things, all obligations must be freely assumed; obligations cannot
be imposed upon individuals who have not accepted them (Law of Contracts)
-The theory of contract law also requires that only promises voluntarily assumed in return
for other promises can be enforced, and thus that only the actual parties to a contract can be
required to comply with it. This is referred to as privity of contract
-John Locke (1632-1704) and Jean-Jacques Rousseau (1712-1778) – Contractual Obligation
oLocke and Rousseau explained the origin of social obligations by calling on the
notion of social contract. To them, the social contract is the result of a pact between
two persons of equal standing, a product of human will, which results in the
formation of society and its government. It is this original pact which justifies the
social obligations of people
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Capacity to Contract
oMinors are bound by their contracts for necessaries and for beneficial contracts of
oFood, clothing, shelter, medical, dental, and legal services
oBeneficial contracts of service are agreements that allow minors to develop
themselves, such as learn a trade through an apprenticeship
oIn all other instances, minors have the choice of upholding or repudiating the
contract that they have made with another party
oIf minors choose to enforce a contract that is not for necessaries or is not a
beneficial contract of service, the other party is bound by the contract
Not bound by their agreements, but the adults with whom they
contract are bound
oThe general rule on the capacity of minors is that contracts by minors are voidable
at the option of the infant
-Insanity and Drunkenness:
oSimilar to minors
oTo qualify for this protection, it must be shown that the person could not
understand the nature of the act being performed
oBurden of proving incapacity on the basis of insanity of mental incompetence rests
with the person claiming to be incapacitated (present evidence)
oTo escape contractual liability, the person must prove not only insanity but also that
the person he was dealing with knew, or ought to have known, of the incapacity
oIf successful, a trustee will be appointed to handle that person's affairs
oIndividuals who lose their ability to reason through intoxication, whether from
alcohol or drugs, are treated the same way
oThe person trying to escape a contract on the basis of drunkenness must also be
able to show that, on reaching sobriety, the contract was repudiated (rejected)
oThis requirement also applies to insane people who regain their sanity
oTheir capacity to contract is determined by the legislation under which they are
oIn some jurisdictions, can limit their capacity to contract by stating such in their
incorporating documents
oEven in those jurisdictions, people dealing with those corporations are affected by
that limitation only if they have notice of it
oOther corporate bodies are created by special legislation (private companies, crown
Corp, other government bodies that have been created to accomplish particular
government purposes
oCapacity depends on the legislation creating them
oWhen at war, any contract with a resident of an enemy country is void if detrimental
to Canada
If not detrimental, suspended
oRepresentatives of foreign governments such as ambassadors and their families
have been immune from prosecution in our criminal courts and continue to be
oCapacity of Indians -- limited by the Indian Act s. 89
-Legality of Object
oBefore the courts will give legal effect to a contract, the contract must have
a legal object
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