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Management and Organizational Studies
Management and Organizational Studies 2275A/B
Bill Irwin

Mos 2275 – Lecture 2 What is the law? -rules -widely applicable -enforced/ consequences -government or state (subset of rules that are imposed by the government) example: morgan -> abortions *sometimes grey paul magner -> store close sunday What should the law be? Legal positive: might makes right (can enforce then law) -must be element of enforcement or just suggestion Natural law theorist: law out there is not human made – every attempt by humans to make law is just an approximation of THE law (some are morally permissible some not) -> example: religious ppl -not agree :law is measure by how much socially utility is creates Legal realist: sceptic -> arbitrary -unfair When looking at the law: 1) What should the law be and why? 2) Cast wide net – what is policy behind, whose interest being protected. who is benefiting? 3) Think about end game, what does the solution look like? Where does the law come from? -constitution -trumps all = in Canada government must obey law Three components 1) written : charter, constitution act Constitution act – 91 (federal can legislate -> banking criminal, postage, immigration )& 92 (provincial -> health care, education, local or private nature) = Division of power -> federal & provincial government -> government can't do the other one -> federal get whatever not on lists (ridigulouls) & all over lap (paramountcy) 2) oral : customs and conventions (ex – party with most votes) 3) international treaties (NAFTA) -statutes/legislation (comes out of parliament) -change when government decides to change them (new ones typically) -don't know -> go to cases & look for predictability -common law/cases -> precedent (we will follow existing cases aka treat like cases alike) -come from cases that have been decided -benefits of precedent: consistency, continuity, efficiency, fairness, predictability -disadvantages: never the same (world diff place tmrw) , bad law, rigid (how change then) *social values change & law drags behind Deal with never same: give judge ability to differ Deal with bad law: if trial court makes bad -> Ontario court of appeal will over turn Deal with rigid: allow courts to deviate from own decisions -applicable law when so many cases - use/help to interpret statutes but legislation trumps precedent Civil law: Non criminal Criminal -> state vs accused NEVER two private parties, retributive justice (punishment & deterrence), burden of proof = beyond any reasonable doubt (taking away liberty) Civil -> person (private party) vs person, distributed justice (allocate propriety & wealth), burden of proof = only have to tip Common law: precedent Charter of rights and freedom 1982: lists of rights and freedoms guaranteed to everyone in Canada example: mobility, language, credit rate, run for office, vote, free from discrimination, free speech, -NEVER absolute -> not unlimited -> right of individual vs state or society -only government or state (human rights code does that( 33 and 32 not with standing clause -> government can opt out -only subject to reasonable limitations as can be denounced strongly justified in society aka must be limits -> court decides what limits are (look in box in book) Mos2257- Lecture 3 -now innovations is whether it can be commercially exploited not on the benefit to society -rich ppl make the laws->keep them rich (example: capital gains taxed at lower income) -free market as created by us -> not nature -if there was then it would require bad companies to fail SCC Courts make decisions/settle disputes, private ppl or public(denying a permanent) -> most are public/open (justice must be seen done) Trail court : jury, witness – result = judge make decisions on facts and law (evidence) Appeal Court: don't hear or see evidence only assess on lawyers – appeal on matters of law (too much weight, not enough to that, evidence emitted) -cannot agree matters of evidence Litigation: cases that get decided in court -> very ridged process -> very formal (advantages consistency | disadvantages in • Jurisdiction-> find out where to sue (plaintiff) (pie vs delta) • Pleading-> documents that give rise to litigation ◦ starts with statement of claim (you owe me 200 we had contract) ◦ defender has time to file a defence ▪ counter claim: owe them money ▪ cross claim: not responsible but someone else is • Discovery-> everything/documents that will be put forth in court must be seen by all clients (contentious) ◦ ether side can make a motion (move trial, witness be added etc.) ◦ per-trial motions • Trial -> strict order and formal *burden of prof lies on plaintiff ◦ plaintiff will go first and present evidence (facts are as they see them) ◦ argument (review of cases, plaintiff thinks are similar) ◦ defence can cross examine -> doesn’t really have to do anything ▪ if does -> repeat & present argument ◦ decisions -most settle before trial (in discovery normally) -> all could be bluffing until you show up to trial and once that process is completed everyone knows where they stand -incentives to settle cause court wants ppl to settle • Enforcement -> can pay you but wont = another legal claim -> as difficult as judgement in 1 place ◦ examine in aide of execution : defendant in under oath ◦ garnish amounts that are owing to them (wadges, or bank account) ◦ seize property and sell it -> things that cant are furniture, tools, vehicles less than 5g's -monetary cost: enormous amounts of money typically spent -> (1) legal expenses (example pay experts, pay lawyers etc) -non monetary costs: cause inconvenience or money in future -> (2) relationships (manufacturer, landlord etc have to find new one) -> distraction (take away from business goals/operations) -> (3) value of closer ADR (alternative dispute resolution): • negotiation: parties hash out and resolve *goal of both is to negotiate summary • mediation: negotiation with assistance • arbitration: process will result in decision, but much more condense -> involves both putting case forward -advantages: costs, convenience, time, private, flexibility (do when convenient) -disadvantages: might get bad decision, can't appeal, no precinct -must be consensual Risk Management 1. Identify risk (gonna be sued etc) 2. Evaluate risk (likely hood of harm and whats the $) 3. Plan - assume (allow), avoid (only have bar codes), minimize (hire someone to look), shift (insurance) 4. Do Insurance • powerful force in driving risk management (hockey arena) • based on actuarial principal -> spreading risk over large population • have to have insurable interest (example: can't insure someone else life or car) • terms of good faith on both parties ◦ insurer has to pay ◦ insured has to be honest *types of insurance Moss 2275 - Lecture 4 What is a contract? -promise between two ppl, considerate -enforceable ion on both sides -essence = exchange/deal/bargain -exchange of promises that law will enforce Why spend public money enforcing private obligations? (why have contract law) -good for economy/business ->promotes trade -if didn’t enforce contracts = basic economic system -Heart of capitalist system Why enforceable (credit card)? -voluntarily agreed Assumptions made 1. Contracts voluntarily entered are fair 2. Ppl wont enter unless they receive a benefit Free market must allow contract between two willing parties -> fairness does not matter • Validity (legally enforceable) of contract is NOT based on fairness, rather; *capacity, legal ◦ Consensus (agreement) -> offer & acceptance ▪ OFFERS price tag or flier (invitation to treat/suggested) -> offer at cashier • offer accepted as offer when received/communicated • offer comes to end when rejected (gone forever), counter offer (rejection & new offer) *cant go back revocation (withdraw) any time before acceptance (even if set time cause no consideration -> if paid to leave open then has consideration = contract (option contract -> promise to buy for specif time)), expiry, death or insanity • how to make: communicated (email, phone, writing) ▪ ACCEPTANCE: stipulate manner of acceptance • if don't (email then email back or any reasonable method) • silence? Cannot constitute ◦ rogers did it for cable (clause from time to time aka you must opt out)-> backfired ◦ course of dealings • auction = offer then acceptance when say • effective when received (exception: post box acceptance = when mailed) *not received* ◦ revoke through phone call ◦ make second offer conditional (if revocation effective) ◦ Consideration -> something of value going to both sides ▪ not amount -> if something of value ▪ past consideration = NO consideration (wash car – gratuitous) ▪ Something you previously had (agree to pay $ for him to teach) ▪ exceptions • seal: binding with no consideration (red sticky) • promissory estoppel: some circumstances, gratuitous are enforceable (legal relationship (lease), promise not to enforce legal right (landlord saying wont kick out), reliance (don't do repairs)) ◦ tenant and landlord – repairs -> says will extend -> kicks outs ◦ only used as defence (tenet leave voluntarily then tries to sue) not plaintiff ◦ Intention (deliberate) ▪ Objective standard: would a reasonable person intended to be legally bound (cases/in circumstances) • Why? Easier cause hard to prove what someone was thinking ▪ presumptions = things not needed to be proved (rebuttal can be proved other way) • example: sign contract that says parties don't intend to be legally bound, pick up kids from school - confidence comes from cases that continuously hold this true (none go against) Terms of contracts -express terms -implied terms *parole evidence rule: oral testimony -> so many exceptions don't really take seriously Conditions • precedent: must be satisfied in order for parties to have legal obligation (pay if i get osap) • subsequent: parties have legal obligations until conditions met (bar tender and pay until resign) Exclusions of liability: entering contract thrust of with wont be liability know about and unambiguous = will enforce *waivers and exclusions court will not enforce (example: tubing drunk and he signs waiver becomes paraplegic-> no capacity | white water rafting) MOS2257- Lecture 5 -writing down your goals is the start to strategic thinking • SMART goals Contracts Consensus – O &A *VOID if missing any of these Consideration Intention Capacity: have to legally be able to enter contract *VOIDABLE (contract but one party can escape) • age ◦ age of majority set by provincial statue – not enforceable against minors ▪ exception: contracts for necessities (food, shelter clothing etc) – set by provincial law -don't want ppl to refuse to deal with minors • incompetence ◦ intoxication or insanity- do not understand nature of your actions and other person must know or reasonably ought to know Legal *VOID • illegal and easily known - drugs, killings etc • contrary to public policy – look at cases to determine ◦ fairness matters sometimes so law can balance competing interest (protecting vulnerable ppl) ▪ ex: printing shop hire -> sign and included is for two yrs you will not work in competition Other arguments for non contract: *don't really enter voluntarily Duress: threat of physical harm, and economically (no alternative) Undue influence: special relationship (authority) to unduly influence *all are VOIDABLE Unconscionably: statutory (not common law) • Person who is significantly weaker(poor, homeless) & • Terms are extremely unfair (example $50 for cheeseburger to homeless) Privity: only parties of contract can have rights or obligations under that contract (example paint house -> don't pay other person) Unenforceable contract • can be valid but not enforceable ◦ M|UST be in writing to be enforceable: purchase and sale of land, guarantees, not performed for more than year away
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