Business LawExamReview.docx

Business Law Table of Contents: Chapter 2 Introduction to the Legal system Chapter 3 The resolution of Disputes The courts alternatives to litigation Chapter 4 Intentional Torts & Torts Impacting Business Chapter 5 Negligence, Professional Liability, and Insurance Chapter 6 Formation of Contracts Chapter 7 Formation of Contracts (Continued) Chapter 8 Factors Affecting the Contractual Relationship Chapter 9 The End of the contractual relationship Chapter 2 Introduction to the Legal System What is Law? Natural law theorists Law being defined in moral terms, where only good rules are considered law Legal positivists Only rules enacted by those with authority to do so qualify as law Legal realists Those rules that the courts are willing to enforce qualify as law Law is the body rules made by government that can be enforced by the courts or by other government agencies Categories of Law Substantive law establishes not only the rights an individual has in society but also the limits on his or her conduct. o What you get found in common law or statutes. Procedural law determines how the substantive laws will be enforced. o how you get it, found only in statues and regulations. Public law includes constitutional law that determines how the country is governed and the laws that affect an individuals relationship with government, including criminal law and the regulations created by government agencies. o Relationship between individuals and the state, and administrative/constitutional law Private law involves the rules that govern our personal, social, and business relations, which are enforced by one person suing another in a private or civil action. o relationship between individual vs. individual **Criminal Law have to prove all elements of the case beyond reasonable doubt *** Tort Law is based on a balance of probabilities Origins of Law Civil law legal system developed in Europe and now used in many jurisdictions, including Quebec. The terms civil court, civil action, and civil law are also used within our common law legal system to describe private law matters. Civil Law Prior decisions do not constitute binding precedents in a civil law jurisdiction. o But in common law jurisdiction, the doctrine of following precedent would demand that the courts look to similar cases for the principles to be applied. Common Law Legal System Stare Decisis Stare Decisis a system of justice developed in which the judges were required to follow each others decisions. (or following precedent) o It allows parties to predict the outcome of the litigation and thus avoid going to court. However, a significant disadvantage of following precedent is that a judge must follow another judges decision even though social attitudes may have changed. o Distinguishing the facts - Judges try to avoid applying precedent decisions by finding essential differences between the facts of the two cases if they feel that the prior decision will create an injustice in the present case. Sources of Law Common Law- Judge made law Common law courts The court of common pleas, the court of kings bench, and the exchequer court, referred to collectively as the common law courts. Roman civil law which gave us our concepts of property and possessions. Canon or church law contributed law in relation to families and estates. Law merchant Trading between nations was performed by merchants who were members of guilds. Equity Law of Equity - Unhampered by the rules of precedence, a judge could decide a case on its merits. Equity should be viewed as a supplement to, rather than replacement of, common law. Common law is completealbeit somewhat unsatisfactorywithout equity, but equity would be nothing without common law. Statutes Government has several distinct functions o Legislative o Judicial o administrative A provincial statute, such as Ontarios Muncipal Act, may enable municipalities to pass bylaws, but only regard to matters stipulated in the Act. Law in Canada Confederation Constitution Act of 1867 - The BNA Acts primary significance is that it created the Dominion of Canada, divided power between the legislative, executive, and judicial branches of government, and determined the functions and powers of the provincial and federal levels of government. Rule of law which recognizes that although Parliament is supreme and can create any law considered appropriate, citizens are protected from arbitrary actions of the government. o All actions of government and government agencies must be authorized by valid legislation. Canadas Constitution the rulebook that governments must follow o (1) statutes, such as the Constitution Act, and the statues creating various provinces o (2) conventions, which are unwritten rules dictating how the government is to operate and include the rule of law o (3) case law on Constitution issues, such as whether the federal or provincial government has jurisdiction to create certain statutes. Constitution and Division of Powers Parliament is supreme, and traditionally has had the power to make laws that cannot be overruled by any other body. The Constitution Act, 1867 assigned different legislative powers to the federal and provincial governments. Federal Government Section 91 o Power over matters as banking, currency, postal service, criminal law (not enforcement) o Regulation of all import and export activities, taxation, environmental concerns, money and banking, interprovincial and international transportation, intellectual property Provincial Jurisdiction Section 92 o Hospitals, education, the administration of the courts, and commercial activities carried on at the provincial level. Under Peace, order and good government clause, the federal government has residual power to make law with respect to things not listed in the Constitution at, 1867. o Aka things that are not currently have laws for. Pith and Substance used to determine the constitutional validity of legislation o Aka what is the main purpose of the law and does government which enacted the law have jurisdiction to regulate the concern o Intra Vires within its power o Ultra Vires outside of its power o Colourable Legislation When a level of government tries to invade an area given to another by trying to make it look like the legislation is of a different kind. o Paramountcy When overlaps exist, Paramountcy, may require that the federal legislation to be operative and that the provincial legislation go into abeyance and no longer apply Federal > Provincial. Delegation of Powers Both legislative bodies are supreme parliaments in their assigned areas. Although direct delegation is prohibited, it is possible for the federal and provincial governments to delegate their powers to inferior bodies, such as boards and individual civil servants This is usually the only way that governmental bodies can conduct their business Agreements to Share Powers These agreements may consist of transfer-payment schemes, or conditional grants under which the transfer of funds from the federal government is tied to conditions on how the money is to be spent. Legislation Bill step one, goes through a sequences of introduction, debate, modification and approval that is referred to as first, second and third-readings Royal Assent A bill cannot become a statute, recognized by law until the Governer General has approved it. o This is a formality as the approval is an unwritten law Statutes often empower government agencies to create further rules to carry out their function.