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Western University
Management and Organizational Studies
Management and Organizational Studies 2276A/B
Frederick King

Terms 2/28/2013 10:42:00 AM Precedent  Subsequent statutes trump earlier case law  Government must act in a constitutional manner when passing new laws  Distinguishing the case on the facts o The courts get to decide when a precedent applies in a case o If the facts are sufficiently similar, precedent will usually apply o Trial judges try to make decisions that are not going to change when appealed  Authority – lower courts are bound by the decisions of the higher courts o Courts of appeal are not bound by their own decisions – they can depart from their own precedent o They do generally tend to follow their previous decisions o A decision from an Alberta court of appeal is not binding in Ontario, but it can be persuasive and influential  Ratio – the essence of the case, is what defines the precedent, what is binding  Obiter – everything other than the ratio, other things said, can be persuasive o Duty of care of a social host  Ratio – one case did not find a social host owed a duty of care  Obiter – not to say that a social host could never owe a duty of care if the facts had been different Contracts  Needed for a contract: o Consensus – an objective test, would a reasonable person conclude that an agreement was made o Legality o Intent (to be legally bound) – test is objective, whether a reasonable person would conclude they intended to be legally bound o Capacity  Contracts don’t need to be in writing, but it is highly preferable o Objectives of written contracts:  Evidentiary – shows exactly what terms was agreed upon (signatures)  Intention – many drafts my be created, but it doesn’t mean both parties have agreed, but a final signed contract shows parties have intended to be legally bound  Minimizes the risk of misunderstanding – increases certainty  Standard form agreement – not negotiation, take it or leave it (cell phone agreements, gym contracts, etc.)  Negotiations – multiple drafts are created  Drafting styles o Consulting agreement – plain English, concise, easily understood o Services – formal, traditional o Software license agreement – “click wrap” agreement  Courts: o Supreme Court of British Columbia:  Trial court that also hears appeals from the provincial courts  Only the Court of Appeal for BC (or the SSC) can modify or overturn the decisions of the Supreme Court of BC o BC Court of Appeal  Hears appeals from the Provincial Court of BC and the Supreme Court of BC  Judges review the written record of the original trial and then determine whether there were any error
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