commercial law review notes.docx

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Department
Business Administration
Course
BUS 393
Professor
Ellen Mc Intosh
Semester
Fall

Description
2 types of law: 1) Procedural -form/organization of legal system -method of conducting trials -mechanisms necessary to enforce substantive law 2) Substantive -creates/defines/regulates our rights in society -must be enforceable -created by government (federal, provincial, municipal), courts (common law, this is 90% of our laws), and administrative tribunals Public Law -the law that governs the relatioonhsip b/w persons +government Private Law -the law that governs the relationship b/w persons -includes contract law, company law, negligence, employment law, agency, wills&estates Criminal Law -purpose is punishment -commenced by government -case must be proven by prosecutor -proof: beyond a reasonable doubt -defendant decides whether to have a jury Civil Law -purpose is compensation -most typical remedy is $$$ -is commenced by plaintiff (other party is defendant) -plaintiff has responsibility to prove case -proof: balance of probabilities (51% rule) -defendant decides whether to have a jury, majority rules Charter of Rights and Freedoms -protects fundamental freedoms, legal rights, equality rights, democratic rights, language rights, mobility rights -protects people from the government -can only be amended via a majority vote (very difficult) Canadian Court System Hierarchy: Supreme court of Canada>provincial>court of appeal>BC Supreme Court>BC Provincial Courts(trial courts) Alternative Dispute Resolution rd -arbitration: bring in expert 3 part, final decision is binding -negotiation: parties involved talk it out -mediation: a mediator is brought in to facilitate the discussion -Conciliation: ??? -adjudication: you goin to court son Advantages of ADR: -less costly than going to court -faster than court -preserve business relationships -confidentiality -more flexible Systems of Law 1) Common Law System  12 century UK 2) Equity 3) Civil Law System  based on roman civil code, not adaptive, open to interpretation in new cases, only used in Quebec Theory of Precedent -common law system is based on this system -judges MUST look to past cases with similar or identical facts from a higher or equal court, from the jurisdiction, to decide new cases -STARE DECISIS >>common law system is more predictable & consistent than the civil law system Legal Reasoning Format -judgements contain 5 key elements : >Facts (what are the) >Issues (legal) >Law (case law, statutes, academic sources) >Application (how should the law be applied, closing argument) >Conclusion (answer to the legal issue) Equity -13 century UK -based on church law, principles of morals, ethics, conscience, fairness -1875 courts of equity merged with common law system BUT law remains distinct -rules of equity prevail over common law Courts of Equity created remedies such as: a)specific performance court order for parties to ask to honor promises b)injunctionstop it c)Rescission court unravels the contract To obtain an Equitable Remedy, you must: 1) Prove that money is an inadequate remedy 2) Subject matter of contract must be unique, ie a house 3) Fast Feet- wronged party must act quickly 4) Clean handsyou cannot be the reason for the trial Breach of Contract -occurs when you break a promise made in a contract >>court only allows appeals on LAW, not allowed to appeal the FACTS Unilateral Contracts -consideration only goes one way >>an offer may be accepted implicitly by an offeree just by the offeree following the terms and conditions Costs of Going to Court 1) Solicitor/Client costs -$350-800 per hour -flat fee for wills, conveyance, incorporation -contingency(% of winnings) 2) Party & Party Costs -what a judge MAY award the winner of a trial (paid by loser) to partially compensate winner for solicitor/client fee Constitutional Law Constitution Act – 1982 -the charter of rights and freedoms is ENTRENCHED in the constitution -the charter applies to government (prevents government from infringing on charter) -there are exceptions to the charter (ie national security, crazy people) Notwithstanding Law (sunset clause) Components of a Contract (5) 1) Intent -both parties to a contract must INTEND to be bound by their promises -court presumes that intent exists in business and between strangers, but not between close friends and family -reasonable persons test: would a reasonable person, looking at the outward conduct of the parties, say they showed intent 2) Consensus -parties have a mutual agreement (offer+acceptance) -consensus can be implied 3) Consideration -the price each party pays to participate 4) Capacity -children, mentally incapable, or intoxicated people can not enter into a contract 5) Legality -subject matter of contract cannot force a party to do something illegal *A contract does not exist without these five elements Offer -offer consists of proposal+intent -must be clear on: parties, price, object -an offer that is accepted is a contract Only 2 types of Contract must be in writing: 1) Lan
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