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Textbook notes Ch 9 & 10.docx

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Wilfrid Laurier University
David Scallen

Chapter 9 Notes Recall: Contract is formed (legally) when there is offer, consideration, and intention. Substance of a contract are the terms of the contract Form: is the physical form it takes Not all contracts have to be in writing; oral contracts are legally enforceable as well The subject matter of the contract dictates the exact writing requirements (ex. mortgage legislation) Three common types of legislation affecting wider ranges of contracts 1. The Statute of Frauds (1677)- the first piece of legislation to impose writing of requirements • Make certain types of contracts unenforceable unless they are in writing 2. The Sale of Goods Act- focuses on the most common type of transaction- a purchase of goods 3. Consumer Protection Legislation- deals with most vulnerable type of party When Statue of Fraud applies to something: the promise should be in writing. The Types of Contract Affected by the Statute of Fraud: 1. A promise to answer for the debt, default, or miscarriage of another: guarantee and indemnity • Guarantee: a conditional promise to pay only if the debtor defaults; statute applies; has to be in writing to be effective • Does not apply to Indemnity: a promise of the third party to be primarily liable to pay the debt; does not have to be in writing • Miscarriage does not have to be in writing to be enforceable either 2. An agreement made in consideration of marriage: applies; in regards to all assets brought into marriage 3. A contract concerning an interest in land: applies to leasing land, house, or a building; repairs are not included in this • Part performance is often taken in place of a written memorandum: but this only works when the following are met: a) The contract must be one concerning land b) Existence of a contract must be clearly suggested respecting the land in question; not be ambiguous. A deposit on the price of land is not sufficient; a part performance is sufficient. c) Suffering of loss because of the act of performance 4. An agreement not to be performed by either party within one year: • If a contract extends beyond a year by its terms, statue applies • If a contract does not imply that, but has been over a year, it does not apply • This is to exclude the Statute contracts for an indefinite period 5. Ratification of Infants’ Contracts: contracts requiring ratification by infants upon coming of age (contracts that are not for a permanent interest in property) must be in writing to be enforceable Requirements for a Written Memorandum: • All essential terms must be included: including identity of the parties; adequate description of subject matter; all cross-references within documents • Signed by the defendant; a contract obviously cannot be enforceable if the defendant did not sign it Consequences for Contracts within its scope: unenforceable contract still exists; it is not void. These are the ways in which the contract may affect the legal relations b/w parties. 1. Recovery of money paid under a contract: if both parties in (unenforceable) contract decide not to perform, recovery of any down payment made will depend upon which party repudiates the contract; usually the person who did not breach the contract would get it 2. Recovery for Goods and Service: party who accepted a good under the contract cannot keep the benefit unless something is given up for it. 3. Effect of a subsequent written memorandum: as long as memorandum comes into existence before the act is done, an additional written memorandum may come into existence and be enforceable. 4. Defendant must expressly plead the statute: if he fails to mention it, the court will decide the case without reference to the statute; the plaintiff will succeed 5. Effect on Prior Written Contract: an oral contract within the statute is effective as long as a party does not have to bring an action to have it enforced; however, oral contract cannot be sued upon directly (see illustration 9.6 on p.212) Requirements of the Sale of Goods Act: Special types of evidence to enforce contracts for the sale of goods. • What constitutes a Sale of Goods under the Act? - You must be able to identify what it means to “make a sale of good” in a particular contract; ex. does it mean to provide the supply as well, or just the construction? a) The aggregate price of the order is the deciding amount for the purposes of the act • Evidence that satisfies the Act a) “Acceptance” and actual receipt of the goods by the buyer: “any conduct by the
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