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level: Level 1

Questions and Answers List

level questions: Level 1

the refusal to perform an agreement or promiseREPUDIATION
not bound by contractRATIFICATION
intended to prevent perjury and fraud with respect to leases and agreement concerning LAND - eventually each province introduces the sale of goods actStatue of Fraud
A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. ... (4) If under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale.Sale of Goods Act
memorandum must be in writing allowing one to answer for the debt fault or tortThe guarantee
the entity owing money to the creditorPrincipal Debtor
the entity owed moneyCreditor
one who promises to pay the debt of the principal debtorGuarantor
an equitable remedy allowing the courts to enforce an unwritten contract involving land - court can recognize and enforce an oral contractPart Performance
1.) actions must relate to the contracts of the land 2.) the party partly performing must show that fraud and hardship is being made 3.) evidence of a verbal agreement is required 4.) the agreement must relate to an interest of the landPart Performance principles
this is a rule which prevents a party from introducing evidence that would add to or contradict terms of the contract - refers to the admissibility of written or oral evidence - parol means oral evidenceparol evidence rule
1.) Condition precedent: a condition that must be satisfied before a contract can come into effect 2.) Implied Terms: Implied terms are words or provisions that a court assumes were intended to be included in a contract. This means that the terms aren't expressly stated in the contract. 3.) Collateral Agreement: separate agreements made by parties to have some effect on the initial contract but not relied upon has its own considerationwhen does PER not apply
1.) mistake: parties are mistaken as too some essential terms in the agreeement 2.) Mistake of Law 3.) Mistake of FactWhat renders a contract unenforceable
- a defence which may allow illiterate or infirm persons to avoid liability on a written agreement if they can establish they were not aware of the true nature of the document and were not careless in executionNon Est Factum
mistake by one partyUnilateral Mistake
mistake by both partiesMutual Mistake
1.) Rectification: the correction of the mistake in an agreement that would have rendered the agreement impossible to perform - purpose is to save the contractREMEDIES FOR MISTAKE
statement or conduct which induces another to enter a contract (can be innocent or fraudulent) - misrepresented party must nullify all benefits to rescind contractMisrepresentation
cancelling of the contractRescission
Innocent misrepresentation: honestly believe a material fact to be true but it is not Fraudulent misrepresentation: intentionally deceiving another contract of good faith Negligent misrepresentation: recklessness - contract can be void due to mistake of fact4 types of misrepresentation
- a state of affairs whereby a person is so influenced by another that the persons judgement is not his or her own - undue influence must be established before a contracting party can avoid an agreement - special relationships or else must be provenUndue Influence
a contract cannot confer rights or impose obligations upon any person who is not a party to the contract.Privity
1.) Interests running with the land 2.) Assignment: transfer or rights to someone else 3.) Novation: substituting an old party for a new party which means the old party is no longer bound to the contract 4.) Sealed PromiseExceptions to Privity
1.) Novation - transfer of right AND OBLIGATIONS 2.) assingment - transfer of some rights 3.) statutory assignment: an assignment of rights then an assignee may enforce if certain conditions are met by the assignment 4.) Vicarious Performance: involves two or more contracts - the first contract is the contract between the parties in which the contractor agrees to perform certain works or service es - the contractor then enters a second contract which may be a contract to have the actual work done 5.) Assignment by lawTransferring rights is done through..
To tender a contract means to present to another person or a company an offer of money for a service. - promise is made as a method of paymentTender
when a contract forms, a party must perform all obligations to meet contractual obligationsPerformance
- the failure to perform a contract with accordance to its termsbreach of contract
Discharge of a contract occurs when the main obligations of a contract end. The ending of this contract entails a termination of a contractual relationship. Yet parties may terminate a contract even when they do not fulfill to the end the primary obligations required by a contract.Discharge of contract
- this is a contract which is impossible to perform due to unforeseen or unexpected circumstances where no party is at faultFrustration of Contract
Express terms are terms that have been specifically mentioned and agreed by both parties at the time the contract is made. They can either be oral or in writing.Express term
condition which alters the rights and duties of the parties to a contract or may terminate the contractCondition subsequent
major unforeseen event which prevents the performance Act of God is a type of force majeureForce Majeure
dismissal of an employee where the inability to perform is not self induced but due to frustrating factorsNon culpable dismissal
a condition which must be satisfied before a contract can come into placeCondition precedent
1.) Waver: each party agrees to abandon the right to insist on performance; parties can end the contract before full performance 2.) Novation: change of terms or parties involves 3.) Material Alteration of terms: the substantial change of terms in making a new agreement; minor alterations have no effect 4.) Substitute agreement: if the parties change one contract for anotherWays of Discharging a contract
performance refused on a contractBreach
any refusal to perform the contract BEFORE the date of performance - if the party substantially performs, they can claim money for what has been done - refusal to perform creates new rights for the injured party where damages can be claimed - courts can either grant compensation or order performance by the breaching party - excuses Both the guilty party and the injured from performing the contractAnticipatory Repudiation
this is a direct refusal to perform a contractExpress Repudiation
based on the conduct of the party - if the breaching party performs, injured party may not avoid the contract unless repudiation goes the root of the contractImplied Repudiaton
where a party that has committed a breach has largely performed, so there is a deduction in price or damagesdoctrine of substantial performance
breach of contract which goes to the root of the agreement - the injured party may avoid continuing to perform on the contract even if the contract requires continued performanceFundamental Breach
allows a party to avoid liability for non performanceExemption Clause
injured party can claim damages however there is no revocation of the contractWarranty (what can the injured party do)?
1.) Restituto integram: return the party to their original position injured party can sue for compensation but loss and injury must be proven 2.) monetary damages 3.) Quantum Meruit:Quantum meruit determines the amount to be paid for services when no contract exists or when there is doubt as to the amount due for the work performed but done under circumstances when payment could be expected.Remedies to a contract
1.) General Damages: intend to place the injured party in the position they would have been in had the contract been fulfilled 2.) Special Damages: compensation in addition to general damages for cases that do not naturally flow from a breach 3.) Punitive Damages: further damages to punish the wrong doer 4.) Aggravated Damages: A monetary remedy designed to compensate for the humiliation, distress, misery, or embarrassment resulting from the tortfeasor's vicious, malicious, or shocking conduct.Types of Damages
any damage caused by breach of contract is recoverable if it is reasonably forceableReasonable foreseeability (recoverable)
- mitigate means to reduce one's losses - when a breach of contract occurs, injured party must do all that they can do reduce their losses, then they can claim damages from the breaching party after mitigating lossesDuty to mitigate
estimate of monetary damage which would flow from a breach of contractLiquidated Damages
where the court requires the breaching party to carry out contractual obligations - injured party must prove 1.) they were willing to complete the contract 2.) the breaching party refused to perform their obligation SP is not awarded for employment contracts and contracts for personal servicesSpecific Performance
court remedy for a party to refrain from doing something eg: promise not to work for a specific employer often negative in natureInjunctions
a person on whose behalf an agent actsPrincipal
a person appointed to act in behalf of the principalAgent
Express agency means an actual agency created by written or oral agreement between the principal and the agent. Through this agreement the principal authorizes a person to act as the principal's agent. 2 contracts exists 1.) one between the principal and the agent 2.) one between the principal and the third partyAgency by express agreement
Principal by words or conduct leads the third party to believe the agent has authority (apparent authority)  Principal will be bound by the agent's actionsAgency by Conduct
1.) Express Agreeements 2.) Conduct: actions inferred 3.) Estoppel: cannot contradict what is said by law - any representation by words or conduct that one is an agent cannot later be denied if 3rd party relies on that rep 4.) Operation of law (necessity)How are agency relationships formed
- the ability of an agent to bind a principle where the principle hasn't alerted the third party of its limited role or termination - principle can still be held liable - principle must let third party know of restrictionsApparent Authority
A situation in which a person or company inaccurately claims to be an agent for another person or company and conducts some act in that capacity, but which the principal (who is not actually a principal) later accepts and recognizes. - essentially confirming the agent's workAgency by ratification (not really agent but confirm)
performance of a contract is done ONLY by PRINCIPAL and 3RD PARTY - agent is not included - if the agent acts outside of the scope of authority he can be sued by principle - if the agent fails to disclose it is an agent, 3rd party can go after principle and agent - A principle is liable for an y sort committed by agent if the act was in the ordinary c course of the agents business - if the tort is committed outside the scope, only the agent is liable3rd Parties and agency
- death by principle or agent - mental incapacity of agent or principle - bankruptcy of principal - completion of task - express agreementtermination of agency
- consists of one business owner and owner is responsible for the management, debts, liabilities of businesssole proprietorship
consists of two or more individuals with a view towards profit - registration of partnership required by lawpartnership
- hints of partnership are sharing profits from the business - more than sharing profits is necessary, must have a role in managerial structure - a partnership is a contract outlining rights, duties, and obligation of each partner - Partner is an agent to all other parties during partnership business - a minor may become a partner but the contract is voidable at the minors option - the partner is accountable for other partner's actions - a firm is liable for any torts committed by a partner during the ordinary course of business partnerships - a new partner to a firm may not be liable for existing partnership debts unless the debt is assumedNature of Partnership
- rights and duties are stated in a partnership agreement under Alberta's Partnership Act - any property is split equally between partners including losses - without an express agreement partner's cannot be expelled - no person may be introduced as a partner without everyone agreeing - a partner can assign his share to someone else but this doesn't mean he becomes a partnerPartner's right's and duties
individual partners are liable for the general debt of the partnership and for personal negligence but not for the negligence of other parties involved - limited partners cannot participate in managementA limited partner is in charge of contributing financially to the company, and in exchange, they get part of the profits of the partnership. The partner can't have obligations on the partnership's behalf or participate in daily management or partnership
has managerial debt and unlimited liability for partnership debtsgeneral partner (unlimited liability)
personal assets exposed liable for partnership debtUnlimited Partner
- partnership is terminated when terms and conditions are met under the partnership agreement - notice period given to dissolve partnership - end of task - death of a partner - bankruptcy of a partner - mental incapacityTermination of Partnership
once dissolution occurs, assets must be liquidated and each partner's share is determined - all partner's debts must be paid to non partners initially then to partnersPost Termination Issues
Precedent which has been built up overtime since the Middle Ages such as case lawCommon Law
statute law: law passed by a legislative or by politicians Substantive law: what makes up the law Procedural law: how to file a lawsuit Public law: government and people Private law: between individuals canon law: religious lawtypes of law
Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way.Stare decisis
- this is the law of business - developed rules for regulating businesses - based on business customs to resolve disputeslaw merchant
fairness or stake in a corporationEquity
William the conqueror the viking invaded EnglandCommon law roots
oldest legal system in the world - came to Canada through the French expeditionCivil law
- trade and commerce - interprovincial and international trade - banking - Public debt - immigration - intellectual property - criminal lawfederal section 91
- education - transportation - direct taxation - property and civil rights natural resourcesProvincial section 92
a contract is an agreement between two or more parties for a specific purposeWHAT IS A CONTRACT
Offer: person making the offer is the of offeror and must communicate an offer to the offered clearly; offer can be revoked before acceptance, however if accepted cannot revoke. Offer lapses under three conditions; passage of time, counteroffer, the party dies Acceptance: acceptance must be communicated in the manner the offeror requests Consideration: exchange of value between parties, the quid pro quo coming in the form of money, performance of a service or promise not to do somethingelements to a contract
not everyone has the capacity to enter into contracts cannot sign a contract with a minor, all contracts are voidable at the amino's option - a minor is liable where the contract is fully performed -capacity - minors
- intoxicated or mentally incapacitated persons cannot contractCapacity to contract
one cannot avoid a promise to another or deny the truth of a statement made to anotherestoppel