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BU231- Business Law > After Midterm > Flashcards

After Midterm Flashcards

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1
Q

What does a breach of any term in a contract entitle the non breaching party to?

A

Claim damages

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2
Q

What may serious breaches of a contract do

A

May also discharge a contract and release the non breaching party from further performance or his or her contractual obligations

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3
Q

What may be considered a serious breach

A

It must undermine the whole contract or a substantial part of it; only then can they discharge

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4
Q

What are the 2 situations in which you can lose the right to treat the obligations as discharged?

A

When innocent party decides to proceed with the contract and accept benefits, despite the breach
Or when the innocent party may have received the benefit and not learned of breach until performance was complete (can still claim for damages)

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5
Q

Would delivering 9995 out of 10000 bags of flour be considered a minor or major breach?

A

Minor

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6
Q

When you encounter a breach, what should you consider first?

A

The importance of the term breached

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7
Q

What are the 3 ways a breach may occur

A

By expressly rejecting its obligations
By acting in a way that makes it impossible to perform its promises
Or by either failing to perform at all or it’s actual performance falls short of its promise

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8
Q

What is express repudiation

A

Happens when one of the contracting parties communicates to the other that it does not intend to perform as it promised

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9
Q

What is the promisee entitled to in express repudiation

A

To treat the contract as immediately ended, to find another to perform, and to sue for whatever damages it sustains
They must inform them tho that they are treating the contract as an end

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10
Q

What is anticipatory breach

A

When express repudiation occurs before any performance has been done
But a contract exists from the time is has been formed, not performed

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11
Q

What does the good faith performance mean

A

The parties will conduct themselves in good faith both at the time the obligation is created and at the time it is performed
Includes fairness, honesty, and consideration for the interests of the other party

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12
Q

In a contract where one party is to perform by instalments, the other may consider itself freed from liability if it can offer answers to these 2 questions:

A

Is there a good enough reason to think future performance will be equally bad
Is the expected or actual defectiveness important relative to the whole performance promised (it was bad in this order but will it be in the next ones?)

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13
Q

What is the doctrine of substantial performance

A

That a promisor is entitled to enforce a contract when it has substantially performed, even though it’s performance does not comply in some minor way with the requirements of the contract
Basically that a promisee cannot use trivial failure of performance to avoid its own obligations

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14
Q

What happens in over performance

A

If person was over payed, court will order him to restore it
Quasi- contract: one party had received an unfair benefit at the expense of another

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15
Q

What can you use in over performance/ quasi- contract

A

Restitution- an order to restore property wrongfully taken

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16
Q

What is the purpose of an exemption clause

A

To protect themselves from liability for breach of contract

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17
Q

What is the 3 step analytical approach that courts take to decide if the party should escape the effect of an exemption clause

A

Decide whether the clause covers the circumstances in question
Whether the clause was unconscionable (unequal bargaining power) at the time of contracting (is yes, not enforced)
Whether there is a strong public policy reason against enforcement

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18
Q

What are the types of remedies

A

Damages
Equitable remedies- specific performance, injunction, and rescission
Quantum meruit

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19
Q

What is the purpose of awarding damages

A

To place the injured party back in the position he would have been in if the contract had been properly completed

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20
Q

What are the 2 prerequisites for an award of damages

A

Loss must flow from the breach
(Foreseeable)
Damages must be mitigated
(They tried to minimize losses)

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21
Q

What is the expectation damages

A

Expectation damages= expected position of the plaintiff if the contract had been performed- the actual position the plaintiff is in after the breach

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22
Q

What are general damages

A

Describes an estimated amount for intangible injuries that a court may award

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23
Q

What are reliance damages

A

To compensate the injured party for wasted time or effort or expenses incurred to prepare for performance

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24
Q

What are punitive damages

A

Awarded for malicious or bad faith behaviour of the breaching party

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25
Q

What are the 4 challenges in measuring damages

A

Mental anguish
Wrongful dismissal under mental anguish
Lost holidays under mental anguish
Cost of performance VS economic loss

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26
Q

What are the 5 prerequisites for an equitable remedy

A

A plaintiff must come to court w clean hands
Plaintiff must not delay in taking action
Must not negatively affect an innocent purchaser
Plaintiff must have paid meaningful consideration
Remedy would be awarded if he were the defendant instead

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27
Q

What is specific performance

A

An order requiring a defendant to do a specific performance

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28
Q

What is an injunction

A

A court order restraining a party from acting a certain way; in terms of a contract it would be to prohibit them from committing a breach

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29
Q

What is a negative convenant

A

A promise not to do something

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30
Q

What is rescission

A

Involves returning the party as nearly as possible to the position that existed before the contract was made

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31
Q

What is quantum meruit

A

The fair amount a person deserves to be paid for benefit given

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32
Q

What happens when a plaintiff obtains a judgement for a sum of money

A

He becomes a judgement creditor and the defendant becomes judgement debtor

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33
Q

What is agency

A

A contractual relationship in which one person, known as an agent, is authorized by another person for whom she acts, known as principal, to form contracts with 3rd parties on principals behalf

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34
Q

What is a Commission Agent

A

one who sells on behalf of a principal to third parties and receives compensation through commissions on those sales

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35
Q

What are the 4 duties owed by an agent to the principal

A

Duty to comply with the agency agreement
Duty of Care
Duty of Good Faith

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36
Q

What is the duty to comply with the agency agreement

A

determined by the terms—express and implied—of the agreement with the principal
breach of any term, whether express or implied, gives the innocent party the usual remedies against the other for breach of contract

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37
Q

What is the duty of good faith

A

agent owes a fiduciary duty to the principal

requires that an agent be loyal, act in the best interests of the principal, and keep the principal fully informed

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38
Q

What happens if an agent demands money from a third party for the conduct of the principal’s business affairs?

A

Under theCriminal Code, it is a criminal offence for an agent to corruptly demand or accept any remuneration from a third party in the conduct of her principal’s business affairs

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39
Q

What are the duties owed by the principal to the agent

A

Remuneration (to compensate the agent for their efforts, commission)
Expenses (to pay the agents expenses and compensate for losses)

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40
Q

When is an agent entitled to commission

A

when they introduce to the seller a prospective purchaser who is “ready, willing, and able to purchase.” A completed sale is not required

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41
Q

What is actual authority

A

authority given expressly or impliedly to the agent by the principal (oral or written)

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42
Q

What is apparent authority

A

authority that the 3rd party is entitled to assume the agent possesses
contract is enforceable if the agent had the apparent authority

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43
Q

What is usual authority

A

has the apparent authority to act in the manner that is usual for that type of agent in that type of business, unless the third party knows, or ought to know, of any restriction upon that authority

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44
Q

What are the 3 possible outcomes of the rights and liability of the principle and agent

A

The principal alone is liable on the contract.
The agent alone is liable.
Either the principal or the agent may be held liable.

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45
Q

when would an agent be liable on a contract

A

When an agent contracts on terms that she is the real contracting party, though she is in reality acting or intending to act for an undisclosed principal, the agent alone has rights and liabilities relative to the third party

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46
Q

When is no contract formed in agency assumption

A

No contract is formed when a person holds herself out to be an agent but has no authority, actual or apparent, and the named principal does not ratify
No contract between a third party and the principal can be formed after the principal has lost contractual capacity or has ceased to exist

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47
Q

True or false: would an early withdrawal by either principal or agent without the consent of the other constitute a breach of contract?

A

True

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48
Q

What is franchising

A

one party, the franchisor, grants a licence to the other party, the franchisee, to sell its product and use its name, trademark, and business model in return for payment of a franchise

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49
Q

what is the consideration granted by the franchisor

A

the grant to the franchisee of a right, or licence, to sell goods or services supplied by or made to specifications provided by the franchisor

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50
Q

What is the legal relationship created by franchising

A

contractual one between independent entrepreneurs
Not fiduciary relationship
Imposes good faith on both parties: requiring prompt, honest, fair, and reasonable dealings with each otherand actions to protect and enhance the value of the brand

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51
Q

If an agent represents themselves as the principal who is liable?

A

agent

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52
Q

When can you enforce a contract against a 3rd party in agency contract

A

can show that K was made with authority

authority was real and not apparent

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53
Q

What is employment law

A

a contractual relationship where one party, the employer, is authorized to direct and control the work of another party, the employee

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54
Q

What are some torts in employment law

A

vicarious liability
negligent hiring
wrongful referral

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55
Q

What are an employees duties

A

duty to obey
duty to exercise skill and care
duty of good faith and fidelity

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56
Q

What are an employers duties

A

duty to pay

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57
Q

What are some factors for determining a reasonable notice for the termination of an employment contract

A 
trade practice
duration of employment
intention at time of K formation
frequency of pay
level of position
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58
Q

When can an employment contract be discharged

A

frustration

major breach of K

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59
Q

What is dismissal for cause

A

dismissal without notice or further obligation by the employer when the employee’s conduct amounts to a breach of the contract

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60
Q

what are the 3 major breaches of employment k

A

misconduct (bad behaviour)
disobedience (not obeying a reasonable and lawful request)
incompetence (there was an implied or expressed term of competence in K that they did not have)

61
Q

what is a frustrating event that makes a dismissal for cause in employment K

A

illness

62
Q

what is an employers role before dismissal for cause

A

to warn the employee (so they can try to improve)
to train and assist
to document activities

63
Q

what is wrongful dismissal

A

where an employee claims they have been wrongfully dismissed

employer can defence that there was a cause and adequate notice

64
Q

what does wrongful dismissal try to do

A

to place the injured party in the position they would have been had the contract been performed

65
Q

what is the first thing to determine in a wrongful dismissal case

A

the reasonable notice time period

then they find the rate of pay + the benefits multiplied by notice time to make damages amount

66
Q

what does mitigation mean in wrongful dismissal

A

contract law requirement to act reasonably to reduce losses

must try to obtain comparable employment

67
Q

What is the employee welfare leglislation

A

Both federal and provincial governments used legislation to force employers to improve working conditions for employees
fair working conditions for all employees

68
Q

What are secured transactions

A

typically give collateral security- an interest in property of a debtor that gives a creditor the right to seize and sell it in the event of non- payment of debt

69
Q

what are the 2 parties in secured transaction

A

creditor

debtor

70
Q

What is bailment

A

possession of personal property without a transfer of ownership
right to retain possession of property, but NOT the right to repossess or take back property
ex. company car= higher standard of care

71
Q

What is a benefit to secured interest

A

a secured creditor does not need a judgment or an execution order but canproceed on its own to enforce its rights over the secured asset. In this sense, a security interest provides a creditor with a quick self-help remedy

72
Q

When does a creditor take a security interest

A

when it is practical to do so:

  • as incentive to a debtor to pay
  • when goods will maintain their value
  • long term debt
73
Q

What are the rights of a judgement creditor

A

can obtain execution order to seize property

74
Q

what are the rights of a secured creditor

A

does not need a judgement to realize on its security

has priority over other unsecured creditors

75
Q

What are conditional sales contracts

A

where the debtor in possession but ownership with the creditor
-creditor has the right to repossession upon default

76
Q

What are chattel mortgages

A

a mortgage but on personal property(moveable things)- gives the mortgagee an interest to secure repayment
parties: mortgager and mortgagee (creditor)

77
Q

What are floating charges

A

a form of mortgage on all of the assets of a corporation other than those already specifically charged

78
Q

What does the personal property security act (PPSA) govern

A

governs not only conditional sale contracts, chattel mortgages, and assignments of book debts, but also floating charges, pledges, leases and consignments intended as security, and other less common forms

79
Q

what are the 3 components of the PPSA

A

creation of the security interest (agreement)
attachment of a security interest
perfection of the security interest (when creditors interest is protected)

80
Q

how can perfection occur

A

where secured party takes possession of the assets

or once registration under the PPSA is done

81
Q

what are the exceptions for good faith buyers

A

anything under 1000

retail purchases

82
Q

what is the assignment of book debt

A

a security interest in debtors accounts receivable

only triggered by default

83
Q

what are the 3 forms of businesses

A

sole proprietorships
partnership
corporation

84
Q

what is a partnership

A 
• Partnership is the relation which subsists between persons carrying on a business in common with a view of profit
There are 3 types of partnerships;
• General partnerships
• Limited partnerships
• Limited liability partnerships
85
Q

what do limited liability contracts require

A

registration

86
Q

what are general partners liable for

A

personally liable for the debts of the partnership

87
Q

What are the implied terms of partnership

A

equal share of profits

firm must indemnify partner that incurs expenses and liabilities (if he is sued, others help)

88
Q

when will a partnership dissolute by law

A

by any event that makes it unlawful for the business to be carried on
mentally incompetent
incapable of performing
guilty of conduct likely to negatively affect the business
breaches the agreement
just and equitable

89
Q

what are the effects of dissolution

A

the property of the partnership is first used to pay the debts and liabilities of the firm; any surplus is distributed to the partners according to their interests

90
Q

what are limited liability partnerships (LLP)

A

LLP partners are not responsible for debts, liabilities, or obligations of the partnership or any partner arising from the negligent acts or omissions that another party of the partnership commits in the course of business

91
Q

what is a joint venture

A

a contractual agreement between two or more parties to collaborate on the management of a specific project, to each contribute part of their respective resources, and to share the profits

92
Q

what kind of duties does a shareholder owe to a corporation

A

no duty of good faith to the corporation: he may carry on any independent business himself and may deal freely with the corporation as if he were a stranger

93
Q

What are bylaws

A

operating rules of a corporation

directors adopt or amend old bylaws and the shareholders must confirm them to make the bylaws valid

94
Q

What is corporate governance

A

refers to the organization and management of the business and affairs of a corporation in order to meet its internal objectives and external responsibilities

95
Q

What are the 4 people in the internal affairs of a corporation

A

directors- supervise officers
officers- run the business
shareholders- owners of corporation
stakeholders-other interested parties (employees)

96
Q

what kind of powers do directors have

A

power to issue shares
to declare dividends
to adopt by laws
to call meetings of the shareholders

97
Q

what are a directors duties

A

-act honestly and in good faith with interests of corporation
-standard of care- ○ behaviour must be comparable to the average director in the same circumstances
fiduciary obligation-comply

98
Q

when can directors be personally liable

A

misconduct/ negligence
votes for a decision that is financially detrimental
-liable for employee wages
if taxes not paid

99
Q

what is a defence for directors

A

due diligence
acted diligently
relied on audited financial statements
(business judgement rule:give them benefit of doubt)

100
Q

what is insider trading

A

the use of confidential information relating to a corporation in dealing in its securities
fines up to 5 million and prison up to 5 years

101
Q

what are shareholders rights

A

to vote at any meeting of the shareholders
to receive any dividend declared
to receive remaining property on dissolution

102
Q

what requires an ordinary resolution of shareholders (majority rules)

A

approval of any amendments made by directors
election of auditor
election or removal of director

103
Q

what requires a special resolution of shareholders (2/3 majority)

A

approval of alterations to articles of incorporation

fundamental changes- ex. sale of the assets

104
Q

what is corporate indemnity

A

defence to breach:An agreement with the corporation to reimburse a director or officer for any costs associated with liability for breach of duty is enforceable provided that the director acted honestly, reasonably, and in good faith

105
Q

what is the fiduciary obligation to a corporation when involving conflicts of interest

A

the duty to disclose any interest that the director may have in contracts made with the corporation
-failure to do this gives corporation the right to rescind the contract

106
Q

if a director has intercepted an opportunity belonging to the corporation what happens

A

they committed a breach of duty

It is a director’s duty to give the corporation the chance of first refusal before acting for herself

107
Q

what rights do common shares have

A

right to vote

108
Q

what rights do preferred shares have

A

priority in payment of dividends

only right to vote in some circumstances

109
Q

what right do shareholders have

A 
information
financial statements
meeting times
registers
etc
110
Q

what is appraisal remedy

A

allows a minority SH who does not agree to the changes to have the corporation buy back their shares
- court will set a price

111
Q

what is derivative action

A

When a corporation has suffered an injury or, for example, where directors have made a secret profit for themselves by exploiting a “corporate opportunity,” the corporation may sue the wrongdoer to recover its losses

112
Q

what is winding up

A 
the dissolution (liquidation) of a corporation
used when the corporation is a small family business or an “incorporated partnership,” where there is deadlock, where relations between the participants have broken down, or where a “partner” has been frozen out
113
Q

what is the oppression remedy

A

allowing individual shareholders to seek a personal remedy if they have been unfairly treated
show that their interests or reasonable expectations have been treated unfairly or oppressively disregarded by the behaviour of the corporation or its directors

114
Q

what are shareholder agreements

A

an agreement between 2 or more shareholders that is distinct from the corporations charter and by laws

115
Q

what are some terms in shareholder agreements

A

right to employment
to participate in management of business
to a fair price for a share interest

116
Q

what is the maintenance test

A

corporation cannot declare dividend when:

  • the C after the payment would be unable to pay liabilities as they are due
  • C’s assets would be less than liabilities AND capital
117
Q

what are the 2 goals for protecting investors

A

prevent and punish fraudulent

require full disclosure of financial info

118
Q

what is the requirement of mens rea

A

he prosecution must prove beyond a reasonable doubt not only that the accused actually did commit the act described in the offence but also that he had the intention to do it—that is, the “intent.”
Mens rea - a guilty mind

119
Q

what is the directing mind in criminal liability

A

any person who has policy making authority can be construed as the directing mind and can therefore fulfill the mens rea requirement for the corporation to be convicted

120
Q

how are employees protected

A

personal liability of directors for up to 6 months wages
protected through occupation health and safety legislation, which requires ongoing monitoring and creates regulatory offences for unsafe workplaces

121
Q

what do corporations must demonstrate in environmental offences

A

effective system to prevent offences is in place
regular monitoring
implement improvements
keep up to date

122
Q

what is the standard of care for directors and officers in environmental offences

A

need for expertise when engaged in hazardous activities

  • held to higher standard of care
  • no skill and knowledge- then failed to employ necessary people
123
Q

who is held responsible for environmental offences

A

the person committing the act

directors or officers

124
Q

what are the reasons for punishment of environmental offences

A

protect public
deter offenders
promote compliance w law
express public disapproval

125
Q

what are factors to be considered in determining the appropriate sentence for public offences

A 
nature of environment affected
extent of damage
deliberateness
attitude of defendant
attempt to comply w regulations
126
Q

What is the difference between international and multinational business

A

international-located in one place but dealing with foreign countries
multinational-offices set up in other countries as well as original

127
Q

what are export contracts

A

for the international sale of goods or for the supply of services abroad

128
Q

If the contract does not state the proper law of the contract (the jurisdiction) they will look at

A

surrounding circumstances and intentions of the parties

the system of law that is mostly connected to the contract

129
Q

what 4 documents does an export sale require

A

the contract of sale
the bill of lading (proof that goods have been delivered, title of goods)
insurance policy/ certificate (insuring lost goods)
the invoice (must conform to requirements of importing country)

130
Q 
the 4 standard terms to describe the shipping and insurance arrangements
EXW
FOB
CIF
DDP
A

Ex Works
Free on Board
Cost, Insurance, Freight
Delivery, Duty Paid (you are dealing with the duty expenses)

131
Q

If the seller is nervous about payment for goods but the buyer is nervous about paying before they get the goods what can they do

A

a collection arrangement

132
Q

what is countertrade

A

instead of money, consideration for contract would be other goods

133
Q

when exporting services, what do you need to follow

A

to abide by the importing countries rules
requires a proper law of the contract
need to determine method and currency for payment

134
Q

what are the 2 types of foreign investment and what do they mean

A

passive investment-buying shares in foreign companies

active investment-purchasing foreign property, joint ventures

135
Q

what is forum shopping

A

when jurisdiction law is based on better favours, must have actual reason for making certain law in contract

136
Q

what is the forum non conveniens

A

allows a court to decline jurisdiction where there is no real or substantial connection to that jurisdiction- defer the lawsuit to a more appropriate foreign court

137
Q

what is commercial arbitration

A

Arbitration

neutral third parties set up to arbitrate disputes

138
Q

what is role morality

A

checking your humanity at the door

employees view that their actions are permissible because they are doing it for their employer

139
Q

What is Ecommerce

A

the use of computer networks to facilitate transactions involving the production, distribution, sale and delivery of goods and services

140
Q

Web- wrap agreements

A

a web site document setting out the contract terms, if you accept you click on the appropriate icon
terms need to be brought to the attention of customer

141
Q

what is a click wrap agreement

A

requires the buyer to open the terms page before clicking acceptance

142
Q

what is a browse wrap agreement

A

provide a link to additional terms and conditions, but does not require to be open before accepting

143
Q

what type of tort law would a computer malfunction be

A

negligence
reliance on servers
negligence on part of service provider

144
Q

what are intellectual property rights

A

abstract property rights owned by persons who have the sole right to licence the use of the property

145
Q

what is a trademark

A 
a word(s) a design, or a combination of these, used to identify the goods or services of one person or organization
registration for this is good for 15 years
146
Q

patentable inventions must be

A

an art, process, machine, manufacture, or composition of matter or an improvement to such

147
Q

where will courts set jurisdiction in Ecommerce

A

where the defendant resides, or where there is a real and substantial connection to jurisdiction

148
Q

what is defamation in Ecommerce

A

posting defamatory material on a website or message board for publication for the purposes of libel and slander
increase damages because of broad audience

149
Q

what does PIPEDA do?

A

An act to promote that business can only collect and store personal information with their consent

BU231- Business Law (1 decks)

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