Business Law 2

Question 1

Beneficial Contract of Service

Answer 1

contracts of employment or apprenticeship found to be for a minors benefit case 8.1 Hockey Player

Question 2

Who has limited capacity to contracts?

Answer 2

1. Minors and Infants
2. Indigenous
3. Corporations
4. Drunk or Insane
5. Bankruptcy debtors

Question 3

What are some examples of contracts void by statutes?

Answer 3

1. Workers compensation

2. Bankruptcy and Insolvency Act

Question 4

What are some examples of statutes affecting public policy?

Answer 4

1. Promises to pay a betting debt.
2. Insurance Contracts
3. Stock Exchange transactions

Question 5

When a legal mistake is thought to of occurred what two questions does the court ask itself? Give fake and bake example?

Answer 5

1. did a legal mistake occur.
2. Was the legal mistake bad enough where the court should intervene.
   Example - Harry buying moisturizer is mistake because it was advertised at 2$ but invoice says $20. Legal mistake. Harrying bought moisturizer but doesn’t like the smell, mistake but not a legal mistake.

Question 6

When is rectification available?

Answer 6

When the mistake is close to being fraud or near fraud. Rectification is available for common mistakes if a written instrument fails to accurately record their common agreement

Question 7

What does non best factor mean?

Answer 7

“it is not my doing” Non est factum is a special type of mistake where a party has signed a document under a mistaken belief as to its nature and character.

Question 8

What is the remedy for a breach of warranty?

Answer 8

contractual damages

Question 9

What is a more effective remedy, contractural damages or rescission?

Answer 9

Contractual damages

Question 10

oronto Marlboro Major Junior ‘A’ Hockey Club v. Tonelli (1979, Ont. CA)

Answer 10

has to do whats best for minor, in this case going to the professional team was more beneficial that staying in his three amateur contract

Question 11

Other than minors what are some other examples of someone not having the capacity to uphold a contract?

Answer 11

Someone of an unsound mind
Someone under the influence of drugs or alcohol
Corporations

Question 12

According to the Ontario Ministry of the Attorney General’s office mental incapacity is?

Answer 12

“the inability to understand relevant information and appreciate consequences of a decision or lack of a decision”.

Question 13

What is a restrictive covenant?

Answer 13

a clause imposing a limitation or restriction on one of the parties to the agreement.“clause in restraint of trade” The party attempting to enforce such a covenant must establish that the restraint is reasonable.

Question 14

the Supreme Court of Canada considered the issue in Elsley v. J.G. Collins Insurance Agencies which dealt with the purchase and sale of a business.

Answer 14

The employer must have some proprietary interest that he or she is entitled to protect
The geographic and time restrictions are reasonable
The restrictions are reasonably necessary to protect the employer, given the nature of the business and the nature and character of the employment.

Question 15

What is a mistake in the legal sense?

Answer 15

an error made by one or both parties that undermines the contract.

Question 16

What must the courts decide when someone alleges a mistake?

Answer 16

Once the court has been persuaded that a legal mistake has occurred, the court must determine whether the mistake is one that would allow one party to avoid his or her contractual obligations. In effect what the court must decide is whether the interpretation of the mistaken party at the time he or she entered the contract was reasonable.

Question 17

The Supreme Court of Canada ruled that, on a case of common mistake, a party seeking a rectification order must establish all of the following:

Answer 17

An agreement between the parties existed prior to the execution of a written instrument and the terms are definite and ascertainable as at the timing of the execution of the written instrument;
The prior agreement was still in effect when the written instrument was executed;
The written instrument fails to accurately record the prior agreement; and
If rectified as proposed, the written instrument would carry out the prior agreement.

Question 18

What is a unilateral mistake?

Answer 18

A unilateral mistake is where only one party believes there has been a mistake in the contract, whereas a common mistake is where both parties believe there has been a mistake.

Question 19

Define Non est factum

Answer 19

a special type of mistake where a party has signed a document under a mistaken belief as to its nature and character. In order for the doctrine to apply the nature of the document had to have been misrepresented. Further, the party arguing non est factum cannot have acted carelessly when entering the agreement. If the court finds non est factum the contract is voidable.

Question 20

What does misrepresentation mean in contract law?

Answer 20

• be it innocent, fraudulent or negligent may result in a contract being rescinded so long as the misrepresented information was material. Material is defined as a fact that could reasonably be expected to influence or induce the decision of a party to enter into a contract.
• A misrepresentation must be a statement of fact, rather than opinion before any relief will be granted. At times it is extremely difficult to determine whether a statement is one of fact or one of opinion.

Question 21

material misrepresentation.

Answer 21

• think of fire fighting example he court held Grievor’s silence was a material misrepresentation.
• Grievor had taken extreme steps to hide his disability, he even had someone else take his medical examination for him!

Question 22

Define Undue influence

Answer 22

the mental domination of one party by the other to such a degree as to rob the former of his or her free will. A contract reached through undue influence is voidable at the option of the victim provided he or she acts promptly upon being freed from the domination.

Question 23

Define Duress?

Answer 23

the use of actual or threatened violence as a means of coercing a party to enter into a contract, conduct that may well amount to a criminal offence such as extortion or assault. As far as the contract is concerned, the agreement is voidable at the option of the victim.

Question 24

What two requirements need to be met before economic or physical duress can be argued?

Answer 24

t must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to a coercion of the will, or
It must place the party to whom the pressure is directed in a position where he has no realistic alternative but to submit to it.

Question 25

de minimis non curat lex define

Answer 25

Law doesn’t deal with bullshit basically

Question 26

What series of contracts does the Statute of Frauds say must be in writing?

Answer 26

A promise by an executor or administrator to pay estate debts out of his or her own money;
A promise to answer for the debt, default, or miscarriage of another (guarantee);
An agreement made in consideration of marriage;
A contract dealing with an interest in land;
An agreement not performed within one year of its making; and
Ratification of debts incurred by a minor

Question 27

What is the Electronic Commerce Act, 2000

Answer 27

Allows signatures to be made electronically
-Electronic Commerce Act, 2000 has adapted the Statute to modern reality by allowing for electronic signatures and transactions over the internet

Question 28

Sale of Goods Act was is the exemption for not having to have a deal in writing?

Answer 28

The goods were accepted and actually received by the buyer;
Part payment was made and accepted; or
Something of earnest, a token or small sum intended to seal the deal, was given by the buyer to the seller

Question 29

What is the consumer protection acts

Answer 29

is designed to protect consumers purchasing goods or services. The act requires that executory contracts, contracts between a buyer and a seller for the purchase and sale of goods or services where delivery of the goods or services or payment in full is not made at the time the contract is entered, must contain specified information and be in writing. The act specifically states an executory contract is not binding on the buyer unless the contract is signed by the parties.

Question 30

What are some of the interpretive tools used by the courts to define reasonable?

Answer 30

1. The plain meaning, or strict grammatical approach to interpretation stresses the ordinary or dictionary meaning to the words used in a contract.
2. The liberal interpretive method on the other hand attempts to review the communication between the parties, such as letters, emails and draft documents to come to an understanding of what words were intended to mean by the parties to the contract.

Question 31

The letters, emails and draft documentation used in the liberal approach to interpretation is called?

Answer 31

parole evidence

Question 32

Implied Terms

Answer 32

An implied term is a term not in the written agreement but which the court will read into the contract and enforce. Often terms are implied based on the custom in the industry or to meet the reasonable expectations of the parties.

Question 33

Define Privity of Contract?

Answer 33

The need to be a party of the agreement in order to be legally liable or sued.

Question 34

What three types of assignment are recognized in Canadian Law?

Answer 34

An equitable assignment which requires only that a clear intention to assign all or part of a contract, either in writing or orally needs to be demonstrated. Although the assignee receives the benefit of the contract, in any lawsuit involving the contract all parties must be parties
A common law assignment requires the assignment to be unconditional and complete, in writing and the promisor receives notice of the assignment. The advantage to a common law assignment is that the assignor is no longer involved in an action
An assignment by operation of the law where a contract is automatically assigned without any action by the parties, such as a bankruptcy situation where the contract is assigned to a trustee in bankruptcy

Question 35

What are the four methods of discharging, cancelling or ending the obligations of a contract making it inoperative.

Answer 35

1. Discharge by agreement
2. Discharge by performance
3. Doctrine of frustration
4. Operation of the law

Question 36

Define discharge by performance

Answer 36

Everything satisfactory contract ends

Question 37

Doctrine of frustration

Answer 37

The law excuses a party from performance when unforeseeable circumstances beyond the control of the parties make performance impossible, pointless or radically different from that contemplated by the parties.

Question 38

Define Operation of the Law

Answer 38

Sometimes a specific statute, such as the Bankruptcy Act, discharges a contract.

Question 39

In determining if an exemption clause is binding the courts have developed a three-pronged approach

Answer 39

Does the clause cover the circumstances of the particular loss; is it specific enough to encompass the manner of any loss; and
Was the clause the result of an imbalance of power between the parties and is thus unconscionable?
Would it violate public policy to enforce the clause?

Question 40

The Court of Appeal applied a two-pronged test for to determine if a clause should be set as aside as being unconscionable:

Answer 40

Was there an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
The other party’s knowingly taking advantage of this vulnerability.

Question 41

What are three equitable remedies

Answer 41

Performance, injunction, Quantum Meruit

Question 42

Quantum Meruit

Answer 42

Quantum meruit simply means a fair amount is awarded to a person who deserves to be paid for a benefit he or she has conferred. Milke the painter example

Question 43

Injunction

Answer 43

An injunction is an order of the court preventing a party from acting in a particular manner.