Contracts Flashcards
contract
- legally binding agreement
what is required to initiate a contract
- intention
- mutual consideration
- offer and acceptance
1) offer may only be accepted by the party whom the offer is made
2) an offer must be communicated before acceptance
Advertisement is not an offer–it is an invitation to do business
Competition Act
4 main points
[1] applies to private business, not government
[2] restraint of trade is illegal
— price fixing
— mergers/acquisitions to create monopoly
— agreements not compete
Exceptions:
- agreement by a seller of a business, which includes goodwill, covenants not to compete on reasonable terms -5 year max -business area
- agreement by a key employee not to compete on reasonable terms
[3] offence to advertise fraudulently (bait and switch)
[4] offence not to sell at the lowest ticketed price
terminator of an offer can happen via ______
- death, bankruptcy, mentally incompetent
- revocation (can revoke offer up until the moment it’s accepted)
- rejection (or counteroffer)
- expiry of a preset time
- expiry of a reasonable time
unilateral contract
- one party is bound (-reward, -commercial promote)
bilateral contract
- two parties are bound to each other
mutual consideration
- exchange in the present or future (trade)
- adequacy of consideration is not an issue–as long as it’s something for something
no mutual consideration, therefore no contract
- gratuitous -given or done free of charge
- (promise for) past consideration
- gratuitous reduction of a debt (bank case)
seal
- a contract under seal is a formal contract which does not require any consideration and has the seal of the signer attached
- a contract under seal must be in writing or printed on paper.
injurious reliance
- term commonly used to force another to perform their obligations under a contract
- institution or charity
- incurs significant cost (athletic centre in GP name case)
quantum meruit
- “amount merited”
- obligation to pay going rate
capacity
who lacks capacity
how does lack of capacity impact a contract
- determines whether they may make binding amendments to their rights, duties and obligation
- minor
- substance impaired
- mental incompetence
Executed contracts:
- fully performed contract
- part lacking capacity may repudiate contract only if they have been taken advantage of
Unexecuted contracts:
- not fully performed contract
- party lacking capacity may repudiate, EXCEPT
———responsible only for willful damage
———necessaries (food, shelter, station in life)
———beneficial contracts of employment
legality
- courts do NOT enforce or reverse illegal contracts
insurable interest
- when loss or damage to it would cause financial loss or certain other kinds of losses
- family
- economic (employees)
Statute of Frauds
these contracts have to be in writing:
1) Guarantee - agreement to be responsible for the contractual obligation of another party
2) Agreements to be responsible for the tort obligations of another party
3) Agreements by executors to be personally responsible for the debts of an estate
4) Marriage agreements
- prenuptial agreement -separation agreement
5) Long-term agreement (over 1 year)
6) Land
Exception - Doctrine of Part Performance
doctrine of part performance
- when there is an oral agreement that is otherwise governed by the Statute of Frauds, the doctrine of part performance treats partial performance in reliance on the oral agreement and acceptance of such performance as evidence of an enforceable contract
Must contain all of the following to apply:
1) Land only
2) Clear, otherwise enforceable verbal agreement
3) One the parties performs acts of the land consistent only with the contract (mortgage payment does not count)
4) HARDSHIP
minimum requirements of a memorandum in writing
- identify the parties
- basic terms -mutual consideration
- signed by the party against whom enforcement is sought
parole evidence rule
- court will not accept or hear evidence of verbal agreements that precede a written contract
Exceptions: (4x4 truck case)
1) Explain the term (SLT)
2) Condition precedent “subject to” (doesn’t have to be in contract, ex: bank loan)
3) Implied term (dead horse)
4) Collateral agreement -side agreement with mutual consideration (extended warranty, separate contract)
what makes a contract unenforceable
- duress
- undue influence
- mistake
- ——— unilateral -contract enforceable/valid (textbook quality selling)
- ———– mutual -contract is unenforceable (car burned down warehouse)
- misrepresentation
duress
- wrongful pressure exerted upon a person in order to coerce that person into a contract that he or she ordinarily wouldn’t enter
via:
- physical force
- threat
- extortion
undue influence
- under the influence of a dominant party
- involves one person taking advantage of a position of power over another person
mistake as to the existence of subject matter
mutual mistake - contract is unenforceable, ONLY if the subject matter is unique (Ralph case)
mistake as to identity
unilateral mistake - contract is enforceable unless identity is relevant
non est factum
- unable to read contract
- unable to get assistance
- mistaken as to nature of contract
unilateral mistake - contract is unenforceable
rectification of a contract
court can correct a contract, if:
- clerical error
- neither party aware of clerical errors
- clear ambiguous contract
- no intervening negotiation
misrepresentation
- misstatement of a material fact
innocent misrepresentation
negligent misrepresentation
- expenses and/or rescission
fraudulent misrepresentation
- expenses and/or rescission
- damages
misrepresentation by nondisclosure
misrepresentation by omission
utmost good faith contracts
- insurance
- partnership
- agency
- trust
privity
- only the parties to a contract have rights or obligations, only parties can sue or be sued
novation
replace a party WITH consent
statutory assignment
Allows C to sue A - Written assignment agreement between assignor and assignee - Must be signed by the assignor - Absolute (condition turnover) - Written notice of assignment delivered to promisor All contracts can be assigned Except where prohibited Or - for personal service
discharge (8)
1) performance
tender of performance (prevented from performing)
2) exercise an option to terminate
3) nonoccurence of a condition precedent
4) occurrence of a condition subsequent
5) occurrence of an implied term (Act of God)
6) doctrine of frustration
-unable to perform contract -beyond control - unique subject matter
7) by operation of law
8) by subsequent agreement
express repudiation
- repudiation of a contract means a refusal to perform the duty or obligation owed to the other party
- nothing happens
no performance - if breached, innocent party is discharged
- party that suffers breach may sue for damages or other remedies
anticipatory breach
- an act or declaration before performance is due under a contract that indicates that the party will not perform his or her obligation
- conclusive (early)
doctrine of substantial performance
- attempt is made to perform the requirements of the agreement
- a defendant when sued for non performance cannot avoid paying damages by showing he substantially performed or came near to performing the requirements of the contract
- (put in a position you would have been in had the contract been completed)
- contract price minus costs to complete or fix
fundamental breach
- no value
- breach to root of contract
^ this VOIDS
exemption clause
reliance damages (in the case of a breach)
- monies spent prior to breach
consequential damages (in the case of a breach)
- flow from the breach - third party liabilities
expectation damages (in the case of a breach)
- lost profit
equitable remedies
an order of a court which requires a party to perform a specific act, usually what is stated in a contract
- specific performance
- ——unique
- ——land
- injunction (court ordered cease and desist)
liquidated damages
- preset damage in the contract
- reasonable damages
