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B-Sen > Contracts > Flashcards

Contracts Flashcards

1
Q

What is the philosophy of contracts? (4)

A

1) Freedom of contract
2) Promised exchanges
3) Bargain
4) Future expectation created

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2
Q

What is the source of contract law?

A

1) Constitution Act, 1867 Section 92 (13) : Property and Civil Rights
2) Provincial constitutional jurisdiction
3) Mostly left to common law judges to develope

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3
Q

Forming of a contract - Arm’s length

A

arm’s length - the description of an agreement made by two parties

1) freely and independently of each other,
2) without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other.

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4
Q

Forming of a contract - Arms length law perspective

A
  • The law assumes that you don’t traditionally make contracts with family members and rather with people at arm’s length. Strangers and such.
  • With family and friends the courts do no assume is a legal documentation
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5
Q

How do you make a contract with someone not at “arms length” (family)

A
  • If you do want to go make a contract with family, social settings, etc – you must state explicitly to overrule courts assumption
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6
Q

What are the two things needed to form a contract

A

Intention to create legal relations. This means two things,
1) ARMS LENGTH

2) THE ACKNOWLEDGEMENT THAT THE OPPOSITE PARTY WILL TAKE TO COURT FOR ENFORCEMENT

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7
Q

The presumption in the formation of a contract? (2)

A

1) Contract made by parties not a arms length

2) Contract made by parties at arms length

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8
Q

Need for writting? - Is an oral contract legally enforceable?

A

yes!

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9
Q

Statue of Frauds: three kinds of contracts MUST be written

A

1) Sale of land
2) guarantees of indemnities (security or protection against a loss or other financial burden)
3) Performance exceeds one year

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10
Q

What is an indemnity?

A

security or protection against a loss or other financial burden.

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11
Q

Give an example of a Guarantor?

A

A gives money to B and C promises to pay it back to A

C is the Guarantor

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12
Q

When your hired why is it that your not explicitely given a time frame?

A

because your looked as hired indefinitive

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13
Q

Are most consumer transactions oral or commercial?

A

Oral

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14
Q

Are most commercial transaction oral or written?

A

written. Think Equipment, supplies, and machines

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15
Q

NEED FOR WRITING? Given the fact that most contracts are not obligated to be written, why is it so prevelant?

A

1) Easy proof if enforcement is required. Signatures equate consent on behave of party
2) Guidance to performance - standards established

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16
Q

NEED FOR WRITING? What kind of writing is required by law?

A

A Memorandum

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17
Q

NEED FOR WRITING? What is a Memorandum?

A

Anything on paper which is signed for a certain purpose/ objective

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18
Q

NEED FOR WRITING? Suppose you don’t write a contract and there is no proof of certain actions necessary to honour the contract. What are your options for enforcing these actions when no memorandum is available as proof?

A

convince the judge that there is a clear motive /CONDUCT of contract (HAIL MARY)

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19
Q

NEED FOR WRITING? What is a Quantum Merui?

A

a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract.

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20
Q

NEED FOR WRITING? What is a Doctrine of Part Performance?

A
  • Part-Performance doctrine is an equitable principle that allows a court to recognize and enforce an oral contract despite its legal deficiencies
  • conduct between the parties that is unequivocally referable to the existence of this contract”
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21
Q

Offer - What is an offer?

A

an expression of willingness with the apparent intention that it shall become legal and binding when it is accepted by the other party

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22
Q

What does an offer contain? (2)

A

1) Subject matter

2) Price

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23
Q

What is an offerOR

A

someone who gives an offer to another

24
Q

What is an offerEE

A

someone who receives from someone

25
Q

At what point is an offer effective?

A

when the offerEE receives it

26
Q

What does offer must be distinguished from?

A

An invitation to treat

27
Q

What is an invitation to treat?

A

Not a legal offer. Simply, an invitation to someone or the public to come and make an offer

28
Q

What is an example of an invitation to treat

A

displays or advertisments

29
Q

What is a bilateral contract?

A

bilateral contract is a reciprocal arrangement between two parties by which each promises to perform an act in exchange for the other party’s act. Normal contract

30
Q

What is a unilateral contract?

A

were an offer can only be accepted by performance.

A unilateral contract can be formed by an express offer stating that the offer can only be accepted through performance.

31
Q

An offer made to the whole world can still in some cases be an offer - name a case

A

Carbolic Smoke Ball case

32
Q

What is key in determinng an offer

A

Substance over form – what it is in fact is more important then the offer

33
Q

When is an offer terminated? (4)

A

1) Accepting an offer
2) Revocation
3) Rejection
4) Counter offer
5) Lapse

34
Q

When is an offer terminated - Revocation expand (2)

A

1) Cancelling it and no new offers made

2) Cancel before accepted

35
Q

When is an offer terminated - Rejection

A

1) straight up rejecting an offer

36
Q

When is an offer terminated - Counter-offer

A

1) Kills offer and births a new one

37
Q

When is an offer terminated - Define Lapse and name two sub categories

A

Offer expires

1) Express deadline for acceptance passes - expressed lapse
2) Within a reasonable time of making the offer

38
Q

when is the expiry (lapse) of a subject matter relevant?

A

When dealing with food as it spoils.

39
Q

What do we assume by sponantous offers?

A

There is hireachy of modes of communication that imply urgency and a standard of lapse. For instance, email you assume one to two days, expiry. Phone call you expect an expiry of that day. Face to face you expire immedietly .

40
Q

When and how is acceptance of a contract achived ? (3)

A

1) When and must be communicated by offeree to offeror
2) Must be uncoditional
3) In consumer transactions, offers and acceptance are implied by conduct - no words needed

41
Q

Acceptance of a contracts - What are the excemption to “must ve communicated by offeree to offeror (2)

A

1) Unilatteral offer - perfome

2) Postal acceptance rule - letter is accepeted when you deposit letter

42
Q

What distinguishes a contract from a gift?

A
  • Both sides must be promising to give up something during contract – seriousness.
    -Both parties must promise, at the time the contract is made, to give up some consideration
    this forces them to address their minds to their contractual obligations
43
Q

What are forms of consideration? (5)

A

1) Money
2) Service
3) Good
4) Relinquishment of legal rights
5) Relinquishment of legal rights

44
Q

Does a handshake make a contract legal?

A

no

45
Q

What is the concept of mutual consideration?

A

Each party gives up something of value (consideration)

46
Q

Does the adequacy of consideration matter?

A

The AMOUNT of consideration exhanched between two parties is irrelevant

47
Q

Does consideration given in the past count?

A

Does not count

48
Q

What are the exceptions to consideration?

A

1) Seal is a complete substitude. Gives impression of legality
2) Equity promisory estoppel if detrimental reliance

49
Q

What is Equity promisory estoppel if detrimental reliance?

A

legal principle that a promise is enforceable by law, even if made without formal consideration, when a promisor has made a promise to a promisee who then relies on that promise to his subsequent detriment.

50
Q

What is it called when a party does not pay consideration

A

a breach

51
Q

What to do in new settlements (compromises)

A

Something new consideration must be exchanged between the two parties. You cannot simply reduce the cost of a project but rather an exchange must occur orm else it aint enforceable

52
Q

When accessing a 2nd contract –

A

analyze what is given up and what are they getting

53
Q

Capacity to contract

A

1) Children
2) Insane people
3) Disabled

54
Q

Capacity is determined at the time of the contract not at the time of the performance - T OR F

A

truuuuu

55
Q

Capacity to Contract - General Rule - Party with incapacity may elect to ratify or repudiate the contract. T or F

A

Truth

56
Q

What does the General Rule apply ONLY to:

A

1) Contracts for necessaries is always binding
2) Contracts for non-necessaries – No shelter or food, games
3) Necessary – need to live (ENFORCEBLE)

B-Sen (4 decks)

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