Contracts and Torts Flashcards
What are the 3 primary features of the Canadian Constitution?
- Division of powers between federal and provincial/territorial governments
- Creation of the Courts
- Charter of Rights and Freedoms
What are the 4 types of Common Law?
- Public and private law
- Criminal law
- Civil law
- Administrative law
What is public law?
Refers to public as a whole
Ex. Constitutional law, administrative law, criminal law, and international law
What is criminal law?
Deals with crimes and penalties
What is civil law?
Dual distinction from criminal or common law
What is administrative law?
Administrative agencies of government including rule-making, adjudication, and enforcement
What are statutes?
Acts passed by parliament or legislatures
Federal: Criminal law, divorce, national justice system
Provincial: Trade and commerce, property, law enforcement, provincial justice system
What is common law?
Judge-made law
- Developed through judge’s decisions
- Recorded and reported in case-law journals
- Involved in torts and contracts
What is and isn’t tort? How is it resolved?
A wrong committed by one person against another, resulting in harm/loss/injury, but not a crime/breach of contract and resolved through damages (money)
What are the 2 types of tort?
- Intentional (ex. Fraud, trespass, defamation)
2. Unintentional (ex. Nuisance, negligent misrepresentation, negligence)
What are the 4 essential elements of negligence?
- Defendant owed Plaintiff a duty of care
- Defendant breached duty through action/inaction below a required standard of care
- Plaintiff suffered an injury/loss/harm
- Defendant’s breach of action/inaction was the proximate cause of the Plaintiff’s injury/loss/harm
What is the Reasonable Foresee-ability Test?
If at the time of negligent act/omission, the Defendant could have reasonably foreseen the act/omission would result in harm to the Plaintiff, then a duty of care exists
What is an engineer’s Duty of Care?
Owed to owners, but designers only have duty of care if assumed supervision for construction in contractor’s work
What is a “breach of duty”?
When the required skill level of a “standard of care” has not been met by the defendant
What is an engineer’s Standard of Care? 2 points
- Expectation of reasonable competence and currently practicing
- Compliance with accepted practices, statutes, regulations, and codes (at least!)
What is the “But For” test?
But for the act or omission, the harm/loss/injury would not have occurred
What are 5 special cases involving negligence?
- Innovative engineering design
- Duty to warn
- Negligent misrepresentation
- Fiduciary duty
- Product liability
What are the 5 elements of a contract?
- Two or more person with legal capacity
- Intention to create mutual obligations
- Consensus/agreement through offer AND acceptance
- Mutual consideration
- Lawful purpose
Which 4 persons do not have legal capacity to enter contracts?
- Minors, except for student loans/certain business ventures/necessities contract
- Mentally incompetent
- Unincorporated organizations
- Intoxicated
When does intention not exist when signing a contract? 3 occasions
When the party:
- Lacks legal capacity
- Is under duress from physical/economic threat
- Is under undue pressure from a fiduciary
What are the 5 elements of a contract offer?
- Must be communicated to another person
- Remains open until offer accepted/rejected, retracted, countered, or expired
- Contains specific terms of obligation
- Cannot “agree to agree”
- An Invitation to Treat can precede an offer
What are the 3 elements of a contract acceptance?
- Must determine the point it was created
- Must mirror the offer, no changes
- Must be communicated
What is a condition?
If breached, the innocent party has the right to terminate the contract AND sue for damages
What is a warranty?
If breached, the innocent party is entitled to damages BUT does not have the right to terminate the contract
What are 6 ways a contract can be voided after being made?
- One or more of the required elements is missing
- It is based on a mistake that is serious or made by both parties
- There has been fraudulent misrepresentation
- It was made under duress
- It is unconscionable (unfair)
- It is frustrated (impossible)
What are 3 ways a contract can be terminated?
- Performance/completion
- Termination clauses
- Fundamental breach
What are 3 forms of breach?
- Simple breach: Breach of a minor term, does NOT terminate contract
- Anticipatory breach: Notice of intention not to perform, repudiation (reject) of contract and terminates contract
- Fundamental breach: Other party deprived of all benefit, can continue and sue OR void contract and sue
What does breach mean and how does it occur? 4 ways
Failure to perform contractual obligations
- Inability due to lack of resources
- Inadvertence due to lack of intention
- Economic incentive, cost of performance exceeds cost of breach
- Disagreement, opposing views on terms
What are the 3 remedies for breach of contract?
- Damages, monetary compensation
- Specific performance, court-order performance
- Injunction, court-ordered prohibition against action
What are canons of construction?
The system of basic rules and maxims applied by a court to aid in its interpretation of a contract
What are 8 standard clauses in contracts?
- Defined scope of work
- Time is of the essence for deadlines
- Procedure for changes in terms
- Liquidated damages provision for breaches
- Repair warranties
- Termination procedure
- Indemnification, protection from 3rd party legal actions
- Exclusion/limitations/waivers for limiting ability to sue
What are the 4 types of contracts?
- Standard form, for specific industries (ex. Car rental)
- Professional services, standard for engineers
- License agreements, common in tech industries
- Construction, based on payment methods and amount of work
