Enforcement of Contractual Rights/Problems, Discharge of Contract

Question 1

unenforceable contract (3)

Answer 1

statutes of frauds
sales of goods act
illegality

Question 2

Enforceable contract - Requirement of Writing
jurisdiction vs common law vs statutory

Answer 2

Some contracts in jurisdictions must be in writing to be enforceable
in common law no contracts have to be in writing
for statutory contacts they need to be in writing

Question 3

Statutes of Fraud purpose
and where it is effect in Canada

Answer 3

ensure fraud was not perpetrated through lack of sufficient writing in contracts, less lying, liars cannot win cases

everywhere except BC and MB

Question 4

Statute of Fraud indicated that certain types of contacts are not unenforceable because they are not in writing. List 4-6 examples

Answer 4

1. Promise to answer for damages out of estate
2. Guarantee of debt of another without indemnification
3. Agreement made in consideration of marriage
4. Agreement concerning land
5. Agreement not performed for one year
6. Ratification of infants/minority contract

Question 5

1. What does writing mean? - if contract falls within scope of statute of fraud there must be?
2. What is it?

Answer 5

1. Memorandum
2. written record in existence containing critical essential terms of the contract

Question 6

What does writing mean? - Critical/Essential Terms of the contract and which party signs incase of suing

Answer 6

identity of parties, subject of consideration, possession date, signed by parties.
only party to be sued needs to have signed it

Question 7

What does writing mean? - What if contract falls within scope of statute of fraud and there is no memoradndum (3)

Answer 7

contract rendered unenforceable by statute/court
neither party gets a remedy
Court won’t help with parties pre relationship or transfer of goods

Question 8

Courts Method to limit statute of fraud - Doctrine of part performance

Answer 8

enforces contracts concerning land if plaintiff, suffering loss, can show they initiated performance of contract with reliance on it, courts accept in lieu of memorandum

Act of performance can suggest existence of contract, deposit not enough

Question 9

Sales of Goods Act and regards to illegality and courts

Answer 9

Sales of chattels in Manitoba over 50$ and Receipt is sufficient. With regards to illegality, can affect property relationships but courts won’t get involved.

Question 10

1.Doctrine of Substantial Performance 2. goal

Answer 10

performance that is not technically complete may still be legally sufficient—assuming that the defects are not “material” to the agreement

Equity attempt to limit unfair potential of the statutes of fraud as liars (part performance) victorious in courts

Question 11

how courts review contracts to avoid bias towards enforceability: Literal plain, strict approach

Answer 11

restricts interpreting to dictionary, but can have more than one dictating certainty

Question 12

how courts review contracts to avoid bias towards enforceability: Liberal Approach

Answer 12

looks to intent of parties in drafting the agreement, Stresses circumstances around contract, negotiation, knowledge of parties (context)

Question 13

Parol Evidence rules (3)

Answer 13

• rule of evidence
• create certainty in contracts
• submit element to fact finder to consider

Question 14

Where there is a situation of bargaining or negotiation where parties have to put in a final form of agreement, parol evidence states

Answer 14

a term previously agreed upon by the parties but not included in the final written form of contract will not later be permitted to add to or contradict the contract

Question 15

What does “parol” mean in the contract context

Answer 15

extrinsic (not part of) to or outside the written agreement

Question 16

Parol Evidence Rules apply to two things and describe what they reduce to

Answer 16

oral agreement which reduce to writing
and written agreement reduced to formal document under seal

Question 17

Parol Evidence rules operates to exclude (2)

Answer 17

information not found in the written agreement or a party that claims should be added

Question 18

Exceptions to Parol Evidence rules:
It doesn’t (4)

Answer 18

1. apply if party can show written contract was never to embody all its terms
2. evidence of amending agreements reached subsequent of written agreement
3. exclude collateral agreements
4. exclude condition precedence

Question 19

Contra Preferentum

Answer 19

courts read the contract against interest of party that created it, if two interpretations possible

Question 20

Judicial Notice

Answer 20

Some things in a contract doesn’t have to be proven

Question 21

Agreements to Agreement are _______ so contract is ______

what clause can save the contract

Answer 21

uncertain so contract is void
arbitrator clause can save contract

Question 22

Contract incompleteness

Answer 22

failure to include data in which contract begins so agreement fails

Question 23

Implied terms in interpreting contract (2)

Answer 23

1. statutory implied terms
2. Common law implied terms

Question 24

What is an implied term and what is it result of

Answer 24

term that parties have not expressly included in their agreement but in opinion of court, would as reasonable people have included when making contract

result of precedence cases

Question 25

reasonable notice provision with employees (2 situations)

Answer 25

• employer wants to terminate employee, give reasonable notice
• employees give reasonable notice to employer for quitting

Question 26

What factors determine reasonable notice?
What time is it usually?
What can be provided for equivalent notice to a dismissed employee?

Answer 26

• length of service, type of occupation, state of economy, age of employee
• 2 and 4 weeks for every year to maximum of 2 years
• Severance payment

Question 27

Doctrine of Privity

Answer 27

contract cannot as a general rule confer rights or oppose obligations arising under it on any person except parties to a contract

Question 28

Doctrine of Privity - rights, liabilities, and suing

Answer 28

no one except the parties in the contract can acquire rights or subject to the liabilities, or ability to sue

Question 29

Doctrine of Privity - what is exception?
1. Insurance
2. A trust
3. Novation

Answer 29

only insurance is an exception

Question 30

1. Discharge of contract (3)

Contract discharged……obligation is at an ____ consideration has been _____ and obligations have been _________

Answer 30

1. cancel obligation, contract null and inoperative.

2.end, exchanged, satisfied

Question 31

Discharge by performance -
- Tender of performance
- an advantage of it
- primary reason

Answer 31

One party attempts to perform but other refuses or accepts.
Adv: alleged of breach of contract
Primary Reason: Evidence

Question 32

Discharge by agreement: Describe The Waiver and what it becomes if ineffective

Answer 32

formally discharge both parties, parties agree that contract doesn’t have to perform.

ineffective when one party performs so becomes gratuitous promise

Question 33

Discharge by agreement: describe the Substituted agreement

Answer 33

new agreement, replace first agreement as it is discharged

Question 34

Novation

Answer 34

Substituted agreement with new party

Question 35

Accord and Satisfaction

Answer 35

when a party does not want to perform their agreement in contract, make an offer of a cash payment to buy out

Question 36

Option to terminate

Answer 36

ones offering the contract can buy the parties contract to terminate them etc sport contracts

Question 37

Discharge: Contact provides for its own dissolution - Condition Precedent

Answer 37

future or uncertain event which must either happen or not happen before promissor’s contractual liability is established

Question 38

Discharge: Contact provides for its own dissolution - Condition Subsequence`

Answer 38

uncertain event that happened of which brings promissor’s contractual liabilities to an end. An out is reserved is certain circumstances

Question 39

Discharge by frustration

Answer 39

courts excuse persons for failure to perform their contracts where inability to perform is not their fault

Question 40

Discharge by frustration - two examples

Answer 40

1. performance has become impossible
2. Performance physically possible but now has far different meaning than at time of original contract

Question 41

Frustrated Contracts Act

Answer 41

Reallocation of benefits already exchanged when contract discharged and future performance relieved