Final Flashcards
1
Q
What is the difference between civil and criminal law? Which is harder to prove?
A
Civil law is between private parties (ex breach of contract, property, damages) while criminal law involves violating the criminal code (ex robbery, murder)
Criminal law is harder to prove.
2
Q
Business Law
A
Set of established rules governing commercial relationships, including enforcement of rights.
3
Q
Law
A
Set of rules intended to guide conduct in society, by protecting people and their property, facilitating personal and commercial interactions, providing mechanisms for dispute resolution.
4
Q
Canada’s Personal Information Protection and Electronic Documents Act
A
Requires businesses to protect customers’ personal information.
5
Q
Who resolves complaints to that violate the PIPEDA?
A
The privacy commissioner.
6
Q
What are the two ways that law protects society?
A
- Sets rules with penalties to encourage compliance.
2. Seeks to hold those who break the law accountable for misconduct.
7
Q
Contract Law
A
Rules that make agreements binding and facilitate planning and enforcement of expectations.
8
Q
Litgation
A
Suing
9
Q
Legal Risk Management Plan
A
Comprehensive action plan for dealing with legal risks involved in operating a business
10
Q
Business Ethics
A
Moral principles that seek to determine right and wrong in the business world.
11
Q
What are the three branches of government?
A
Legislative, executive, judicial.
12
Q
What does the legislative branch do?
A
Create statues and regulations.
13
Q
What does the executive branch of government do?
A
Implements government policy.
14
Q
What does the judicial branch of government do?
A
Adjudicates disputes.
15
Q
Constitutional Law
A
Supreme law of Canada that constrains how branches of government exercise power.
16
Q
Liberalism
A
Political philosophy emphasizing individual freedom.
17
Q
Constitutional conventions
A
Code of ethics governing political processes, but cannot be enforced in court.
18
Q
Statute Law and examples?
A
Formal, written laws such as Criminal Code of Canada and Tobacco Access Act.
19
Q
Parliament
A
Federal legislative branch comprising the House of Commons and Senate.
20
Q
Laws are passed by the _____ and approved by the ______.
A
House of Commons, Senate
21
Q
What are the legislative bodies of municipalities called?
A
City councils
22
Q
Jurisdiction
A
Power that a given level of government has to enact laws.
23
Q
What are some areas in which the federal government may enact laws?
A
Trade, currency, national defense, banking
24
Q
What are some areas in which the provincial government may enact laws?
A
Hospitals, administration of justice, incorporation of provincial companies
25
What are some areas in which the municipal government may enact laws?
Zoning, subdivision, municipal taxation, licensing.
26
Which level of government has exclusive jurisdiction over criminal law?
Federal
27
What are some areas in which federal and provincial governments may have shared jurisdiction?
Environmental protection, rules for toxic substances
28
Paramountcy
Federal laws prevail if provincial and federal laws come into conflict.
29
Formal executive
Branch of government responsible for ceremonial features of government.
30
Who is the executive government represented by?
The Governer General
31
What is the role of the political executive?
Formulates and executes government policy and administers all departments of government.
32
What level of government do businesses lobby?
Executive
33
Who are chief executives?
Prime minister, premier, cabinet minister, civil servants.
34
Cabinet
All ministers of various government departments, as well as prime minister and premier.
35
Regulations
Rules created by political executive that have the force of law.
36
Who appoints judges?
Federal and provincial governments
37
Inferior Court
Judge is appointed by provincial government and usually handles smaller cases.
38
Superior Court
Judge is appointed by federal government and handles larger, more serious cases.
39
Supreme Court of Canada
Final court for appeals in Canada.
40
In commercial cases, which court does litigation usually end at?
Provincial (inferior) court.
41
Federal Court of Canada
Deals with some types of litigation involving federal government.
42
Canadian Charter of Rights/Freedoms
Guarantee of specific rights and freedoms in the Constitution.
43
Bill
Proposed legislation.
44
Royal Perogative
Historical rights and privileges of the Crown, right to conduct foreign affairs and declare war
45
Common Law
Rules formulated in judgement
46
Precedent
Earlier case used to resolve a current case due to its similarity
47
Equity
Rules focusing on what would be fair given the specific circumstances, as opposed to what the strict rules of common law might dictate.
48
Domestic Law vs International Law
1. Internal law of a country including statute and common law
2. Governs relations between states and entities with international legal status.
49
Substantive vs Procedural Law
1. Rights, duties, liabilities
| 2. Governing the procedure to enforce rights, duties, liabilities
50
Public vs Private Law
1. Relationship between persons and government (criminal, tax, constitutional)
2. Dealings between persons (contract, tort, property)
51
Common vs Civil Law
Civil law applies in Quebec
52
Administrative Law
Rules created by those having governmental powers (boards, agencies, commissions, tribunals)
53
Alternative Dispute Resolution
Range of options for resolving disputes as an alternative to litigation.
54
Negotitation
Parties discuss differences and attempt to reach a mutually agreeable resolution.
55
Release
Written/oral statement discharging another from an existing duty
56
Confidentiality clause
Parties cannot reveal terms of settlement.
57
Mediation
Neutral person assists parties in reaching a settlement
58
Arbitration
Third person appointed by parties makes a decision.
59
Plaintiff
Party that initiates lawsuit against the other party.
60
Defendant
Party being sued
61
Limitation Period
Time period specified by legislation for commencing legal action
62
Class Action
Lawsuit launched by one person who represents a class of persons having similar claims again the same defendant.
63
What are the four stages of lawsuits?
Pleadings, discovery, trial and decision, enforcement
64
What happens during pleadings?
Formal documents exchanged, defendant must respond to allegations or else loses, defendant prepares defence or counterclaim.
65
What happens during discovery?
Disclosure of evidence to support claims, try to settle
66
What happens during trial and decision?
A judge decides verdict based on evidence presented. Burden of proof requires plaintiff to prove its case.
67
Solicitor/client costs
Loser must pay full expenses of the successful party.
68
What happens during enforcement?
Judgement debtor - party ordered by court to pay specified amount to winner
69
Tort
Any harm or injury caused by one person to another.
70
Intentional Tort
Harmful act done deliberately
71
False Imprisonment
Unlawful detention or physical restraint
72
Battery
Intentional infliction of harmful physical contact
73
What are two examples of intentional tort?
False imprisonment and battery.
74
Negligent Tort
Not intentional, but due to negligence.
75
What is the difference between criminal and tort law?
Criminal punishes the violater while tort law compensates the victim.
76
Primary liability
One's own wrongdoing.
77
Vicarious Liability
Relationship with the person who committed the tort.
78
Tort-feasor
Person who commits tort.
79
Joint tort-feasors
Multiple people committing tort.
80
Contributory Negligence
Defence claiming that the plaintiff is at least partially responsible for the harm that occurred.
81
Worker's compensation legislation
Provides no-fault compensation for the injured employees in lieu of their right to sue in tort.
82
Non-pecuniary damages
Damages awarded to compensate for pain, suffering, loss of enjoyment of life, loss of life expectancy
83
Pecuniary damages
Cost of future care, loss of future income, special damages
84
Punitive damages
Awarded to plaintiff to punish defendant for malicious, oppressive and high-handed conduct.
85
Aggravated damages
Compensation for intangible injury such as distress and humiliation.
86
Occupier
Someone who has some degree of control over land or buildings on land.
87
Occupier's liability
Liability occupiers have to those entering their property.
88
Liability at common law
Liability determined by classifying the visitor as a contractual entrant, invitee, licensee or tresspasser
89
What is a contractual entrant?
Person contracted and paid to enter, ex: visitor to a museum
90
Invitee
Person whose presence on property benefits the occupier, ex: customers in a store
91
Licensee
Person permitted by occupier to enter for licensee's benefit, ex: person taking shortcut through a building
92
Trespasser
Person who goes on property without invitation.
93
Nuisance
Addresses conflicts between neighbours stemming from land use such as odour or noise - must substantially interfere with use and enjoyment of land and be permanent/ongoing
94
Trespass to land
Protects person's possession of land from wrongful interference.
95
Passing off
Presenting another's goods/services as one's own
96
Interference with contractual relations
Incitement to break contractual obligations of another
97
Defamation
Public utterance of false statement that harms another's reputation
98
Justification (as a defence)
Defence to defamation based on the defamatory statement being substantially true
99
Qualified privilege
Defence to defamation based on defamatory statement being relevant, without malice and communicated only to a party that has legitimate interest in receiving it.
100
Fair comment
Defence to defamation established when the plaintiff cannot show malice and the defendant can show that the comment concerned public interest, was factually based and expressed a view that could have been expressed by anyone
101
Responsible communication on matters of public interest
Defence to defamation that applies when some facts are incorrectly reported but the publication is on a matter of public interest and the publisher was diligent in trying to verify the allegation.
102
Absolute privilege
Defence to defamation in relation to parliamentary or judicial proceedings.
103
Intrusion upon seclusion
Intentional, offensive invasion of another's personal affairs without lawful justification.
104
Injurious falsehood
Liability for false statement about another's goods/services that is harmful.
105
Reasonable care
Care that a reasonable person would exhibit in a similar situation
106
What are 4 steps to establish a negligence action?
1. Does the defendant owe the plaintiff a duty of care? (reasonable forseeability, neighbour, proximity)
2. Did the defendant breach the standard of care?
3. Did the defendant's careless act cause the plaintiff's injury? (causation)
4. Was the injury suffered by the plaintiff too remote?
107
Remoteness of damage
Absence of a sufficient close relationship between defendant's action and plaintiff's injury.
108
Thin skull rule
Principle that a defendant is liable for the full extent of a plaintiff's injury, even where a prior vulnerability makes the harm more serious than it otherwise might be.
109
Voluntary assumption of risk
Defence to negligence whereby plaintiff consented to accept the risk inherent in the even that gave rise to the loss (ie by signing a waiver)
110
Professional liability
A professional making incorrect statements carelessly.
111
Product liability
relating to the design, manufacture or sale of a product.
112
Strict liability
Makes the defendant liable for the plaintiff's loss even though the defendant was not negligent and exercised reasonable care
113
Which level of government legislates insurance regulations?
Provincial
114
Duty to disclose
Obligation of the insured to provide all information that relates to the risk being insured
115
Insurable interest
Financial stake in what is being insured.
116
Indemnity
Obligation on the insurer to make good the loss - the insured should come out even, not make a profit.
117
Subrogation
Right of the insurer to recover the amount paid on a claim from a 3rd party that cause the loss.
118
Salvage
Insurer's right to the title of what remains of property after paying for a total loss.
119
Forfeiture rule
A criminal should not be permitted to profit from a crime
120
Rider
Clause altering or adding coverage in a policy.
121
Endorsement
Written evidence of a change to an existing insurance policy.
122
All-risks property insurance
Coverage that protects against all types of physical loss or injury arising from an external cause unless specifically excluded.
123
Which type of auto insurances are mandatory and optional?
3rd party liability is mandatory, collision is optional
124
3rd party liability insurance
Auto insurance covering the death/injury of others
125
Collision insurance
Auto insurance covering damage to the vehicle.
126
No-fault system
A tort-feasor cannot be sued for injury or death.
127
Occupier's liability insurance
Covers injuries suffered on the occupier's property.
128
Comprehensive General Liability Insurance
Cover liabilities incurred during the course of a business from a customer or a third party - not a direct loss incurred by the business, ex a faulty product causes a customer to lose money
129
Errors and Omissions insurnace
Covers damage resulting from performance of professional services.
130
Directors and Officers Liability Insurance
Covers losses not reimbursed by the corporation, coverage for corporation of amounts paid to indemnify directors/officers for their losses, coverage to protect corporation from claims from securities litigation.
131
Property Insurance
Can either insure for replacement value or property's cash value
132
Business Interruptions Loss Insurance
Covers losses resulting from a need to shut down
133
Environmental Impairment Insurance
Covers costs associated with a spill or pollution.
134
Key-Person Life Insurance
Covers costs to buy the share of a business owner if he/she dies.
135
Contract
Deliberate agreement between two or more competent persons, not necessarily in writing, supported by mutual consideration to do some act voluntarily. Enforceable in court.
136
Most rules governing contracts are based on ______ law
Common
137
Objective standard test
How would a reasonable person view the matter?
138
Equal bargaining power
Legal assumption that parties to a contract are able to look out for their own interests.
139
Economic Breach
When one party breaches the contract because it is more financially rewarding than to keep it.
140
Agreement
When parties reach a consensus about rights and obligations
141
Offer
Promise to perform specified acts on certain terms.
142
Invitation to treat
Expression of willingness to do business. No legal relevance, ex: vague comments
143
Standard form Contract
Take it or leave it contract, customer agrees to set of terms that favours the other side, no negotiations occur (ex rental cars, bank loans)
144
Revocation
Withdrawal of offer (can revoke if other party did not pay yet)
145
Option Agreement
In exchange for payment, an offeror is obligated to keep an offer open for a specified time. If offeror withdraws before the option agreement permits, they have breached the contract.
146
Tendering process
When owner wants bids for a large project, contractors submit tenders (offers) that set out prices
147
Lapse
Expiration of offer after specified over reasonable period
148
Rejection
Refusal of offer
149
Counteroffer
Rejection of offer and proposal of a new one
150
Acceptance
Unqualified willingness to enter into a contract on the terms in the offer
151
Postbox rule
Acceptance is effective at the time of mailing the acceptance.
152
Formalization
Even though offer and acceptance occurred, signing a formal contract may be needed.
153
Gratuitous Promise
Promise unsupported by consideration - cannot sue if breached
154
Pre-existing legal duty
A legal obligation that a person already owes
155
Promise under seal
Seal placed beside promise
156
Promissory Estoppel
Doctrine whereby someone who relies on a gratuitous promise may be able to enforce it
157
Partial payment of debt
When customer cannot pay its account but offers a smaller amount to settle the debt in full.
158
Rebuttable presumption
Legal presumption in favour of one party that the other side can seek to rebut or dislodge by leading evidence to the contrary.
159
Express terms
Provision of a contract that states a promise explicitly.
160
Implied terms
Provision not expressly included in contract but necessary to give effect to the parties' intention.
161
Entire contract clause
Term in a contract in which parties agree that their contract is complete as written.
162
Contractual quantum meruit
Awarding one party a reasonable sum for goods/services provided under a contract.
163
Parol Evidence Rule
Rule that limits the evidence a party can introduce concerning the contents of the contract.
164
Condition subsequent
Event or circumstance that, when it occurs, beings existing contract to an end.
165
Condition precedent
Event or circumstance that, until it occurs, suspends the parties' obligations to perform contractual obligations
166
Limitation of liability clause
Term of contract that limits liability for breach to something less than would otherwise be recoverable.
167
Exemption clause
Term of contract that identifies events causing loss for which there is no liability.
168
Liquidated damages clause
Temr of contract specifying how much one party must pay the other in the event of a breach
169
Penalty clause
Term not enforceable because it sets an exorbitant amount that one party must pay to the other in the event of a breach.
170
Voidable contract
A contract that, in certain circumstances, an aggrieved party can choose to keep in force or bring to an end.
171
Void Contract
A contract involving a defect so substantial that it is of no force or effect
172
Legal capacity
Ability to make binding contracts ( age of majority, mental capacity)
173
Duress
One party is threatened to enter the contract
174
Economic duress
threat of economic harm that coerces the will of other party and results in a contract (voidable)
175
Undue Influence
Unfair manipulation that compromises someone's free will or choice
176
Unconscionable contract
Unfair contract formed when one party takes advantage of the weakness of another (proof of inequality between parties, proof of improvident bargain, proof of exploitation)
177
Misrepresentation
False statement of fact that causes someone to enter a contract.
178
Rescission
Remedy that results in the parties being returned to their pre-contractual positions.
179
Misrepresentations must be... (5 things)
1. False
2. Clear
3. Material to the contract
4. One that induces the aggrieved party to enter the contract
5. Fact and not opinion
180
Fraudulent misrepresentation
Speaker has the deliberate intent to mislead or makes a reckless statement that is not necessarily true.
181
Negligent misrepresentation
Statement made carelessly
182
Innocent misrepresentation
Not fraudulent or negligent
183
Mistake
Error made by one or both parties that seriously undermines the contract
184
Common mistake
Both parties to the agreement share the same fundamental mistake.
185
Illegal contract
Cannot be enforced because it is contract to legislation or public policy
186
Public policy
Community's common sense and conscience
187
Non-solicitation clause
Forbids contact with business' customers
188
Non-competition clause
Forbids competition for a certain period
189
Guarantee
Conditional promise to a creditor to pay a debt if the debtor defaults
190
Vicarious performance
Performance of contractual obligations through others
191
Novation
Substitution of parties in a contract or replacement of one contract with another.
192
Assignment
Transfer of a right by an assignor to an assignee - assignee can now collect the assignor's debts
193
Frustration
Termination of contract upon occurrence of an unforseen catastrophic event which makes contractual performance impossible or prevents contract from being performed in a manner similar to what was expected
194
Force majeure clause
Allows party to delay or terminate contract in even of natural disaster, military action, strikes, monetary changes, governmental action
195
Balance of probabilities
Proof that there is a better than 50% chance that the circumstances of the contract are as the plaintiff contends.
196
Condition
Term that, if breached, gives the innocent party the right to terminate the contract and claim damages.
197
Warranty
Minor term of contract that if breached, gives the innocent party the right to claim damages only.
198
Innominate term
Term that cannot easily be classified as either a condition or a warranty.
199
Anticipatory Breach
Breach that occurs before the date for performance
200
Expectation damages
Provide the plaintiff with monetary equivalent of contractual performance
201
Duty to mitigate
Obligation to take reasonable steps to minimize the losses resulting from a breach of contract
202
Equitable Remedies
Remedies for rare situations where damages would be an inadequate remedy for breach of contract.
203
Specific Performance
Instead of ordering compensation, the court orders the breaching party to do what the contract obliged them to do.
204
Injunction
Order to restrain party from beaching a promise not to do something.
205
Interlocutory Injuction
Order to refrain from doing something for a limited period of time.
206
Restitutionary Remedies
Calculated based on the defendant's gain rather than the plaintiff's losses.
207
Unjust enrichment
When one party has undeservedly secured a benefit at the other party's expense.
208
Independent contractor
Person in a working relationship who does not meet criteria of employment.
209
Dependent contractor
Person who is an independent contractor but has a relationship of economic dependency with the employer as a result of working almost exclusively for the employer for a long period.
210
What are 3 things that distinguish a contractor from an employee?
1. Degree of control exercised over individual by contractor
2. Ownership of tools, chance of profit, risk of loss from performance
3. Degree of integration
211
Adverse effects discrimination
Discrimination that occurs as a result of a rule that appears neutral but in its effects if discriminatory.
212
Systemic discrimination
Discrimination that results from the combined effect of many rules, practices and policies.
213
Bona fide occupational requirement
Defence to discrimination that excuses discrimination on a prohibited ground when it is done in good faith and for a legitimate business reason.
214
Duty to accommodate
Duty of an employer to modify work rules, practices and requirements to meet the needs of individuals who would otherwise be subjected to unlawful discrimination.
215
Certification
Process by which a union is recognized as a bargaining agent for a group of employees.
216
Collective bargaining
Mechanism by which parties enter a collective agreement.
217
Collective agreement
Employment agreement reached between union and employer setting out bargaining unit employees' terms of employment.
218
Just cause
Employee conduct that amounts to a fundamental breach of the employment contract.
219
Progressive discipline policy
System that follow a sequence of employee discipline from less to more severe punishment.
220
Condonation
Employer behaviour that indicates to the employee that misconduct is being overlooked.
221
Non cause/Near cause
Not just cause, in which case employer is required to give notice or pay in lieu.
222
Constructive dismissal
Unilateral employer conduct that amounts to a fundamental or substantial change to employee's contract.
223
Grievance process
Procedure for resolving disputes contained in union contracts.
224
Agency
Relationship that exists when one party represents another party in formation of legal relations
225
Agent
Person authorized to act on behalf of another
226
Principal
Person who permitted another to act on her behalf
227
Apparent authority
Power that an agent appears to have to an outsider because of conduct or statements of the principal.
228
Agency by Estoppel
Agency relationship created when the principal acts such that third parties reasonably conclude that an agency relationship exists.
229
Agency by Ratification
When one party adopts a contract entered into on his behalf by another who at that time acted without authority.
230
Fiduciary duty
Duty imposed on a person who has a special relationship of trust with another.
231
Warranty of Authority
Representation of authority by a person who purports to be an agent.
232
Undisclosed principal
Principal whose identity is unknown to a third party who has no knowledge that the agent is acting in an agency capacity.
233
What are three ways that an agency relationship can terminate?
1. Mutual agreement
2. One party gives notice to other
3. Death, dissolution, insanity, bankruptcy
234
Do partners owe each other fiduciary duties?
Yes, because they are agents of one another.
235
Limited Partnership
Liability of some partners is limited to their capital contribution.
236
Limited Liability Partnership
Partners have unlimited liability for their own malpractice but limited liability for other partners' malpractice.
237
Franchise
Agreement whereby owner of a trademark/trade name permits another to sell a product or service under that trademark.
238
Joint Venture
Grouping of 2 or more businesses to undertake a particular project.
239
Strategic Alliance
2 or more businesses agree to cooperate
240
Distributorship
Contractual relationship where one business agrees to sell another's products.
241
Sales Agency
Agreement whereby manufacturer/distributor allows another to sell products on its behalf.
242
Product Licensing
Agreement whereby the owner of trademark or other proprietary right grants to another the right to manufacture or distribute products associated with the trademark.
243
Shelf Company
Does not engage in business activity
244
Identification theory
Specifies a corporation is liable when the person committing the wrong is the corporation's directing mind.
245
Regulatory offence
Offence contrary to public interest
246
Self-dealing contract
Contract in which fiduciary has a conflict of interest.
247
Corporate opportunities
Business opportunity in which the corporation has an interest
248
Lifting the corporate veil
Determining that the corporation is not a separate legal entity from its shareholders.
249
Dissent/Appraisal Right
Shareholder remedy that gives right to shareholder who dissents from certain fundamental changes to the corporation to have their shares purchased by the corporation at a fair price.
250
Bringing a derivative action
Suit by shareholder on behalf of the corporation to enforce a corporate cause of action.
251
Oppression remedy/action
Remedy available to shareholders and other stakeholders to protect corporate interests.
252
Real Property
Land and whatever is permanently affixed to it
253
Personal Property
All property other than land and what is attached to it
254
Fee simple
Interest in real property that is closest to full ownership
255
Tenant
Someone who has any kind of right or title in the land.
256
Tenancy in common
Co-ownership whereby each owner of an undivided interest can dispose of that interest.
257
Joint Tenancy
Co-ownership whereby the survivor inherits the undivided interest of the deceased.
258
Restrictive covenant
Restriction on the use of land as specified in the title document.
259
Registry System
System of land registration whereby the records are available to be examined and evaluated by interested parties.
260
Land titles system
System of land registration whereby administrators guarantee the title to land.
261
Caveat Emptor
Buyer beware
262
Title Insurance
Covers title related issues, ie fraudulent transfers, zoning problems, registration issues
263
What are the 3 stages in a property transaction?
1. Agreement of purchase and sale
2. Investigation
3. Closing
264
Equity of Redemption
Right to regain legal title to mortgaged land upon repayment of debt
265
Which level of government regulates residential leases?
Provincial
266
If a commercial tenant abandons the premises, does the landlord have an obligation to mitigate damages?
no
267
Distress
Right of commercial landlord to seize the tenant's personal property for non-payment of rent.
268
Periodic tenancy
Lease that is automatically renewed unless one party gives proper notice to terminate.
269
Intellectual property
Results of creative processes
270
Patent
Monopoly to make, use or sell an invention.
271
What are 3 requirements for patentability?
New, useful or unobvious
272
Industrial Design
Features of shape, configuration, pattern, ornament that in a finished article appeals to and is judged solely by the eye.
273
Trade name
Name under which a sole proprietor, a partnership or corporation does business.
274
Trademark
Word, symbol, design to distinguish a person's product from others
275
Copyright
Right to prevent others from copying or modifying certain works.
276
What are 2 requirements for copyright protection?
Originality and fixation
277
Moral Rights
Author's right to have work properly attributed and not prejudicially modified or associated with products.
278
Fair Dealing
Defence to copyright infringement that permits the copying of works for particular purposes
279
Confidential Business Information
Information that provides a business advantage as a result of it being secret.
280
What is the requirement for protection of confidential business information?
Secrecy. Once the secret is revealed it can no longer be protected.
281
License
Consent given by owner of rights to someone to do something that only the owner can do.
282
Anton Pillar order
Pre-trial order allowing seizure of material, including material that infringes intellectual property rights.
283
Contract of sale
Terms of contract relating to sale, transfer of ownership of goods to buyer, terms relating to payment/delivery, remedies for contract breach.
284
Implied condition (in a sale)
If breached, buyer will be able to repudiate contract of sale, return the goods, obtain return of purchase price and can sue for damages.
285
Implied Warranty (in a sale)
If breached, innocent part cannot repudiate contract and may only sue for damages.
286
Bill of Lading
Shipping document that serves as a contract between seller and carrier.
287
Stoppage in Transit
Right of a seller to demand that goods be returned by a shipper to the seller, provided the buyer is insolvent.
288
CIF
Cost, insurance, freight - seller responsible for all of this
289
FOB
Buyer specifies type of transportation to be used, seller arranges shipping and delivers, seller usually incurs cost of delivery and buyer pays for shipping/insurance.
290
COD
Cash on delivery - purchaser obliged to pay for goods upon delivery.
291
Transfer of Title
Contract should clearly spell out at what point responsibility for goods shifts from buyer to seller.
292
Specific goods
Goods that are in existence and identifiable at the formation of contract.
293
Unascertained goods
Goods not yet set aside/identifiable as the subject matter of the contract at the time a contract of sale is formed.
294
Future goods
Goods not yet in existence at the time the contract of sale is formed.
295
For specific goods, when does the ownership get transferred?
Ownership belongs to buyer when contract is made.
296
Damages for non-acceptance
Damage to which a seller is entitled if a buyer refuses to accept goods prior to the passing of the title.
297
Action for price
Seller's claim when the buyer has breached the contract and title to the goods has passed to the buyer.
298
What 3 things happen when the contract is breached by the seller?
Innocent party can claim damages, reject the goods and treat the contract as ended.
299
Consumer Protection Law
Protects consumers in contracts for purchase of goods/services, unfair selling/marketing practices and physical harm.
300
What are some provincially regulated businesses?
Real estate, auto repair, funeral services, sale of investment products
301
Unfair practices
Illegal business practices that exploit the unequal bargaining position of consumers.
302
Letter of credit
Written promise by a buyer's bank to seller's bank to pay the seller when specified conditions are met.
303
Trade Credit
Goods bought on credit between traders. Usually a form of short-term debt.
304
Letter of Commitment
Document provided by a lender to a borrower, sets out terms of loan
305
General Security Agreement
Includes all debtor's personal property assets as collateral.
306
After-acquired property
Collateral that includes personal property acquired by the debtor during the term of the loan.
307
Security Interest
Interest in personal property that is intended to secure payment or performance of an obligation.
308
What 3 things must occur for attachment?
1. Debtor has rights in collateral
2. Secured party has provided value
3. Debtor signed a written security agreement
309
What 2 things must occur for perfection?
1. Attachment
| 2. Registration (registration of financing statement to record security interest)
310
Financing Statement
Document registered as evidence of security interest.
311
Who has priority - the first to perfect or the first to register?
The first to register
312
Purchase-money security interest
Enables debtors to acquire assets and gives secured party priority over existing perfected security interests.
313
Acceleration clause
Term of loan agreement that makes the entire loan due if one payment is missed
314
Receiver
Person appointed by secured party or court to seize and sell collateral.
315
Guarantee
Conditional promise to a creditor to pay a debt if the debtor defaults.
316
Continuing guarantee
Guarantor is liable for any past, present and future obligations of the debtor.
317
What 2 things does the guarantee agreement need to be enforceable?
1. Must be in writing
| 2. Signed by guarantor
318
Subrogation
Right of guarantor to recover from the debtor any payments made to the creditor.
319
What are 2 legislative acts in place for insolvency?
Bankruptcy/Insolvency Act and Companies' Creditors Arrangement Act
320
Trustee in Bankruptcy
Person who has legal responsibility under the BIA for administering bankruptcies and proposals.
321
What is the difference between division I and II?
Division 1 is for individuals and corporations with no limit on debt owing. If their proposal to creditors is rejected, automatic bankruptcy ensues.
Division 2 is for individuals with debt under $250k. If their proposal is rejected, they can still appeal.
322
Debtor in possession financing
Secured credit provided to companies during reorganization process with priority over existing secured creditors.
323
Which is more flexible and forgiving: The CCAA or the BIA?
The CCAA , but it's only available to huge companies.
324
Bankrupt
Legal status of a debtor who has made an assignment or against whom a bankruptcy order has been issued.
325
Assignment in bankruptcy
Debtor's voluntary assignment to trustee in bankruptcy of legal title to debtor's property for the benefit of creditors.
326
Bankruptcy order
Order of court resulting in person being declared bankrupt.
327
Inspector (of bankruptcy)
Person appointed by creditors to act on their behalf and supervise the actions of the trustee in bankruptcy.
328
Transfers at undervalue
Transfers of property and provision of services for less than fair market value.
329
Arm's length
People who are independent of each other
330
What causes a transaction to be at undervalue?
For parties at arm's length, if the transaction took place within one year prior to bankruptcy.
The debtor is insolvent.
Debtor intended to defraud, defeat or delay interests of creditor.
331
Preference
Payment that benefits one creditor over another
332
When does preference occur?
If parties at not at arm's length, preference is when a payment is made within 3 months prior to bankruptcy.
333
Bankruptcy offence
Criminal act defined by BIA in relation to bankruptcy process.
334
Proof of claim
Formal notice provided by creditor to trustee of amount owed and nature of debt
335
What are some examples of preferred creditors?
Funeral expenses, trustee fees, legal fees, arrears in wages, municipal taxes, arrears of rent.
