Final Flashcards
What is the difference between civil and criminal law? Which is harder to prove?
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.
Business Law
Set of established rules governing commercial relationships, including enforcement of rights.
Law
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.
Canada’s Personal Information Protection and Electronic Documents Act
Requires businesses to protect customers’ personal information.
Who resolves complaints to that violate the PIPEDA?
The privacy commissioner.
What are the two ways that law protects society?
- Sets rules with penalties to encourage compliance.
2. Seeks to hold those who break the law accountable for misconduct.
Contract Law
Rules that make agreements binding and facilitate planning and enforcement of expectations.
Litgation
Suing
Legal Risk Management Plan
Comprehensive action plan for dealing with legal risks involved in operating a business
Business Ethics
Moral principles that seek to determine right and wrong in the business world.
What are the three branches of government?
Legislative, executive, judicial.
What does the legislative branch do?
Create statues and regulations.
What does the executive branch of government do?
Implements government policy.
What does the judicial branch of government do?
Adjudicates disputes.
Constitutional Law
Supreme law of Canada that constrains how branches of government exercise power.
Liberalism
Political philosophy emphasizing individual freedom.
Constitutional conventions
Code of ethics governing political processes, but cannot be enforced in court.
Statute Law and examples?
Formal, written laws such as Criminal Code of Canada and Tobacco Access Act.
Parliament
Federal legislative branch comprising the House of Commons and Senate.
Laws are passed by the _____ and approved by the ______.
House of Commons, Senate
What are the legislative bodies of municipalities called?
City councils
Jurisdiction
Power that a given level of government has to enact laws.
What are some areas in which the federal government may enact laws?
Trade, currency, national defense, banking
What are some areas in which the provincial government may enact laws?
Hospitals, administration of justice, incorporation of provincial companies
What are some areas in which the municipal government may enact laws?
Zoning, subdivision, municipal taxation, licensing.
Which level of government has exclusive jurisdiction over criminal law?
Federal
What are some areas in which federal and provincial governments may have shared jurisdiction?
Environmental protection, rules for toxic substances
Paramountcy
Federal laws prevail if provincial and federal laws come into conflict.
Formal executive
Branch of government responsible for ceremonial features of government.
Who is the executive government represented by?
The Governer General
What is the role of the political executive?
Formulates and executes government policy and administers all departments of government.
What level of government do businesses lobby?
Executive
Who are chief executives?
Prime minister, premier, cabinet minister, civil servants.
Cabinet
All ministers of various government departments, as well as prime minister and premier.
Regulations
Rules created by political executive that have the force of law.
Who appoints judges?
Federal and provincial governments
Inferior Court
Judge is appointed by provincial government and usually handles smaller cases.
Superior Court
Judge is appointed by federal government and handles larger, more serious cases.
Supreme Court of Canada
Final court for appeals in Canada.
In commercial cases, which court does litigation usually end at?
Provincial (inferior) court.
Federal Court of Canada
Deals with some types of litigation involving federal government.
Canadian Charter of Rights/Freedoms
Guarantee of specific rights and freedoms in the Constitution.
Bill
Proposed legislation.
Royal Perogative
Historical rights and privileges of the Crown, right to conduct foreign affairs and declare war
Common Law
Rules formulated in judgement
Precedent
Earlier case used to resolve a current case due to its similarity
Equity
Rules focusing on what would be fair given the specific circumstances, as opposed to what the strict rules of common law might dictate.
Domestic Law vs International Law
- Internal law of a country including statute and common law
- Governs relations between states and entities with international legal status.
Substantive vs Procedural Law
- Rights, duties, liabilities
2. Governing the procedure to enforce rights, duties, liabilities
Public vs Private Law
- Relationship between persons and government (criminal, tax, constitutional)
- Dealings between persons (contract, tort, property)
Common vs Civil Law
Civil law applies in Quebec
Administrative Law
Rules created by those having governmental powers (boards, agencies, commissions, tribunals)
Alternative Dispute Resolution
Range of options for resolving disputes as an alternative to litigation.
Negotitation
Parties discuss differences and attempt to reach a mutually agreeable resolution.
Release
Written/oral statement discharging another from an existing duty
Confidentiality clause
Parties cannot reveal terms of settlement.
Mediation
Neutral person assists parties in reaching a settlement
Arbitration
Third person appointed by parties makes a decision.
Plaintiff
Party that initiates lawsuit against the other party.
Defendant
Party being sued
Limitation Period
Time period specified by legislation for commencing legal action
Class Action
Lawsuit launched by one person who represents a class of persons having similar claims again the same defendant.
What are the four stages of lawsuits?
Pleadings, discovery, trial and decision, enforcement
What happens during pleadings?
Formal documents exchanged, defendant must respond to allegations or else loses, defendant prepares defence or counterclaim.
What happens during discovery?
Disclosure of evidence to support claims, try to settle
What happens during trial and decision?
A judge decides verdict based on evidence presented. Burden of proof requires plaintiff to prove its case.
Solicitor/client costs
Loser must pay full expenses of the successful party.
What happens during enforcement?
Judgement debtor - party ordered by court to pay specified amount to winner
Tort
Any harm or injury caused by one person to another.
Intentional Tort
Harmful act done deliberately
False Imprisonment
Unlawful detention or physical restraint
Battery
Intentional infliction of harmful physical contact
What are two examples of intentional tort?
False imprisonment and battery.
Negligent Tort
Not intentional, but due to negligence.
What is the difference between criminal and tort law?
Criminal punishes the violater while tort law compensates the victim.
Primary liability
One’s own wrongdoing.
Vicarious Liability
Relationship with the person who committed the tort.
Tort-feasor
Person who commits tort.
Joint tort-feasors
Multiple people committing tort.
Contributory Negligence
Defence claiming that the plaintiff is at least partially responsible for the harm that occurred.
Worker’s compensation legislation
Provides no-fault compensation for the injured employees in lieu of their right to sue in tort.
Non-pecuniary damages
Damages awarded to compensate for pain, suffering, loss of enjoyment of life, loss of life expectancy
Pecuniary damages
Cost of future care, loss of future income, special damages
Punitive damages
Awarded to plaintiff to punish defendant for malicious, oppressive and high-handed conduct.
Aggravated damages
Compensation for intangible injury such as distress and humiliation.
Occupier
Someone who has some degree of control over land or buildings on land.
Occupier’s liability
Liability occupiers have to those entering their property.
Liability at common law
Liability determined by classifying the visitor as a contractual entrant, invitee, licensee or tresspasser
What is a contractual entrant?
Person contracted and paid to enter, ex: visitor to a museum
Invitee
Person whose presence on property benefits the occupier, ex: customers in a store
Licensee
Person permitted by occupier to enter for licensee’s benefit, ex: person taking shortcut through a building
Trespasser
Person who goes on property without invitation.
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
Trespass to land
Protects person’s possession of land from wrongful interference.
Passing off
Presenting another’s goods/services as one’s own
Interference with contractual relations
Incitement to break contractual obligations of another
Defamation
Public utterance of false statement that harms another’s reputation
Justification (as a defence)
Defence to defamation based on the defamatory statement being substantially true
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.
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
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.
Absolute privilege
Defence to defamation in relation to parliamentary or judicial proceedings.
Intrusion upon seclusion
Intentional, offensive invasion of another’s personal affairs without lawful justification.
Injurious falsehood
Liability for false statement about another’s goods/services that is harmful.
Reasonable care
Care that a reasonable person would exhibit in a similar situation
What are 4 steps to establish a negligence action?
- Does the defendant owe the plaintiff a duty of care? (reasonable forseeability, neighbour, proximity)
- Did the defendant breach the standard of care?
- Did the defendant’s careless act cause the plaintiff’s injury? (causation)
- Was the injury suffered by the plaintiff too remote?
Remoteness of damage
Absence of a sufficient close relationship between defendant’s action and plaintiff’s injury.
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.
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)
Professional liability
A professional making incorrect statements carelessly.
Product liability
relating to the design, manufacture or sale of a product.
Strict liability
Makes the defendant liable for the plaintiff’s loss even though the defendant was not negligent and exercised reasonable care
Which level of government legislates insurance regulations?
Provincial
Duty to disclose
Obligation of the insured to provide all information that relates to the risk being insured
Insurable interest
Financial stake in what is being insured.
Indemnity
Obligation on the insurer to make good the loss - the insured should come out even, not make a profit.
Subrogation
Right of the insurer to recover the amount paid on a claim from a 3rd party that cause the loss.
Salvage
Insurer’s right to the title of what remains of property after paying for a total loss.
Forfeiture rule
A criminal should not be permitted to profit from a crime
Rider
Clause altering or adding coverage in a policy.
Endorsement
Written evidence of a change to an existing insurance policy.
All-risks property insurance
Coverage that protects against all types of physical loss or injury arising from an external cause unless specifically excluded.
Which type of auto insurances are mandatory and optional?
3rd party liability is mandatory, collision is optional
3rd party liability insurance
Auto insurance covering the death/injury of others
Collision insurance
Auto insurance covering damage to the vehicle.
No-fault system
A tort-feasor cannot be sued for injury or death.
Occupier’s liability insurance
Covers injuries suffered on the occupier’s property.
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
Errors and Omissions insurnace
Covers damage resulting from performance of professional services.
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.
Property Insurance
Can either insure for replacement value or property’s cash value
Business Interruptions Loss Insurance
Covers losses resulting from a need to shut down
Environmental Impairment Insurance
Covers costs associated with a spill or pollution.
Key-Person Life Insurance
Covers costs to buy the share of a business owner if he/she dies.
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.
Most rules governing contracts are based on ______ law
Common
Objective standard test
How would a reasonable person view the matter?
Equal bargaining power
Legal assumption that parties to a contract are able to look out for their own interests.
Economic Breach
When one party breaches the contract because it is more financially rewarding than to keep it.
Agreement
When parties reach a consensus about rights and obligations
Offer
Promise to perform specified acts on certain terms.
Invitation to treat
Expression of willingness to do business. No legal relevance, ex: vague comments
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)
Revocation
Withdrawal of offer (can revoke if other party did not pay yet)
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.
Tendering process
When owner wants bids for a large project, contractors submit tenders (offers) that set out prices
Lapse
Expiration of offer after specified over reasonable period
Rejection
Refusal of offer
Counteroffer
Rejection of offer and proposal of a new one
Acceptance
Unqualified willingness to enter into a contract on the terms in the offer
Postbox rule
Acceptance is effective at the time of mailing the acceptance.
Formalization
Even though offer and acceptance occurred, signing a formal contract may be needed.
Gratuitous Promise
Promise unsupported by consideration - cannot sue if breached
Pre-existing legal duty
A legal obligation that a person already owes
Promise under seal
Seal placed beside promise
Promissory Estoppel
Doctrine whereby someone who relies on a gratuitous promise may be able to enforce it
Partial payment of debt
When customer cannot pay its account but offers a smaller amount to settle the debt in full.
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.
Express terms
Provision of a contract that states a promise explicitly.
Implied terms
Provision not expressly included in contract but necessary to give effect to the parties’ intention.
Entire contract clause
Term in a contract in which parties agree that their contract is complete as written.
Contractual quantum meruit
Awarding one party a reasonable sum for goods/services provided under a contract.
Parol Evidence Rule
Rule that limits the evidence a party can introduce concerning the contents of the contract.
Condition subsequent
Event or circumstance that, when it occurs, beings existing contract to an end.
Condition precedent
Event or circumstance that, until it occurs, suspends the parties’ obligations to perform contractual obligations
Limitation of liability clause
Term of contract that limits liability for breach to something less than would otherwise be recoverable.
Exemption clause
Term of contract that identifies events causing loss for which there is no liability.
Liquidated damages clause
Temr of contract specifying how much one party must pay the other in the event of a breach
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.
Voidable contract
A contract that, in certain circumstances, an aggrieved party can choose to keep in force or bring to an end.
Void Contract
A contract involving a defect so substantial that it is of no force or effect
Legal capacity
Ability to make binding contracts ( age of majority, mental capacity)
Duress
One party is threatened to enter the contract
Economic duress
threat of economic harm that coerces the will of other party and results in a contract (voidable)
Undue Influence
Unfair manipulation that compromises someone’s free will or choice
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)
Misrepresentation
False statement of fact that causes someone to enter a contract.
Rescission
Remedy that results in the parties being returned to their pre-contractual positions.
Misrepresentations must be… (5 things)
- False
- Clear
- Material to the contract
- One that induces the aggrieved party to enter the contract
- Fact and not opinion
Fraudulent misrepresentation
Speaker has the deliberate intent to mislead or makes a reckless statement that is not necessarily true.
Negligent misrepresentation
Statement made carelessly
Innocent misrepresentation
Not fraudulent or negligent
Mistake
Error made by one or both parties that seriously undermines the contract
Common mistake
Both parties to the agreement share the same fundamental mistake.
Illegal contract
Cannot be enforced because it is contract to legislation or public policy
Public policy
Community’s common sense and conscience
Non-solicitation clause
Forbids contact with business’ customers
Non-competition clause
Forbids competition for a certain period
Guarantee
Conditional promise to a creditor to pay a debt if the debtor defaults
Vicarious performance
Performance of contractual obligations through others
Novation
Substitution of parties in a contract or replacement of one contract with another.
Assignment
Transfer of a right by an assignor to an assignee - assignee can now collect the assignor’s debts
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
Force majeure clause
Allows party to delay or terminate contract in even of natural disaster, military action, strikes, monetary changes, governmental action
Balance of probabilities
Proof that there is a better than 50% chance that the circumstances of the contract are as the plaintiff contends.
Condition
Term that, if breached, gives the innocent party the right to terminate the contract and claim damages.
Warranty
Minor term of contract that if breached, gives the innocent party the right to claim damages only.
Innominate term
Term that cannot easily be classified as either a condition or a warranty.
Anticipatory Breach
Breach that occurs before the date for performance
Expectation damages
Provide the plaintiff with monetary equivalent of contractual performance
Duty to mitigate
Obligation to take reasonable steps to minimize the losses resulting from a breach of contract
Equitable Remedies
Remedies for rare situations where damages would be an inadequate remedy for breach of contract.
Specific Performance
Instead of ordering compensation, the court orders the breaching party to do what the contract obliged them to do.
Injunction
Order to restrain party from beaching a promise not to do something.
Interlocutory Injuction
Order to refrain from doing something for a limited period of time.
Restitutionary Remedies
Calculated based on the defendant’s gain rather than the plaintiff’s losses.
Unjust enrichment
When one party has undeservedly secured a benefit at the other party’s expense.
Independent contractor
Person in a working relationship who does not meet criteria of employment.
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.
What are 3 things that distinguish a contractor from an employee?
- Degree of control exercised over individual by contractor
- Ownership of tools, chance of profit, risk of loss from performance
- Degree of integration
Adverse effects discrimination
Discrimination that occurs as a result of a rule that appears neutral but in its effects if discriminatory.
Systemic discrimination
Discrimination that results from the combined effect of many rules, practices and policies.
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.
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.
Certification
Process by which a union is recognized as a bargaining agent for a group of employees.
Collective bargaining
Mechanism by which parties enter a collective agreement.
Collective agreement
Employment agreement reached between union and employer setting out bargaining unit employees’ terms of employment.
Just cause
Employee conduct that amounts to a fundamental breach of the employment contract.
Progressive discipline policy
System that follow a sequence of employee discipline from less to more severe punishment.
Condonation
Employer behaviour that indicates to the employee that misconduct is being overlooked.
Non cause/Near cause
Not just cause, in which case employer is required to give notice or pay in lieu.
Constructive dismissal
Unilateral employer conduct that amounts to a fundamental or substantial change to employee’s contract.
Grievance process
Procedure for resolving disputes contained in union contracts.
Agency
Relationship that exists when one party represents another party in formation of legal relations
Agent
Person authorized to act on behalf of another
Principal
Person who permitted another to act on her behalf
Apparent authority
Power that an agent appears to have to an outsider because of conduct or statements of the principal.
Agency by Estoppel
Agency relationship created when the principal acts such that third parties reasonably conclude that an agency relationship exists.
Agency by Ratification
When one party adopts a contract entered into on his behalf by another who at that time acted without authority.
Fiduciary duty
Duty imposed on a person who has a special relationship of trust with another.
Warranty of Authority
Representation of authority by a person who purports to be an agent.
Undisclosed principal
Principal whose identity is unknown to a third party who has no knowledge that the agent is acting in an agency capacity.
What are three ways that an agency relationship can terminate?
- Mutual agreement
- One party gives notice to other
- Death, dissolution, insanity, bankruptcy
Do partners owe each other fiduciary duties?
Yes, because they are agents of one another.
Limited Partnership
Liability of some partners is limited to their capital contribution.
Limited Liability Partnership
Partners have unlimited liability for their own malpractice but limited liability for other partners’ malpractice.
Franchise
Agreement whereby owner of a trademark/trade name permits another to sell a product or service under that trademark.
Joint Venture
Grouping of 2 or more businesses to undertake a particular project.
Strategic Alliance
2 or more businesses agree to cooperate
Distributorship
Contractual relationship where one business agrees to sell another’s products.
Sales Agency
Agreement whereby manufacturer/distributor allows another to sell products on its behalf.
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.
Shelf Company
Does not engage in business activity
Identification theory
Specifies a corporation is liable when the person committing the wrong is the corporation’s directing mind.
Regulatory offence
Offence contrary to public interest
Self-dealing contract
Contract in which fiduciary has a conflict of interest.
Corporate opportunities
Business opportunity in which the corporation has an interest
Lifting the corporate veil
Determining that the corporation is not a separate legal entity from its shareholders.
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.
Bringing a derivative action
Suit by shareholder on behalf of the corporation to enforce a corporate cause of action.
Oppression remedy/action
Remedy available to shareholders and other stakeholders to protect corporate interests.
Real Property
Land and whatever is permanently affixed to it
Personal Property
All property other than land and what is attached to it
Fee simple
Interest in real property that is closest to full ownership
Tenant
Someone who has any kind of right or title in the land.
Tenancy in common
Co-ownership whereby each owner of an undivided interest can dispose of that interest.
Joint Tenancy
Co-ownership whereby the survivor inherits the undivided interest of the deceased.
Restrictive covenant
Restriction on the use of land as specified in the title document.
Registry System
System of land registration whereby the records are available to be examined and evaluated by interested parties.
Land titles system
System of land registration whereby administrators guarantee the title to land.
Caveat Emptor
Buyer beware
Title Insurance
Covers title related issues, ie fraudulent transfers, zoning problems, registration issues
What are the 3 stages in a property transaction?
- Agreement of purchase and sale
- Investigation
- Closing
Equity of Redemption
Right to regain legal title to mortgaged land upon repayment of debt
Which level of government regulates residential leases?
Provincial
If a commercial tenant abandons the premises, does the landlord have an obligation to mitigate damages?
no
Distress
Right of commercial landlord to seize the tenant’s personal property for non-payment of rent.
Periodic tenancy
Lease that is automatically renewed unless one party gives proper notice to terminate.
Intellectual property
Results of creative processes
Patent
Monopoly to make, use or sell an invention.
What are 3 requirements for patentability?
New, useful or unobvious
Industrial Design
Features of shape, configuration, pattern, ornament that in a finished article appeals to and is judged solely by the eye.
Trade name
Name under which a sole proprietor, a partnership or corporation does business.
Trademark
Word, symbol, design to distinguish a person’s product from others
Copyright
Right to prevent others from copying or modifying certain works.
What are 2 requirements for copyright protection?
Originality and fixation
Moral Rights
Author’s right to have work properly attributed and not prejudicially modified or associated with products.
Fair Dealing
Defence to copyright infringement that permits the copying of works for particular purposes
Confidential Business Information
Information that provides a business advantage as a result of it being secret.
What is the requirement for protection of confidential business information?
Secrecy. Once the secret is revealed it can no longer be protected.
License
Consent given by owner of rights to someone to do something that only the owner can do.
Anton Pillar order
Pre-trial order allowing seizure of material, including material that infringes intellectual property rights.
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.
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.
Implied Warranty (in a sale)
If breached, innocent part cannot repudiate contract and may only sue for damages.
Bill of Lading
Shipping document that serves as a contract between seller and carrier.
Stoppage in Transit
Right of a seller to demand that goods be returned by a shipper to the seller, provided the buyer is insolvent.
CIF
Cost, insurance, freight - seller responsible for all of this
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.
COD
Cash on delivery - purchaser obliged to pay for goods upon delivery.
Transfer of Title
Contract should clearly spell out at what point responsibility for goods shifts from buyer to seller.
Specific goods
Goods that are in existence and identifiable at the formation of contract.
Unascertained goods
Goods not yet set aside/identifiable as the subject matter of the contract at the time a contract of sale is formed.
Future goods
Goods not yet in existence at the time the contract of sale is formed.
For specific goods, when does the ownership get transferred?
Ownership belongs to buyer when contract is made.
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.
Action for price
Seller’s claim when the buyer has breached the contract and title to the goods has passed to the buyer.
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.
Consumer Protection Law
Protects consumers in contracts for purchase of goods/services, unfair selling/marketing practices and physical harm.
What are some provincially regulated businesses?
Real estate, auto repair, funeral services, sale of investment products
Unfair practices
Illegal business practices that exploit the unequal bargaining position of consumers.
Letter of credit
Written promise by a buyer’s bank to seller’s bank to pay the seller when specified conditions are met.
Trade Credit
Goods bought on credit between traders. Usually a form of short-term debt.
Letter of Commitment
Document provided by a lender to a borrower, sets out terms of loan
General Security Agreement
Includes all debtor’s personal property assets as collateral.
After-acquired property
Collateral that includes personal property acquired by the debtor during the term of the loan.
Security Interest
Interest in personal property that is intended to secure payment or performance of an obligation.
What 3 things must occur for attachment?
- Debtor has rights in collateral
- Secured party has provided value
- Debtor signed a written security agreement
What 2 things must occur for perfection?
- Attachment
2. Registration (registration of financing statement to record security interest)
Financing Statement
Document registered as evidence of security interest.
Who has priority - the first to perfect or the first to register?
The first to register
Purchase-money security interest
Enables debtors to acquire assets and gives secured party priority over existing perfected security interests.
Acceleration clause
Term of loan agreement that makes the entire loan due if one payment is missed
Receiver
Person appointed by secured party or court to seize and sell collateral.
Guarantee
Conditional promise to a creditor to pay a debt if the debtor defaults.
Continuing guarantee
Guarantor is liable for any past, present and future obligations of the debtor.
What 2 things does the guarantee agreement need to be enforceable?
- Must be in writing
2. Signed by guarantor
Subrogation
Right of guarantor to recover from the debtor any payments made to the creditor.
What are 2 legislative acts in place for insolvency?
Bankruptcy/Insolvency Act and Companies’ Creditors Arrangement Act
Trustee in Bankruptcy
Person who has legal responsibility under the BIA for administering bankruptcies and proposals.
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.
Debtor in possession financing
Secured credit provided to companies during reorganization process with priority over existing secured creditors.
Which is more flexible and forgiving: The CCAA or the BIA?
The CCAA , but it’s only available to huge companies.
Bankrupt
Legal status of a debtor who has made an assignment or against whom a bankruptcy order has been issued.
Assignment in bankruptcy
Debtor’s voluntary assignment to trustee in bankruptcy of legal title to debtor’s property for the benefit of creditors.
Bankruptcy order
Order of court resulting in person being declared bankrupt.
Inspector (of bankruptcy)
Person appointed by creditors to act on their behalf and supervise the actions of the trustee in bankruptcy.
Transfers at undervalue
Transfers of property and provision of services for less than fair market value.
Arm’s length
People who are independent of each other
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.
Preference
Payment that benefits one creditor over another
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.
Bankruptcy offence
Criminal act defined by BIA in relation to bankruptcy process.
Proof of claim
Formal notice provided by creditor to trustee of amount owed and nature of debt
What are some examples of preferred creditors?
Funeral expenses, trustee fees, legal fees, arrears in wages, municipal taxes, arrears of rent.
