Finals Flashcards

1
Q

privity of a contract

A

the relationship that exists between parties to a contract

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2
Q

vicarious performance

A

a third party performs contractual obligations on behalf of the promisor who remains responsible for proper performance (subcontractor)

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3
Q

exception clause

A

a clause in a contract that exempts or limits the liability of a party

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4
Q

trustee

A

a person who is trusted

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5
Q

beneficial owner

A

a person who, although not the legal owner, may compel the trustee to provide benefits to him

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6
Q

trust agreement

A

the document that conveys property to a trustee to be used for the benefit of a third party beneficiary

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7
Q

resulting trust

A

a trust relationship recognized when the conduct of the parties demonstrates the intention to hold property for the benefit of the other

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8
Q

constructive trust

A

a trust relationship imposed by the court to prevent a party from being unjustly enriched by keeping property that should benefit another

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9
Q

undisclosed principal

A

a contracting party who, unknown to the other party, is represented by an agent

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10
Q

enurement clause

A

extends the rights and benefits to those inheriting from a party, succeeding the party, or taking an assignment from a party

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11
Q

4 exceptions to the privity of contract rules

A
  1. trusts
  2. insurance
  3. undisclosed principal
  4. contracts concerning land
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12
Q

principled exception

A

allows third parties to rely upon a contractual exemption clause when the parties to the contract intended to include them, and their activities come within the scope of the contract and the exemption clause

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13
Q

2 assignment contracts

A

first, create unperformed right, subsequently assigned to third party in second contract

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14
Q

assignment

A

the transfer by a party of its unperformed rights under a contract to a third party

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15
Q

choses in action

A

rights to intangible property such as patents, stocks, contracts that may be enforced in the courts

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16
Q

choses in possession

A

rights to tangible property that may be possessed physically

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17
Q

statutory assignment

A

an assignment that complies with statutory provisions enabling the assignee to sue the other party without joining the assignor to the action

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18
Q

equitable assignment

A

an assignment other than a statutory assignment

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19
Q

3 requirements for assignee to sue promisor without joining the assignor in the lawsuit (statutory assignment)

A
  1. assignment was absolute (unconditional and complete)
  2. it was in writing
  3. promisor received notice of it in writing
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20
Q

set off

A

the right of a promisor to deduct an existing debt owed to him by the promisee

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21
Q

executor

A

the personal representative of a deceased person named in his or her will

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22
Q

intestate

A

when a person dies without leaving a will

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23
Q

administrator

A

the personal representative of a person who dies intestate

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24
Q

negotiable instruments

A

a written contract containing a promise, express or implied, to pay a specific sum of money to a designated person or to “bearer”

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25
Q

minor breach

A

a breach of a non-essential term of a contract or of an essential term in a minor respect

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26
Q

major breach

A

a breach of the whole contract or of an essential term so that the purpose of the contract is defeated

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27
Q

3 ways a breach may occur

A
  1. express repudiation
  2. acting in a way that makes it impossible to perform promises
  3. failing to perform or poor performance
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28
Q

express repudiation

A

one of the contracting parties advises the other that it does not intend to perform as promised

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29
Q

anticipatory breach

A

an express repudiation that occurs before the time agreed for performance

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30
Q

substantial performance

A

performance that does not comply in some minor way with the requirements of the contract

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31
Q

quasi-contract

A

an obligation that may arise because one party has received an unfair benefit at the expense of the other

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32
Q

unjust enrichment

A

unfair benefit

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33
Q

drawing party

A

the contracting party that prepared the agreement

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34
Q

unconscionable terms

A

terms agreed to by parties of unequal bargaining power that give an unfair advantage to the powerful party over the weaker party

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35
Q

3 types af remedies

A
  1. damages
  2. equitable remedies
  3. quantum meruit
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36
Q

2 prereqs. for award of damages

A
  1. loss must flow from breach

2. damages must be mitigated

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37
Q

liquidated damages

A

an amount agreed on to be paid in damages by a party to a contract if it should commit a breach

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38
Q

penalty clause

A

a term specifying an exorbitant amount for breach of contract, intended to frighten a party into performance

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39
Q

expectation damages

A

an amount awarded for breach of contract, based on expected benefits or profits

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40
Q

consequential damages

A

secondary losses incurred by the non-breaching party that were foreseeable at the time of contracting

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41
Q

general damages

A

an estimated amount for intangible injury that a court may award

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42
Q

nominal damages

A

acknowledge a breach of contract where there is no real loss suffered

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43
Q

reliance damages

A

costs of expenditures and wasted effort reasonably made in preparation for performance

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44
Q

punitive damages

A

used in extreme conditions, used to punish the wrongdoer

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45
Q

5 prerequisites for equitable remedy - need all 5

A
  1. damages are inadequate
  2. claimant has clean hands
  3. no delay in seeking relief
  4. cannot negatively affect innocent third party
  5. sufficient consideration
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46
Q

specific performance

A

an order requiring a defendant to do a contracted-for act, usually to complete a transaction

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47
Q

injunction - negative convenant

A

court order restraining a party from acting in a particular manner; prohibits party from committing a breach

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48
Q

interlocutory injunction

A

temporary injunction preventing immediate harm from being done before full trial of the matter

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49
Q

rescission

A

restore parties to pre-contract positions

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50
Q

quantum meruit

A

the fair amount a person deserves to be paid for benefit conferred

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51
Q

5 common law damage remedies

A
  1. expectation damages
  2. consequential damages
  3. general damages
  4. reliance damages
  5. punitive damages
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52
Q

4 equitable remedies

A
  1. specific performance
  2. injunction
  3. rescission
  4. quantum meruit
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53
Q

execution

A

seize and sell a debtor’s chattel’s or arrange for a sale of his lands

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54
Q

garnishment

A

order requiring the debtor’s employer to retain a portion of their wages each payday to surrender to creditor

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55
Q

contempt of court

A

a finding by a court that a person has willfully refused to obey a court order and therefore be punished

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56
Q

bailor

A

owner of goods

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57
Q

bailee

A

party accepting possession of goods

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58
Q

gratuitous bailment

A

bailment where one party provides no consideration, no intention to create contractual relationship

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59
Q

bailment for value

A

contractual bailment, payed

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60
Q

lien

A

gives bailee right to keep possession of good until bailor pays

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61
Q

the right of sale

A

give bailee who has lien upon goods stored an additional right to sell the goods - publicly, reasonable amount of time, reasonable price - if the bailor does not end up paying

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62
Q

3 types of transporters (bailment)

A
  1. gratuitous carrier
  2. private carrier - specific goods, contractual
  3. common carrier - almost strict liability
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63
Q

3 defences of transporters (bailment)

A
  1. act of god
  2. inherent defect in goods - defect when carrier received it
  3. default by shipper -> bad packing done by shipper
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64
Q

dependent agent

A

an agent who acts exclusively, or mostly, for a single principal i.e. insurance agent

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65
Q

independent agent

A

an agent who carries on an independent business and acts for a number of principals i.e. lawyers

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66
Q

agency agreement

A

agreement between principal and agent whereby the agent undertakes to act on behalf of the principal

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67
Q

power of attorney

A

type of agency agreement authorizing the agent to sign documents on behalf of the principal

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68
Q

4 duties owed by agent to principal

A
  1. duty to comply with agency agreement
  2. duty of care
  3. personal performance
  4. good faith
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69
Q

2 duties owed by principal to agent

A
  1. compensate agent for effort

2. pay for agent’s expenses and losses

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70
Q

actual authority

A

the authority given expressly or implied to the agent by the principal

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71
Q

apparent authority

A

authority that a third party is entitled to assume that the agent possesses

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72
Q

holding out

A

representing by words or conduct that a person is one’s agent or has a particular authority

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73
Q

ratification of an agency contract

A

subsequent adoption by the principal of a contract made by an agent without authority

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74
Q

warranty of authority

A

a person who purports to act as agent represents that she has authority to contract on behalf of the principal

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75
Q

5 ways of terminating an agency relationship

A
  1. Performance
  2. Frustration
  3. Death
  4. Bankruptcy
  5. Loss of Capacity
76
Q

indefinite hiring

A

a contract of employment for an undetermined length of time, with no expectation of termination ro described end date

77
Q

payment in lieu of notice

A

payment of the amount of compensation the employee would have earned during the reasonable notice period

78
Q

constructive dismissal

A

substantial change to an employee’s job that amounts to termination of the existing employment

79
Q

dismissal for cause

A

dismissal without notice or further obligation by the employer when the employee’s conduct amounts to breach of contract

80
Q

4 reasons for dismissal without notice

A
  1. misconduct
  2. disobedience
  3. incompetence
  4. illness
81
Q

progressive employee discipline

A

imposing increasingly serious consequences for each event of improper employee behaviour

82
Q

2 remedies available for wrongful dismissal

A
  1. damages

2. reinstatement

83
Q

employment standards act

A

imposes minimum contractual obligations on employers

84
Q

worker’s safety and insurance act

A

governs workplace injury remuneration -> no fault compensation sceme

85
Q

occupational health and safety act

A

governs workplace safety prosecutions -> preventative

86
Q

human rights code

A

provides protection from discrimination - accommodate disabilities with limited hardship

87
Q

pay equity

A

raise women wages to match those equivalent of men, not applicable v.v.

88
Q

ontario labour relations act

A

create unionized environment

89
Q

PIPEDA

A

workplace privacy, duties owed to keep employee info safe

90
Q

partnership agreement

A

agreement between persons to create a partnership and to set out the terms of the relationship

91
Q

joint liability

A

situation where each of a number of persons is personally liable for the full amount of debt

92
Q

4 steps that should be taken on retirement from a partnership

A
  1. notify existing clients
  2. place notice in official gazette of province
  3. remove name from register
  4. letterheads altered to remove name
93
Q

limited partnership

A

partnership in which some of the partners limit their liability to the amount of their capital contributions

94
Q

general partner

A

a partner in a limited partnership whose liability is unlimited

95
Q

limited partner

A

a partner in a limited partnership whose liability is limited to the amount of his or her capital contribution

96
Q

llp

A

partnership in which non-negligent partners are not personally liable for losses caused by the negligence of a partner

97
Q

contractual joint venture

A

joint venture effected by agreement without the creation of any separate legal entity

98
Q

equity joint venture

A

corporation formed and jointly owned by the parties to a joint venture for the purpose of carrying on the venture

99
Q

associated corporations

A

one corporation controls the other, or both corporations are controlled by the same person/group

100
Q

3 conditions to lift corporate veil and find individual within corporation liable

A
  1. individual must control corporation
  2. control must have been exercised to commit fraud, or breach of fiduciary duty
  3. misconduct was the cause of plaintiff’s injury
101
Q

letters patent

A

a document incorporating a corporation, issued by the appropriate authority, and constituting the “charter” of the corporation

102
Q

articles of incorporation

A

founding corporate document (charter or constitution of the corporation)

103
Q

bylaws

A

internal working rules of corporation

104
Q

professional corporation

A

business corporation that may be formed by members of a profession

105
Q

issued capital

A

the shares that have been issued by a corporation

106
Q

paid-up capital

A

shares that have been issued and fully paid for

107
Q

par value

A

nominal value attached to a share at time of issue

108
Q

pre-emptive right

A

the right of a holder of shares to protect his percentage ownership in the company by buying the same percentage in any new issue of shares

109
Q

cumulative right

A

the right of the holder of a preferred share to be paid arrears from previous years before any dividend is paid on the common shares

110
Q

corporate governance

A

rules governing the organization and management of the business and affairs of a corporation in order to meet its internal objectives and external responsibilities

111
Q

board of directors

A

governing body of a corporation, responsible for the management of its business and affairs

112
Q

officers

A

high ranking members of a corporations management team as defined in the bylaws or appointed by the directors

113
Q

audit committee

A

a group of directors responsible for overseeing the corporate audit and preparation of financial statements

114
Q

compensation committee

A

committee responsible for setting director and officer pay

115
Q

nominating committee

A

committee responsible for proposing and recruiting new directors

116
Q

5 jobs of directors

A
  1. issue shares
  2. declare dividends
  3. adopt bylaws
  4. call meetings of shareholders
  5. delegate responsibilities/appoint officers
117
Q

cumulative voting

A

a method of electing directors by a form of proportional representation

118
Q

S.122a of CBCA

A

requires directors/officers act honestly and in good faith with a view to the best interests of the corporation, NOT shareholders
-> fiduciary duty, avoid conflict of interest

119
Q

S.122b of CBCA

A

requires directors/officers to exercise the care, diligence, and skill that responsible person would act in comparable circumstances, duty to shareholders
->negligence , comparable to average director

120
Q

due diligence defence

A

defence to breach of fiduciary duty; an acceptable standard of care and skill was exercised by a director/officer

121
Q

good faith reliance

A

defence to breach of fiduciary duty; reliance on audited financial statements or export reports

122
Q

corporate indemnity

A

defence to breach of fiduciary duty; agreement with corporation to reimburse a director for any costs associated with liability for breach of duty

123
Q

director’s and officer’s liability insurance

A

defence to breach of fiduciary duty; corporation may purchase liability insurance on behalf of its board

124
Q

business judgement rule

A

courts focus on process to arriving at decision; as long as directors exercise prudence and diligence while making a decision, duty of skill and care has been met

125
Q

strict liability of directors

A

unpaid wages, taxes, ei

126
Q

4 specific conducts involving conflict of interest

A
  1. disclosure of contracts with corporation
  2. interception of corporate opportunity
  3. personal use of corporate information
  4. competing with corporation
127
Q

insider trading

A

the use of confidential information relating to a corporation in dealing in its securities in order to make a profit/avoid a loss
-> pivotal info that isn’t public yet

128
Q

3 rights of shareholders

A
  1. vote at any meeting of shareholders
  2. receive any dividend declared
  3. receive remaining property of corporation on dissolution
129
Q

ordinary resolution

A

resolution adopted by the general meeting and passed by a simple majority

130
Q

special resolution

A

resolution of the general meeting required to be passed by a special (2/3) majority

131
Q

class rights

A

special rights attached to a particular class of shares

132
Q

proxy

A

a person appointed to attend a general meeting of shareholders and to cast the votes of the shareholder appointing him/her

133
Q

proxy form

A

a form required to be circulated to shareholders before a general meeting, inviting them to appoint a proxy if they wish

134
Q

pre-emptive right

A

right to purchase additional stocks before the general public

135
Q

documents of record

A

documents that a corporation is required to keep and make available to shareholders
-> minutes of meetings, charter, bylaws, register of directors

136
Q

inspector

A

person appointed by the court to investigate the affairs of a corporation

137
Q

appraisal remedy

A

the right to have one’s shares bought by the corporation at a fair price

138
Q

derivative action

A

proceedings brought by one or more shareholders in the name of the corporation in respect of a wrong done to the corporation
-> right of minority shareholder to start action against director for wrongdoing

139
Q

3 requirements for minority shareholder to bring action in the name on behalf of corporation

A
  1. directors refuse to bring up action themselves
  2. applicant acting in good faith
  3. be in best interests of the company
140
Q

winding up

A

the dissolution of a corporation -> typically used for small/family businesses

141
Q

oppression remedy

A

a statutory procedure allowing individual shareholders to seek a personal remedy if they have been unfairly treated -> broadest, most flexible remedy

142
Q

shareholder agreement

A

an agreement between two or more shareholders that is distinct from the corporation’s charter and bylaws

143
Q

unanimous shareholder agreement

A

a shareholder agreement to which all shareholders are parties

144
Q

2 rights that may be in a shareholder agreement

A
  1. right to participate in management - shareholders promise to elect each other at meetings
  2. right to fair price for a share interest - agree to a regular method of valuation of their shares
145
Q

regulatory offences

A

less serious offences created by government regulation through specialized legislation, agencies, and tribunals

146
Q

mens rea offences

A

offences where the prosecution must establish a “guilty mind” on the part of the defendant

147
Q

offences of strict liability

A

offences where there is a presumption of guilt unless the defendant can show that they took reasonable care

148
Q

offences of absolute liability

A

offences where simply doing the act makes one guilty of the offence

149
Q

3 categories of offences

A
  1. mens rea offences
  2. offences of strict liability
  3. offences of absolute liability
150
Q

the solvency test

A

in order to protect creditors, test the company of their ability to pay off their debts with their current assets

151
Q

securities commission

A

the statutory authority appointed to supervise the issue of securities to the general public, the operation of securities industry, and the stock exchange

152
Q

prospectus

A

the document that a corporation is required to publish when inviting the public to subscribe for its securities

153
Q

indoor management rule

A

a person dealing with a corporation is entitled to assume that its internal procedural rules have been complied with unless it is apparent that such is not the case
-> contractual liability of corporations

154
Q

e-retailing

A

the supply of tangible or electronic goods/services over the internet

155
Q

web wrap agreement

A

the acceptance of contractual terms, indicated by clicking on the appropriate icon

156
Q

click-wrap agreement

A

requires customer to open terms page before clicking acceptance of them

157
Q

E-commerce act

A

rules of contract formation that applies to all internet contracts

158
Q

Consumer Protection Act

A

protection available to consumers when they contract with a business online

159
Q

main tort issue relating to e commerce

A

defamation - anyone can post anything; is hyperlinking an act of defamation?

160
Q

infringement

A

violation of the rights of the owner of the intellectual property

161
Q

trademark

A

an identifiable feature that is used by a person for the purpose of distinguishing his goods or services from those of others
- may not always be registered (initial 15y + 5 years renew)

162
Q

passing off

A

tort involving misrepresentation of goods to deceive public

163
Q

cybersquatting

A

the registration of a domain name containing the trademark of another person, with the intention of selling the domain name to the owner of the mark

164
Q

alternative dispute resolution

A

the use of private procedures such as mediation and arbitration to resolve problems - trademark infringement of generic names

165
Q

copyright

A

gives the creator of the work exclusive right to copy, produce, distribute that work - life of author + 50 years

166
Q

royalty

A

fee paid to the copyright owner for permission to copy the work

167
Q

moral rights

A

rights to always be attributed as the creator of work

168
Q

copyright infringement remedy

A

damages/infringement

169
Q

fair dealing

A

exception to copyright infringement - the use of copyrighted material for fair use (research, education, private study, parody, review, news reporting)
- muse be a fair amount (20%)

170
Q

digital rights management system (DRM)

A

a system collecting data about the licensing, payment for, and authenticity of a work

171
Q

technical protection measures (TPMs)

A

use of locks for electronic material to block unauthorized use of their copyrighted material

172
Q

patent

A

20 year monopoly of new idea/process

173
Q

proper law of the contract

A

the law that the parties intended to govern their relationship - parties to name it in their contract

174
Q

GATT

A

principle document that formulates the rules for international trade - includes trade-related investment measures - nondiscrimination - all countries to receive most favoured nation treatment

175
Q

trade-related investment measures

A

national measures regulating investment that have an impact upon international trade

176
Q

most favoured nation treatment

A

the principle that goods imported from one country should not be treated less favourably than those imported from any other country

177
Q

national treatment

A

the principle that goods from another country should not be treated less favourably than domestic goods

178
Q

free trade areas

A

groups of countries within which customs duties are eliminated

179
Q

NAFTA

A

regional trade agreement - exception to GATT

180
Q

main concern of foreign investment

A

protect canadian culture - often conflicts with trade agreements

181
Q

2 steps of managing foreign investment

A
  1. investment canada receives notice of foreign investment

2. must get approval of large acquisitions to protect culture

182
Q

forum non conveniens

A

refusing to hear a proceeding because another jurisdiction is more appropriate

183
Q

security for costs

A

money deposited into the court in case an unsuccessful foreign plaintiff is ordered to pay the legal costs of the successful defendant

184
Q

party autonomy

A

the parties’ freedom to determine how their dispute will be resolved

185
Q

arbitration clause

A

a term in a commercial contract designating arbitration as the process for resolution of any disputes arising between the parties

186
Q

commercial arbitration

A

the use of arbitration methods to solve any disputes arising in commercial environments