Law for Professional Practice Flashcards
This is made up of various portions of the British and Canadian Parliaments
Canadian Constitution
The Canadian Constitution includes 3 main features:
- Power division
- Courts creation
- The Charter of Rights and Freedoms (individual’s rights)
There are 2 types of laws in Canada:
- Statute Laws (Federal & Provincial Governments enacts Legislation)
- Common Laws (Judge made law)
Define: Theory of Precedent
Common laws are termed “judge made” laws since the courts apply legal principles established in previous court decisions that involved similar or analogous fact situations.
Define: Plaintiff
the party making the claim or the crown
Define: Defendant
the party defending against the claim or the accused
Courts from top to bottom (provincial)
Supreme court of Canada Provincial Courts of Appeal Provincial/Territorial Superior Courts Provincial Courts Provincial Administrative Tribunals
Courts from top to bottom (federal)
Supreme Court of Canada
Federal Court of Appeal
Federal Court
Federal Administrative Tribunals
Contracts can be oral, written or any combination thereof. The 5 elements of a Contract (aka Agreement) are:
- Offer made and accepted
- Mutual Intent (to enter the contract)
- Consideration (promise of value exchanged)
- Capacity (no drunks, no lunatics, must be legal age)
- Lawful Purpose (no drugs)
These elements must be present for the contract to be enforceable in the legal system.
A contract is not enforceable for one party contracting with another that does not have capacity. However, for the party without capacity, the contract may still be enforceable if:
- There was awareness of the incapacity
* The incapacitated party (repudiates) argues in a reasonable time.
Why are NDA’s rarely enforced for non-compete employment contracts for engineers?
An engineer or geoscientist is often asked to sign a noncompete agreement in which they will not compete with the former employer for a period of time. It is unlawful to restrict a person’s ability to earn a living and these contracts are rarely enforced unless very reasonable.
This is a common agreement that does not contain all the elements of a contract and is therefore not enforceable.
Letter of Intent.
However, is does help communicate the seriousness of each party simply by participating in the agreement and it also often helps map the terms for negotiation.
The courts void contracts only in rare cases such as:
- Mistake (must be: mutual, non-trivial, prior to agreement)
- Misrepresentation (false statement or assertion of fact)
- Duress (threats or actual violence/imprisonment)
- Unconscious (extremely unfair or oppressive)
- Frustration (impossibility due to unforeseen event, e.g.: war, floods, riots)
Define: Force Majeure
Force Majeure is a very common clause within contracts that provides relief for events that each party agrees is beyond their control. This list of events is comprised of “Acts of God” (severe storms, etc.), fires, transport delays and even labor disputes.
The test for a fraudulent misrepresentation is a statement made: (3 things)
- Knowingly
- Without belief in truth
- Recklessly or careless!
Define: Estoppel of a right in a contract
Estoppel of a right in a contract occurs when a party no longer enforces a term of that contract. After a reasonable amount of time, that term is then deemed waived and becomes estoppel, as the new term is enforceable.
A great example of this is a landlord accepting rent payment on the 3rd of the month rather than by the terms of the agreement that state the 1st of the month. After a reasonable amount of time the landlord will not be able to enforce payment on the 1st of the month without sufficient notice and perhaps not even then.
Define: Quantum Meruit
Quantum Meruit (the amount it is worth) is a legal term used to define payment of “fair market value” or a “fair and equitable amount”. Quantum Meruit is a legal principle that applies when no legal contract is in place and a party must be compensated.
Define: Breach of Contract
If a party fails to hold up their “end of the deal” (aka fails to perform obligations specified in the contract) then there has been a breach of contract and damages may be awarded
The 4 types of breach of contract are:
- Inability (cannot perform duties, e.g. no money)
- Inadvertence (does not want to perform duties)
- Disagreement (such as scope of contract)
- Lack of Profit (more $$ to do work than to breach contract)
If you perform work that you believe is outside of the scope, you must provide this in order to have hope of recovering the money for your work.
Notice of Protest
This is the most common remedy to a breached contract
Damages
Less common remedies to breached contract are: (3 things)
- Specific performance (court order to carry out part of the contract)
- Injunction (prohibiting court order from breaching)
- Declaratory Order
The determination of damages is subject to three concepts:
- Mitigation (suffering party must reasonably mitigate damage)
- No Speculation (loss due to profit must be proven)
- Remoteness (not liable for damages too far removed, e.g. delayed item causing bankruptcy)
The 4 ways to end or discharge a contract are:
• Performance (carry out obligations & warranties expire, most common)
• Mutually Agree
• Express Term
o Repudiation (notice by words or conduct of no intention to perform)
o Anticipatory Beach (notice of intention to breach)
o Termination Clause (sets agreed upon terms and details payment)
• Breach
o Fundamental breach is major and stops the contract
o Simply breach does not stop the contract typically
Define: Contract Intent vs. Literal Interpretation
the intent of the contract always wins as the mutual intent is of prime importance.
Define: Contra Proferentem
if a contract is not clear (ambiguous) the interpretation that favors the party that did not write the contract is chosen.
Define: Agency & Authority
the Agent (engineer) is typically given authority by the Principle (owner) to guide 3rd Parties (contractor). This authority can be implied but is typically given by means of a contract and in the construction world this is termed a CCDC 2 Contract
Define: Indemnity
is often termed a hold harmless agreement in which one party agrees to bear the financial loss, or damages for another party. A common form of this agreement is insurance policy. This is often done by a principle to make the contractor liable for claims by a third party
Define: Paral Evidence Rule
is a law rule that assumes that prior evidence (that
contradicts) that is not included in the contract has been omitted for a reason and is therefore prohibited. If they wish to include other information they must amend the contract.
This refers to a breach of the duty to care, termed negligence, resulting in injury or loss
Tort.
A tort doesn’t need to involve a contract! And therefore implies a certain liability or duty for care.
The fundamental purpose of tort law
To compensate victims and not to punish the negligent
“concurrent liability in tort and contract” is when:
tort liability and liability for breach of contract both occur
In order to satisfy the court that compensation should be awarded, the plaintiff in a tort action must substantiate that all four criteria apply:
- The defendant owed the plaintiff a duty of care.
- The defendant breached that duty by his or her conduct; and
- The defendant’s conduct caused the injury (loss or damage) to the plaintiff
- The defendant’s breach was the proximate cause (sufficiently related).
3 types of intentional torts
Fraud
Trespass
Defamation
2 types of unintentional torts
Negligence
Negligent misrepresentation
What is strict liability
Strict Liability is a concept that applies to intentional torts in which the plaintiff does not need to prove liability. For example, a tiger owner will be liable no
matter how strong the cage, if the animal escapes and attacks – liability is implied. Another example is the landowner who doesn’t need to prove someone
entered his land negligently. All the proof required is that person entered his land – liability is implied.
Misrepresentation in tort law comes in three forms:
- Innocent misrepresentation
- Negligent misrepresentation
- Fraudulent misrepresentation
Define: Innocent misrepresentation in tort law
o Untrue fact
o Not known untrue
o Causing loss due to a false statement
Define: Negligent misrepresentation in tort law
o Untrue fact
o Known to be untrue
o Causing loss due to a false statement
Define: Fraudulent misrepresentation in tort law
o Untrue fact
o Known to be untrue
o With intent to deceive
o Causing loss due to a false statement