Mcs 3040 Midterm 2 Flashcards
Tort:
A social or civil wrong that gives rise to the right to sue and to seek on of several remedies
Tort has usually been committed when:
An intentional or careless act harms another
Easier to successfully sue for tort as standard of proof in tort law is based on a:
“Balance of Probabilities” test
Vicarious Liability
Liability without personal fault.
Example: employers are held liable for tort committed by employees
Intentional Tort
Means that the conduct was intended or deliberate (willful) as opposed to inadvertent
Assult
Conduct that makes a person think they are about to be struck
Battery
When someone intentionally makes unwanted contact with another person
Two defences to assault and battery
- Consent is a defence
- Self-defence
Defamation
A detrimental false statement about someone; must be published or broadcast
Slander
Spoken defamation
Libel
Usually written defamation
Trespass to Land
- Deliberate interference with property
- No consent/permission
Trespass to Chattels
- Deliberate interference with goods of another
- No consent
Conversion
- Deliberate appropriation of the goods of another
Detinue
- Deliberate possession of another’s goods
- Wrongful refusal to return the goods to the owner
False Imprisonment
- Deliberate restraint
- Wrongful refusal to return the goods to the owner
Malicious Prosecution
- Initiation of prosecution on criminal or quasi-criminal charges
- Subsequent acquittal of the plaintiff
- Prosecution was motivated by malice
Private Nuisance
- Unusual use of property
- Substantial and unreasonable interference caused to neighbor’s enjoyment or use of property
- Foreseeable injury
Negligence
Inadvertent or unintentional careless conduct that causes injury or damages to another person or their property
All four elements must be established to succeed in a negligence action:
A - A breach of care
B - Breach of duty
C - Causation
D - Damage
A duty of care is owed to the plaintiff
1. What needs to be established
2. Tests used
- That the proximity of the parties created an obligation to exercise caution or care
- a. Foreseeable plaintiff test
b. Policy considerations
Breach of that duty; breach of the standard of care
1. What needs to be established
2. Tests used
- That the defendant was not careful enough
- Reasonable person test
Causation
1. What needs to be established
2. Tests used
- a. That the defendant directly or physically caused the injury; and
b. That the injury was reasonably foreseeable - a. Physical: “but for” test
b. Legal: remoteness test
Damage
1. What needs to be established
2. Tests used
- That the plaintiff suffered injury or loss
- Refer to precedents - has this type of loss been recognized by courts as compensable?
Reasonable Foreseeable Test:
If it would be apparent to a prudent person that the conduct was likely to cause injury, a duty is owed
Donoghue v. Stevenson
Iconic case that everyone knows, about Donoghues beer having a snail in it but she couldn’t sue the restaurant because her friend bought her the drink. So Donoghue decides to sue the manufacturer, that is when they established a duty to exercise care.
Breach of the Standard of Care
Once the existence of a duty is established the second issue is whether the defendant demonstrated sufficient care
Reasonable person test:
What would a reasonably prudent person, in possession of all the facts of the case, have done in this situation?
C and D: Causation and Damages
Negligence requires a loss to person or property
“But For” Test: Physical Causation
- Damages must be a direct result of the carless conduct
- But for the conduct of the plaintiff, no injury would have resulted
Remoteness Test - Legal Causation
Whether the specific type of injury suffered was reasonably foreseeable
Three defences to a negligence claim:
- Voluntary assumption of risk
- Contributory negligence
- Illegality
4 types of insurance
- Liability insurance
- Property insurance
- Business Interruption insurance
- Life and Health insurance
Liability Insurance
Covers damage caused by negligence of self or employees and does not cover willful acts
Property Insurance
- Covers losses to buildings and there contents due to fire or other named perils
- Comprehensive convers everything except what is specifically excluded
- Coverage should correspond to actual value of the property
Business Interruption Insurance
- For an unseen event that causes a business to cease operations for a time
- Covers lost profits and expenses of bringing business back into operation
- Puts insured in same financial position as if the loss had not occured
Life and Health Insurance
Life
1. Provides for dependents and/or business associates
2. After death of insured
Health
1. Medical: covers health care expenses
2. Disability: provides income for disabled workers
3. Overlapping extended benefits
Elements of a contract:
- Consensus: mutual agreement
- Consideration: the price each party is willing to pay to participate in the contract
- Capacity: legally capable of understanding
- Legality: object and consideration involved in agreement must be legal
- Intention: must intend that legally enforceable obligations will result from contract
Void Contract
Is NOT a legally binding contract because an essential element is missing. If there is a void contract, the courts would try to put the parties back to their original positions
Voidable Contract
Is a contract that has legal effect, but one of the parties has the option to end the contract
Invitation to Treat
An invitation to potential customers to engage in the process of negotiation
The End of an Offer
- Offer ends at a specified time
- At the death or insanity of the offeror
- Revocation of offer before acceptance and revocation is communicated to the offeree
- When the offer is rejected
a. A counteroffer is put forward
Postbox Rule
When acceptance is mailed, it is effective when and where it is posted
Insanity
- No understanding of the nature of the transaction
- Person claiming insanity has onus to prove it
- Other person knew or ought to have known of insanity
Contracts performed illegally
The contract is performed in an illegal way
Contracts formed illegally
The contract itself is illegal
Misrepresentation
False statement of fact that persuades someone to enter into a contract
Innocent Misrepresentation
The person making it honestly believes it to be true
Negligent Misrepresentation
Carelessly providing false information
Fraudulent Misrepresentation
Fraud exists when the false statement was made knowingly or recklessly, not caring if true or false
Undue Influence
Pressure from a dominant and trusted person negates free bargaining
Unconscionable Transactions
Permits the court to set aside a contract in which one party has been taken advantage of
Misunderstanding
Neither party of aware of the other party’s misunderstanding about the terms of the agreement
Rules of Interpretation
- Reasonable person test
- Literal or liberal meanings imposed on written terms
Privity of Contract
Contract can only affect parties to it, like Mrs. Donoghue not being able to sue the coffee shop
Assignment
A person entitled to receive a benefit under a contract can transfer that benefit to a third party
Principal methods of discharging a contract
- Performance
- Breach
- Agreement between the parties
- Frustration
Conditions:
Term essential to substantial performance
Warranties:
Minor terms of contract
Breach by Refusal to Perform (Repudiation)
One party indicates to the other an intention to abandon and altogether refuse performance of the contract
Discharge by Agreement
Contracts can be modified or ended by agreement
Frustration
Outside, unforeseen events which:
Make performance impossible
Changes the nature of the contract
Equitable Remedies
- Recession
- Rectification
- Specific Performance
- Injunction
- Accounting
- Quantum Meruit
