MIDTERM

Question 1

define duress

Answer 1

to force/threat/extort someone to enter a contract

Question 2

define ‘undue influence’

Answer 2

doing smt under the control of someone else (dominant party)
eg)
-cult leader influencing you …’or else u cant go to heaven’
-marriages & families

Question 3

what are examples of unenforceable contracts?

Answer 3

-duress
-undue influence
-mistake
-misrepresentation

Question 4

regarding mistakes , when is a contract enforceable/unenforceable?

Answer 4

unenforceable- mutual mistakes (both parties)
enforceable- unilateral mistakes (one person)

Question 5

what are the different variations of mistakes?

Answer 5

-existence of subject matter; unenforceable mutual mistake only when subject matter is unique or irreplaceable
-identity; unenforceable unilateral mistake when identity is relevant
-non est factum

Question 6

define misrepresentation

Answer 6

mistatement of a material fact
eg) they told you something wrong about something that matters to you
material fact is when ur told something wrong about something that is relevant into making the decision

Question 7

what are the types of misrepresentations

Answer 7

-innocent/negligent; entitled to recission &/or expenses
-fraudulent; intentional lie- entitled to recission &/or expenses, sue for damages
-omission/nondisclosure— utmost good faith contracts broken

Question 8

what are the contracts of utmost good faith? (where you are obligated to to tell)

Answer 8

-insurance
-partnership
-agency
-trust agreements

Question 9

define novation

Answer 9

when u replace a party with consent

Question 10

define statutory assgnt

Answer 10

-an exception to privity

-assignment is in writing
-signed by assignor
-has to be absolute
-written notice to promisor

Question 11

define assault vs battery

Question 12

define false imprisonment

Question 13

define common law

Question 14

define voluntary assmption of risk

Question 15

define slander

Question 16

define res ipsa loquitor

Question 17

define conversion of goods and example

Question 18

define vicarious liability

Question 19

define notwithstanding clause

Question 20

define statute law vs common law

Answer 20

statute- law created by legislation (gov of cad, province of BC)
common- created by court decisions (precedent, case)

Question 21

what are the areas of jurisdiction in provincial court?

Answer 21

-criminal
-family
-small claims (up to 35,000)

Question 22

why choose provincial court?

Answer 22

-easy/fast access
-cheaper (no lawyers needed)
-simple procedure

Question 23

what are the factors considered before commencing court action?

Answer 23

-winnable case?
-within limitation period?
-likley to collect judgment?

Question 24

describe small claims court process?

Answer 24

1. notice of claim
   -file/pay fee
   -service by certified mail/personal/substitutional
2. reply
   -default jdgmnt after 14 days OR
   -sttlemnt conference
   -document disclosure
   3.trial
3. judgment

Question 25

process of supreme court of BC?

Answer 25

1. notice of civil claim (FORM 1)
   -file/fee
   -service; personal by 3rd party/substitutional
2. response (FORM 2)
   -default judgment
   -counterclaim optional (FORM 3) & counterclaim response (FORM 2)
   -all relevant documents in 35 days
   -examination for discovery
3. trial; both sides evidence, submissions
4. jdgmnt; award/interest/court costs

Question 26

what are the 5 collections of judgment?

Answer 26

-garnishment of debt
-garnishment of wages
-writ of seizure & sale
-file in land title office
-subpoena to debtpr/payment order

Question 27

define negligence in torts

Answer 27

breach of duty of care

Question 28

define thin skull rule

Question 29

define doctrine of last clear chance

Answer 29

who had the last opportunity before accident?

Question 30

define contributory negligence

Question 31

define professional negligence

Question 32

define occupiers liability

Answer 32

-invitees
-licencees
-trespassers

Question 33

define libel

Answer 33

permanent form of defamation; news/tv…

Question 34

define tort of deceit

Question 35

define conversion

Question 36

define wilful damage to goods

Question 37

define slander of goods

Question 38

define slander of title

Question 39

what are the effects of torts?

Answer 39

-compensation
-punishment
-behavioural change

Question 40

what are the remedies for torts?

Answer 40

-general damages
-special damages
-punitive/exemptory damages
-nominal damages