Midterm (4-10) Flashcards
strict liability
liability that is imposed based on causation regardless of fault
fault
unjustifiable injurious conduct that intentionally or carelessly disregards the interests of others
public policy
economic, social, and political considerations or objectives that are believed to be beneficial to society as a whole
no-fault insurance
a system of compulsory insurance that eliminates fault as a basis for claims
worker’s compensation
a scheme in which employers contribute to a fund used to compensate workers injured in industrial accidents regardless of how the accident was caused
vicarious liability
the liability of an employer to compensate for torts committed by an employee during the course of his/her employment
trespass
unlawful entering or remaining on the land of another without permission
assault
the threat of violence to a person
battery
unlawful physical contact with a person
public nuisance
interference with the lawful use of public amenities
private nuisance
interference with an occupier’s use and enjoyment of her/his land
false imprisonment
unlawfully restraining or confining another person
false arrest
causing a person to be arrested without reasonable cause
malicious prosecution
causing a person to be prosecuted for a crime without an honest belief that the crime was committed
defamation
making an untrue statement that causes injury to the reputation of another person
libel
written defamation
slander
spoken defamation
absolute privilege
complete immunity from liability for defamation
qualified privilege
immunity from liability for defamation provided a statement was made in good faith
responsible communication on matters of public interest
a defence to defamation when the publication of the statement is in the public interest and was done responsibly
inducing breach of contract
intentionally causing one party to breach his contract with another
unlawful interference with economic relations
attempting by threats or other unlawful means to induce one person to discontinue business relations with another
unlawful means
civil action available under common law
product defamation
making false and damaging statements about the products of another person
negligence
the careless causing of injury to the person or property of another
duty of care
a relationship so close that one could reasonably foresee causing harm to another
standard of care
the level of care that a person must take in the circumstances
causation
injury resulting from the breach of the standard of care
remote
unrelated or far removed from the conduct
contributory negligence
a partial defence to a negligence action when the plaintiff’s or another defendant’s conduct also contributed to the injury
mitigate
duty to act reasonably and quickly to minimize the extent of damage suffered
voluntary assumption of risk
a defence to a negligence action when the plaintiff was aware of the risk and continued with the activity anyway
subrogation
where one person becomes entitled to the rights and claims of another
product liability
a negligence tort imposing liability on manufacturers for harm caused by defective products
circumstantial evidence principle
a prima facie case pf negligence may be established by drawing reasonable interferences from the circumstances surrounding the product manufacture and failure
duty to warn
manufacturer’s responsibility to make users aware of the risks associated with the use or misuse of the product
occupier’s liability
a negligence tort imposing liability on occupants of land for harm suffered by visitors to the property
invitee
a person permitted by an occupier to enter premises for business purposes
licensee
a visitor (other than an invitee) who enters premises with the consent of the occupier
damages
a sum of money awarded as compensation for loss or injury
punitive or exemplary damages
damages awarded with the intention of punishing the wrongdoer
special damages
damages to compensate for quantifiable injuries
general damages
damages to compensate for injuries that cannot be precisely expressed in monetary terms
restitution
in order to restore property wrongfully taken
injunction
a court order restraining a person from doing, or continuing to do a particular act
mandatory injunction
an order requiring a person to do a particular act
fiduciary duty
a duty imposed on a person who’s stands in a special relation of trust and loyalty to another
conflict of interest
a situation where a duty is owed to a client shoes interests conflict with the interests of the professional, another client, or another person to whom a duty is owed
third-party liability
liability to some other person who stands outside a contractual relationship
duty to account
the duty of a person who commits a breach of trust to hand over any profits derived from the breach
deceit
an intentional tort imposing liability when damage is caused by a false statement made with the intention of misleading another person
fraudulent misrepresentation
deceit
negligent misrepresentation
an unintentional tort imposing liability when an incorrect statement is made without due care for its accuracy, and injury is caused
disclaimer
an express statement to the effect that the person making it takes no responsibility for its accuracy
indeterminate liability
inability to be determined so that the magnitude of liability cannot be reasonable predicted, anticipated, or planned for
reliance
acting in a certain way because one believed the info received
detrimental reliance
the worsening of one’s situation after acting upon false information
code of conduct
a common standard of behaviour that may take the form of a values statement or a prescribed set of rules often used by a professional organization setting out the duties and appropriate standards of behaviour to be observed by its members
privilege
the right of a professional to refuse to divulge information obtained in confidence from a client
contract
a set of promises that the law will enforce
offer
a description of a promise one party is willing to make, subject to the agreement of the other party
standard form contract
an offer prepared in advance by the offeror including terms favourable to the offeror that cannot be changed by the offer but must be accepted as is or rejected in its entirety
lapse
the termination of an offer when the offer fails to accept it within a specified time, or within a reasonable time
option
a contract to keep an offer open for a specified time in return for a sum of money
exercise an option
accept the offer contained in an option
negative option billing
a practice of adding services and sending bills without request and rely upon the customer to cancel if they don’t wish the service
inviting tenders
seeking offers from suppliers
standing offer
an offer that may be accepted as needed from time to time
elements of a negligence action
- defendant owed a duty of care to plaintiff
- defendant breached the required standard of care
- plaintiff suffered injury or damage
- defendant’s conduct was the cause to the damage
3 defences applicable to negligence actions
- contributory negligence
- voluntary assumption of risk
- failure to mitigate damage
3 other types of negligence
- product liability
- duty to warn
- occupier’s liability
5 requirements for proving negligent misrepresentation
- duty of care based on special relationship between representor and representee
- representation in question must be untrue, misleading, inaccurate
- representor must have acted negligently in making the misrepresentation - fallen below standard of care
- represented must have relied on the negligent misrepresentation
- reliance must have been detrimental to the representee in the sense that damages resulted
4 ways an offer comes to an end
- lapse
- offeror revokes offer before acceptance
- offeree rejects offer/makes counter offer
- offeree accepts
jurisdiction
the province, state, or country whose laws apply to a particular situation
bilateral contract
a contract where offeror and offeree trade promises and both are bound to perform later
promisor
party who is under obligation to perform a promise
promisee
a party who has the right to performance according to terms of contract
breach of contract
a cause of action where a party to the contract claims that the other party has not fulfilled its promises
unilateral contract
contract in which the offer is accepted by performing an act or series of acts required by the terms of the offer
subsidiary promise
an implied promise that the offeror will not revoke once the offeree begins performance in good faith
bargain
each party pays a price for the promise of another
consideration
the price for which the promise of the other is bought
gratuitous promise
a promise made without bargaining for or accepting anything in return
past consideration
a gratuitous benefit previously conferred upon a promisor
moral cause
moral duty of promisor to perform his promise
gratuitous reduction of debt/mercantile law amendment act
once a part accepts a lower payment of a debt owed, the entire debt is extinguished
equitable estoppel
estop a promisor from claiming that she was not bound by her gratuitous promise where reliance on that promise caused injury to the promisee
3 elements of equitable estoppel
- legal relationship pre-existing between parties
- one of parties promises to release the other from some/all of the other’s legal duties to him
- other party, in reliance to that promise, acts in a way that alters his position and would make it a real hardship if the promisor reneges on his promise
injurious reliance
loss or harm suffered by a promisee who, to his detriment, relied reasonably on a gratuitous promise
document under seal
a convenient recorded in a document containing a wax seal, showing that the covenantor adopted the document as his act and deed
deed
document under seal
legal capacity
competence to bind oneself legally
repudiate
reject or declare an intention not to be bound by
beneficial contracts of service
contracts of employment found to be for a minor’s benefit
voidable contract
a contract that may be rendered non-binding at the option of one of the parties/court
ratifies
acknowledges and promises to perform
void
never formed in law
representative action
an action brought by one or more persons on behalf of a group having the same interest
arbitration agreements
contracts that require all disputes to be resolved in arbitration, not the courts
common law
precedents developed over time from the decisions of many cases
agreements in restraint of trade
non-competition agreements that diminish competition are against public policy
restrictive covenant
a term in restraint of trade e.g. promise not to carry on a competing business activity
the exception of agreements in restraint of trade
must prove to be reasonable as to restricted activity, geographic area, and time period
equitable relief
a discretionary remedy first developed by the courts of equity to undo an injustice
rescind
set aside; undo or revoke a contract and return the parties as nearly as possible to their original positions
unilateral mistake
only one of the parties believes there is a mistake
common mistake
both parties believe in the same mistake
rectification
correction of a written document to reflect accurately the contract made by the parties
mutual mistake
both parties believe a mistake exists, but their understandings of the mistake are different
non est factum
not my doing; defence only available to someone who, as a result of misrepresentation, has signed a document mistaken as to its nature and who has not been careless in doing so
- not valid defence to people who are careless
utmost good faith
a duty of disclosure owed when a special relationship of trust exists between the parties
undue influence
the domination of one party over the mind of another to such a degree as to deprive the weaker party of the will to make an independent decision
unconscionable contracts
contracts where there is unequal bargaining power between the parties and the powerful party gets and advantage
duress
actual or threatened violence or imprisonment as a means of coercing a party to enter into a contract
entirety clause
term in a contract stating that the whole agreement is contained in the written documents and that there are no other terms
indemnity
a promise by a third party to be primarily liable to pay the debt
executor
legal representative of the estate of a dead person
part performance
performance undertaken in reliance on an oral contract relating to an interest in land, and accepted by the courts as evidence of the contract in place of a written memorandum
unenforceable contract
a contract that still exists for other purposes but neither party may obtain a remedy under it through court action
plain meaning
dictionary definition of words
liberal meaning
looks at beyond plain meaning, looks at surrounding circumstances
contra proferentem
rule of contract interpretation that prefers the interpretation of a clause that is least favourable to the party that drafted the clause
parol evidence rule
a rule preventing a party to a written contract from later using parol evidence to add to, subtract from, or modify the final written contract
condition precedent
any set of circumstances or events that the parties demand must be satisfied or must happen before their contract takes effect
4 exceptions to parol evidence
- written agreement does not contain whole agreement
- missing term is part of a subsequential oral agreement
- missing term is part of a collateral agreement for which there is separate consideration
- missing term is a condition precedent to the written agreement
