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ACTG 2P40 > Midterm Review > Flashcards

Midterm Review Flashcards

1
Q

Define Tort

A

A wrongful act or an infringement of a right

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2
Q

What is Tort derived from and what does it mean?

A

Derived from the French word “wrong”

Pigeon Hole - “cause of action”

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3
Q

List the parts of the Torts Law

A

Unintentional torts

Negligence

Improper

Pigeon hole

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4
Q

What are the intentional torts?

A
  1. Assault and battery
  2. Trespass
  3. False Imprisonment
  4. Defamation
  5. Nuisance
  6. Economic Torts
  7. Negligence
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5
Q

Define assault and battery

A

Assault: Threat of violence to the person

i.e. pointing an unloaded gun at someone

Battery: The physical contact or harm without the person’s consent

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6
Q

Proof and damages of assault and battery

A

Proof: Easy to prove

More likely than not, the person engaged in an unwelcome action

Damages: Lost income from missing work as a result of the incident

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7
Q

What are the 2 ways trespass can occur?

A
  1. A person enters on to someone’s land without consent or lawful right
  2. A person puts something on someone else’s property without consent
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8
Q

Proof and damages of trespass?

A

Proof: Easy to prove

Damages: Difficult to prove damages

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9
Q

Businesses outlook on trespass

A

Businesses have an open door invitation to customers, but they have the right to ask you to leave and can eventually file for a trespass notice

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10
Q

Define the tort of trespass?

A

Unlawfully restraining a person

Physically restraining or leaving someone with the impression that they can’t leave

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11
Q

Define defamation

A

The action of damaging the good reputation of someone

Occurs when you say or write something about someone that causes damage to their reputation

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12
Q

What are the 2 forms of defamation

A
  1. Libel (written)

2. Slander (oral)

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13
Q

What are the rules of defamation

A
  1. The thing that was said had to have been spoken by a third party
  2. Have to be able to prove that the person said something about them
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14
Q

What are the defences to defamation

A
  1. Absolute Privilege (privilege)
    House of commons - have complete immunity from defamation
  2. Quality Privilege
    If someone says something about a movie in a review, it’s not necessarily defamation
  3. Truth
    The thing that was said about the person could be proven to be true
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15
Q

Proofs of defamation

A

Things to prove:
Harm/damage
Easy to prove harm/damage if the person has a good reputation
Difficult to prove harm/damage if the person is already held in a low regard

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16
Q

Define the tort of nuisance and provide an example

A

A person, thing or circumstance that causes an inconvenience to you and your property
Example:
excessive noise, terrible odours, obstruction of view, car blocking your driveway

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17
Q

Define economic torts

A

When the terms of an agreement between parties are broken by one party
Created to establish responsibilities and expectations of parties that choose to engage in business transactions with one another

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18
Q

Explain the types of economic torts

A
  1. Intentional interference with contractual relationship
    A party does something that has a negative affect on the relationship between 2 other parties
  2. In breach of contract
    A party incentivizes another to stop doing business with another party
  3. Conversion
  4. Passing off
    When someone fully capitalizes on the goodwill of another company
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19
Q

Define negligence (torts)

A

Failure to use reasonable care, resulting in damage or injury to another

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20
Q

First form of negligence

A
  1. Unintentional action

Performed to someone by another person accidentally

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21
Q

Second form of negligence

A
  1. Anyone who causes an injury to another person will have to compensate the damages to that person
    Test: Could a reasonable person have foreseen that this conduct could have caused harm on the person
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22
Q

Third form of negligence

A
  1. The defendant breached the standard of care

Test: What would a reasonably careful person have done in those circumstances

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23
Q

Fourth form of negligence

A
  1. The defendant has to have caused the plaintiffs injury
    Test: Causation
    Defendant’s carelessness is not the only thing that contributed to the plaintiffs injury
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24
Q

Causation Disputes

A
  1. Think skull rule
  2. respective foreseeability
  3. Voluntary assumption of risk
  4. Contributory Negligence
  5. Remoteness
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25
Q

Explain the thin skull rule

A

The victim may be predisposed to a condition that makes them more susceptible to injuries
Defendant is still responsible for damages

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26
Q

Explain the respective foreseeability dispute

A

Some accident could not have been foreseeable

Consequences could not have been predicted

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27
Q

Explain the voluntary assumption of risk dispute

A

The victim engages in a dangerous activity because of the type of activity it is
i.e. skydiving
Victim might have to sign a waiver before doing the activity
Difficult for the victim to claim negligence

28
Q

Explain the contributory negligence dispute

A

Both the defendant and victim are responsible for damages
i.e. a driver hit another car but the other driver wasn’t wearing a seatbelt so the injuries were much more severe
Court might say one party is responsible for 75% and other party is responsible for 25% of damages

29
Q

Explain the remoteness dispute

A

The loss must flow naturally from the breach

If there are too many negligent events that occurred, it’s too hard to determine who is responsible

30
Q

Define Occupier’s Liability

A

You know people are coming to your property so you know you owe them a duty of care

31
Q

Define Professional Liability

A

The law of negligence in the context of professionals

32
Q

Components of professional liability

A 
1. Contract
Have to provide the service
If it's breach you could get sued
2. Duty of negligent law
3. Fiduciary duty
A special relationship with someone
33
Q

Define the Law of Negligence

A

Duty of care a professional owes to their clients

34
Q

Errors and Omissions

A

A professional can get error and omissions insurance to protect themselves
i.e. a doctor forgets to tell the patient about a side effect of the surgery (omission)

35
Q

Regulatory Body

A

Code of conduct for professionals

A framework that a professional has to follow

36
Q

Types of Damages

A
  1. Special Damages
  2. General Damages
  3. Punitive Damages
  4. Injunction (rare)
  5. Vicarious Liability
37
Q

Special Damages

A

Meant to compensate for their out of pocket loss

i.e. medical expenses caused by someone else

38
Q

General Damages

A

Difficult to quantify

Judge how much the plaintiff should be compensated

39
Q

Punitive Damages

A

The court feels that the defendant has to pay more than they have with general/special damages

40
Q

Inunction

A

The court orders someone to do or to refrain from doing something

41
Q

Vicarious Liability

A

When the employer is responsible for the person

i.e. a driver is riving a FedEx truck, the employer is responsible for his actions

42
Q

Contracts

A

A legally enforceable promise

Provide for commercial certainty and property rights

43
Q

Types of promises

A
  1. Legally enforceable

2. Not legally enforceable

44
Q

Tree elements of a contract

A
  1. Offer
  2. Acceptance
  3. Consideratoion
45
Q

Rules when making an offer

A
  1. Has to be knowledge of the offer
  2. The idea of lapsing an offer
  3. Revoking an offer
  4. A counter offer means you are revoking/rejecting the offer
46
Q

Four Way an Offer Can Come to an End

A
  1. Offer is accepted
  2. Offer is rejected
  3. Offer lapses
  4. There is a counter offer
47
Q

Explain Acceptance

A

Has to be an acceptance between two parties

Has to be communicated

48
Q

Rules of Acceptance

A

Post Box Rule

Silence Does not Amount to Acceptance Rule

49
Q

Types of Contracts

A

Unilateral Contract
Standard Form Contract
Insurance Contract
Uncertainty of Terms

50
Q

Explain Unilateral Contract

A

Acceptance is the same as doing the offer
Completed by a way of action
i.e. lost dog poster example

51
Q

Explain Standard Form Contract

A

Terms by the owners that are brought to the attention of the person purchasing the tickets
i.e. no alcohol allowed in the vicinity example
Must be bolded or enlarged

52
Q

Explain Insurance Contract

A

Government legislates the terms of the contract

Gives ur assurance

53
Q

Explain Uncertainty of Terms Contract

A 
Contracts have to be voluntary
Should be able to identify the key terms of the contract
Subject
Price
Limitations
54
Q

Define Consideration

A

Has both parties promising to do something
Has to be something of value for both parties
A thing that can be measured
i.e. money

55
Q

Types of Promises

A 
Gratuitous Promise
Past Consideration
Pre existing Duty
Contracts Under "Seal"
Promissory Estoppel
Injurious Reliance
Gratuitous Reduction of Debt
Quantum Meriut
56
Q

Explain Gratuitous Promise

A

A promise made without consideration

Doing something you think is worth it and don’t need something in return

57
Q

Explain Past Consideration

A

Deals with the issue of time

i.e. employer bonus example

58
Q

Explain Pre existing Duty

A

Some people have an obligation to do something

i.e. firefighter has the obligation of putting out fires

59
Q

Explain Contracts Under “Seal”

A

Put a seal on the contract to assure that there is a legal document

60
Q

Explain Promissory Estoppel

A

A legal promise that is enforceable by law even if it was made without consideration
i.e. Landlord and tenant example

61
Q

Explain Injurious Reliance

A

Try to sue someone when you’ve had a loss due to something they promised you

62
Q

Explain Gratuitous Reduction of Debt

A

Someone owed money and the creditor said just pay me the principal and forget about the interest

63
Q

Rules of Foakes & Beer and how to avoid them

A
  1. If we make/start making that payment before the debt was due
    Considered good consideration for the new promise
  2. An arrangement applied only to payments of money
    Can’t offer cigarettes to reduce money of payment
  3. An arrangement that only exists between the creditor and debtor
    Can’t have a third party involved
  4. The creditor may agree to this under writing
    If it’s under seal, we know that it’s a form of good consideration
  5. Some legislation enacted in Ontario that helps ou
64
Q

Explain Quantum Meriut

A

Equitable principal developed by courts where one party comes along and requires the services of another party and the other party performs those services
If you receive a service from someone, you have to pay something
Court decides on a fair price by getting quotes from experts

65
Q

General Rule

A

The court tries to assume that there was an intention to create a legal relationship with offer and acceptance and consideration
Judge might say that there was never an intention there to make a legal relationship

ACTG 2P40 (1 decks)

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