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BSEN 395 > Part 1 > Flashcards

Part 1 Flashcards

1
Q

2 major systems

A

Common law and civil law

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2
Q

Common law

A 
British
Government passed law 
Statutes and judicial interpretations
Cases or precedents 
Flexible
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3
Q

Civil law

A

French
Code of laws
Strict (not much interpretation)

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4
Q

Constitution

A

Rules for making laws

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5
Q

S.91

A

Federal powers

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6
Q

S.92.

A

Provincial powers

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7
Q

How laws are made: in provinces

A

A proposed law is called a bill.

A bill is proposed and if it is, discussed, amended and finalized after the 3rd reading

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8
Q

How laws are made: in the legislature

A

It is sent to the lieutenant governor for royal assent and then proclamation as a “statute law”

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9
Q

How laws are made: federal (Ottawa)

A

3 readings in the House of Commons + 3 readings in the senate

Royal assent of the Governor General who assents and proclaims

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10
Q

Stare decisis

A

Judges decisions at a higher level bing judges at a lower level or the same level regarding the application of law

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11
Q

Precedent

A

Earlier court decisions

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12
Q

Federal laws

A

Keep us all the same

Defence, healthcare, criminal law

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13
Q

Provincial laws

A

Keeps unique identity

Language
Education

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14
Q

Canada act 1982

A

Brought the constitution to can and added the charter of rights and freedoms

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15
Q

Fundamental freedoms

A

S.2
A) freedom of conscience and religion

B) freedom of thought, belief, opinion and expression including freedom of press and other media of communication

C) freedom of peaceful assembly

D) freedom of association

REASONABLE LIMITS

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16
Q

S.1

A

Limits

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17
Q

S.2

A

Fundamental freedoms

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18
Q

S. 7-14

A

Legal rights

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19
Q

S.33

A

Notwithstanding clause

Override of s.2 s.7

20
Q

3 courts in AB

A
  1. court of appeal of AB
  2. court of queens bench of AB
  3. the provincial court of AB
21
Q

SCC SUPREME COURT OF CANADA

A

last appeal for courts of provincial jurisdiction

22
Q

Federal court
Tax court
Military court

A

Constituted by federal statute and administered by the federal govt

23
Q

Rejection and country offer

A

When an offer is put forward and the offered wishes to change some terms - he has in fact rejected the offer and made a counter offer

24
Q

The acceptance

A

Must be made in a positive form whether in words or conduct.

Unconditional
Communicated to the offerer
Made in the manner required by the offer
Made within the time required or reasonable time
An acceptance after communication cannot be revoke

25
Q

Mail acceptance rule

A

If you send an offer by mail it is effective the date received, but if you reply by mail the acceptance is effective on the date posted not the date received

26
Q

Reward case:

A

Doing the required act

Ex: losing his wallet

27
Q

Legal considerations

A

Is something of value that binds a promise in contract

Each side must get value - a promise to do something for nothing is NOT legally binding

Anything that has value has consideration

28
Q

Exception of legal consideration

A

A contract under seal fulfills requirement of consideration

29
Q

Four rules respecting valuable consideration

A
  1. It is necessary to make binding a promise not made under seal

2.adequacy of consideration: need not be adequate but of some value in the eye of the law
Ex: over price /underprice

  1. Past consideration: cannot bind a future obligation. No value. Not legally bound. You are morally bound ex: foakes. V. Beer
30
Q

Promissory estoppel

A

When an obligation in a contract is forgiven

If the forgiven suffers risk or detriment to stay in the contract the forgiving party is estopped from denying the forgiveness

31
Q

OACCL

A 
Offer
Acceptance
Consideration 
Capacity 
Legality
32
Q

What is a contract

A

A legally enforceable agreement

33
Q

To make an agreement enforceable, you must have:

A

1) clear offer
2) unconditional acceptance
3) consideration- each party must get something of value
4) capacity- each party must have the ability to clearly understand the contract
5) legality - the contract must be for legal objects
6) intention - did the parties truly mean to be bound by the contract

34
Q

An offer must have the 4 P’s

A
  1. Product
  2. Price
  3. Parties
  4. Performance
35
Q

Lapse - how long does an offer stay open?

A
  1. Reasonable amount of time
  2. Set time
  3. It offered loses capacity
  4. Revocation - offer or can cancel offer before acceptance
  5. Rejecting an offer kills it
  6. A counter- offer destroys the original offer
36
Q

Consideration - quantum meruit

A

If a party received a good or service (consumes it) without knowing the price - the court will imply fair market value

37
Q

Capacity

A
  1. Infants or minors
  2. Mentally incompetent persons and intoxicated persons
  3. First Nations
  4. Corporations
  5. Enemy aliens (not a Canadian citizen that we are at war with)
38
Q

Legality

A

The courts will not enforce a contract for illegal objects

39
Q

Void

A

Doesn’t exist in the eyes of the court

40
Q

Form of contract

A

Some contracts must be in writing to be legally enforceable “statute of frauds”

41
Q

What a contract needs in order for it to be binding

A

Must be in writing

  1. A contract that takes longer than a year
  2. A contract for sale of land or interest of land
  3. Agreement to be an executor of will/ estate
  4. Contract in consideration of marriage (pre ups)
  5. Guarantees - a contract to be responsible for another’s debt (guarantee acknowledgment act”
42
Q

What just be in writing in a written contract?

A
  1. Product (subject matter)
  2. Price
  3. Parties
  4. Performance - unusual terms
  5. Signatures
43
Q

Parole evidence rule

A

If you ha e a written contract the court will not listen to spoken evidence that changes of adds to the written contract unless the words form a :

1: condition precedent (before a k)
2: a separate stand alone (collateral) agreement (outside of k)

44
Q

Intention: mistake

A

Common mistake: when you and the seller are both commonly mistaken bout the existence of subject matter

Mutual mistake: when each party is thinking of something different = recession

Unilateral mistake - about a fundamental term = voidable- court may decide too late

Mistaken identity: right of revision
Nature of document: if through no fault of yours you do not know what you are signing - the court will allow you to rescind

45
Q

Intention: misrepresentation

A

She the buyer is mislead about fundamental issues

A. Innocent: when the seller doesn’t know they are inducing (leading) you wrong = rescission

B. Negligent - carelessly induce = right of rescission

C. Fraudulent: knowing the lie to you = right of rescission + damages

46
Q

Intention: duress

A

When yo hate threatened into agreeing to a contract: voidable

47
Q

Intention: undue influence

A

When you are so influenced by the power of authority of another - it is not your decision = right of rescission

If you are in a position of dominance - to avoid undue influence = send the person for independent advice

= the inferior party cannot claim undue influence

BSEN 395 (7 decks)

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