Part 1 Flashcards
2 major systems
Common law and civil law
Common law
British Government passed law Statutes and judicial interpretations Cases or precedents Flexible
Civil law
French
Code of laws
Strict (not much interpretation)
Constitution
Rules for making laws
S.91
Federal powers
S.92.
Provincial powers
How laws are made: in provinces
A proposed law is called a bill.
A bill is proposed and if it is, discussed, amended and finalized after the 3rd reading
How laws are made: in the legislature
It is sent to the lieutenant governor for royal assent and then proclamation as a “statute law”
How laws are made: federal (Ottawa)
3 readings in the House of Commons + 3 readings in the senate
Royal assent of the Governor General who assents and proclaims
Stare decisis
Judges decisions at a higher level bing judges at a lower level or the same level regarding the application of law
Precedent
Earlier court decisions
Federal laws
Keep us all the same
Defence, healthcare, criminal law
Provincial laws
Keeps unique identity
Language
Education
Canada act 1982
Brought the constitution to can and added the charter of rights and freedoms
Fundamental freedoms
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
S.1
Limits
S.2
Fundamental freedoms
S. 7-14
Legal rights
S.33
Notwithstanding clause
Override of s.2 s.7
3 courts in AB
- court of appeal of AB
- court of queens bench of AB
- the provincial court of AB
SCC SUPREME COURT OF CANADA
last appeal for courts of provincial jurisdiction
Federal court
Tax court
Military court
Constituted by federal statute and administered by the federal govt
Rejection and country offer
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
The acceptance
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
Mail acceptance rule
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
Reward case:
Doing the required act
Ex: losing his wallet
Legal considerations
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
Exception of legal consideration
A contract under seal fulfills requirement of consideration
Four rules respecting valuable consideration
- 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
- Past consideration: cannot bind a future obligation. No value. Not legally bound. You are morally bound ex: foakes. V. Beer
Promissory estoppel
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
OACCL
Offer Acceptance Consideration Capacity Legality
What is a contract
A legally enforceable agreement
To make an agreement enforceable, you must have:
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
An offer must have the 4 P’s
- Product
- Price
- Parties
- Performance
Lapse - how long does an offer stay open?
- Reasonable amount of time
- Set time
- It offered loses capacity
- Revocation - offer or can cancel offer before acceptance
- Rejecting an offer kills it
- A counter- offer destroys the original offer
Consideration - quantum meruit
If a party received a good or service (consumes it) without knowing the price - the court will imply fair market value
Capacity
- Infants or minors
- Mentally incompetent persons and intoxicated persons
- First Nations
- Corporations
- Enemy aliens (not a Canadian citizen that we are at war with)
Legality
The courts will not enforce a contract for illegal objects
Void
Doesn’t exist in the eyes of the court
Form of contract
Some contracts must be in writing to be legally enforceable “statute of frauds”
What a contract needs in order for it to be binding
Must be in writing
- A contract that takes longer than a year
- A contract for sale of land or interest of land
- Agreement to be an executor of will/ estate
- Contract in consideration of marriage (pre ups)
- Guarantees - a contract to be responsible for another’s debt (guarantee acknowledgment act”
What just be in writing in a written contract?
- Product (subject matter)
- Price
- Parties
- Performance - unusual terms
- Signatures
Parole evidence rule
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)
Intention: mistake
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
Intention: misrepresentation
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
Intention: duress
When yo hate threatened into agreeing to a contract: voidable
Intention: undue influence
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
