Post Midterm

Question 1

5 Ways to Discharge a Contract

Answer 1

1) Agreement:
- Waiver: Giving up the right to enforce the contract.
- Provision: A clause that terminates the contract based on conditions; precedent or subsequent.
- Substitution: Revision and creation of a new contract.

2) Performance:
- Frustration of Contract: External events make contract performance impossible.
- Novation: Creating a new contract when both parties are unable to perform.
* Both parties are unable to perform the contract but are unable to make because of external events that make it not possible (Frustration Contract)

3) Impossibility:
- Personal Services: Contract depends on an individual (e.g., medical procedure).
- Non-Personal Services: Contract can be fulfilled by someone else.
- Frustration (Force Majeure): Unforeseen events beyond control (Act of God).
- Personal: No liability involved.
- Non-Personal: Liability could result.

4) Operation of Law:
- Direct Sellers Act: 10-day cool-off period to cancel the contract.
- Limitations of Actions Act: There are limitation periods for breach of contract.
- Bankruptcy: Bankruptcy of one party can discharge the contract.

5) Breach (can be breached in 2 ways)

Question 2

5 Ways to Discharge a Contract

Answer 2

1) Agreement
* Wavier: giving up
*Provision: clause that terminates the contract– Condition; precedent (subsequent-something takes place after the date of the contract, ex. Agree to something providing that something else does not take place)
*Substitution: revise and make a new contract

2) Performance
* Both parties are unable to perform the contract but are unable to make because of external events that make it not possible (Frustration Contract) Novation- new contract

3) Impossibility
* Something happens beyond control between the parties (depends if contract is for personal [medical procedure, sculpting for you, etc. rely on person] or non-personal [someone else can handle to contract, don’t know who is building your house] services)
* Frustration (force majeure) -if doctor sick and can’t, or if builders on strike – no fault of anyone
o Personal = cannot sue for damages (no liability involved)
o Non personal= liability could result
* Act of god

4) Operation of Law
* Direct Sellers Act
o 10 day cool off period, 10 days to cancel the contract
* Limitations of Actions Act
-You cannot sit on your rights forever (if breached contact, there are limitation periods, have 2 years from when money is due)
Bankruptcy
o Bankarupta

Bankruptcy and Insolvency Act

Question 3

4) Operation of Law

Answer 3

Bankruptcy and Insolvency Act

• Components: 2 objectives of bankruptcy law (2 main reason why there is bankruptcy laws):
  1) Bankruptcy (legal process)
  2) Proposal
• Objectives of Bankruptcy Law:
  1) Orderly Distribution of Assets:
  • Fair distribution of a debtor’s assets among creditors.
  2) Fresh Start for Honest Debtors:
  - Allows an honest but unfortunate debtor to start over.
  - Provides an opportunity to wipe out most debts.
  - Offers a release from most debts for a fresh financial beginning.

-a release from most of their debts so can start all over again with a clean slate

Question 4

Bankruptcy vs. Insolvency:

Answer 4

Don’t mix up bankruptcy and insolvent

• Bankruptcy:
  
  • Legal process declaring a person or business unable to repay debts.
  • Involves the orderly distribution of assets among creditors.
• Insolvency:
  
  • General financial state where liabilities exceed assets.
  • Encompasses both bankruptcy and other debt resolution processes.

Question 5

3 classes of creditors

Answer 5

▪ Secured: does not look to the individual to pay him, looks to the assets to pay debts (paid first)
▪ Preferred: employee entitled to pay 6 months as preferred creditors up to $2000. (government agencies, workers, compensation, landlord, funeral services, trustee in bankruptcy).- designated by statute
▪ General/ordinary: if anything is left over (rare), it is distributed
on a pro rata basis.
 i.e. 10% out of $4000, you will get 4 cents on the dollar.

Question 6

Classes of creditors

Answer 6

• Secured Creditors:
  
  • Hold a security interest in specific assets of the debtor.
  • Have a priority claim on those assets.
• Unsecured Creditors:
  
  • Do not have a security interest in any specific assets.
  • Share equally in the remaining assets after secured creditors are satisfied.
• Preferential Creditors:
  
  • Hold a special status, often defined by law.
  • Examples include employees owed wages and certain taxes.
  • Given priority in the distribution of assets over other unsecured creditors.

Understanding these classes is crucial for determining the priority of claims during the distribution of a debtor’s assets.

Question 7

Bankruptcy in Canada

Answer 7

• Every bankruptcy in Canada is reported to the superintendent of bankruptcy; then have licensed trustees
• Insolvent vs. Bankruptcy
  o A person is deemed to be insolvent if he can’t pay his bills.
  o If a persons debt exceeds the assets by at least $10,000 that person is deemed to be insolvent.
  o If they haven’t entered the legally into bankruptcy, they are insolvent

Question 8

2 Ways to enter bankruptcy

Answer 8

▪ File for bankruptcy (Voluntary Assignment)-sign papers (then in legal state of bankruptcy)
▪ Petition in bankruptcy (force person into bankruptcy)
* Creditors make application to court to force you into bankruptcy. -only takes one creditor to seek a petition (if successful then like if all creditors applied)

Question 9

Bankruptcy

Answer 9

Once bankruptcy No creditors have any legal rights to come after the debtor (lawsuits, claims stop)
-must be honest with trustee
-once application- creditors cant come after, if approved then discharged (9-12 months)

-criminal fines/charges are not discharges
-student loans after 7 years after being a student are not discharges (if can prove hardship reduced to hardship)
-divorce settlements not discharged
-other than that all other debts are discharges
-what debts are not discharged when apply for bankruptcy

Question 10

Act of Bankruptcy

Answer 10

o Can’t pay your bills
o Fail to pay bills
o Fraudulent transfer
o Taking money and fleeing the country
o Hiding assets
o Obtaining credit under bankruptcy

Question 11

Bankruptcy Offences

Answer 11

o Criminal acts
o Any fraudulent transfers is not only a act of bankruptcy but also a bankruptcy offence
o Lying to trustee is an offence, refusing to answer truthfully
o Fines $10,000 and/or prison up to 3 years
o Providing false information

Question 12

Act of Bankruptcy (more info)

Answer 12

• Definition:
  
  • An action or circumstance that indicates a debtor’s insolvency and triggers bankruptcy proceedings.

Examples of Acts of Bankruptcy:
1) Failure to Meet Liabilities:
- Inability to pay debts as they become due.

2) Fraudulent Conveyance:
- Transferring assets with the intent to defraud creditors.

3) Assignment for the Benefit of Creditors:
- Voluntary transfer of assets to a third party for the benefit of creditors.

Consequences:
- Initiates bankruptcy proceedings, allowing creditors to seek repayment through the legal process.

Understanding acts of bankruptcy is crucial for identifying situations where a debtor’s financial state necessitates legal intervention.

Question 13

Bankruptcy Offences

Answer 13

• Definition:
  
  • Actions or behaviors that are considered offenses under bankruptcy laws.
• Examples of Bankruptcy Offences:
  1) Concealing Assets:
  
  • Intentionally hiding or failing to disclose assets during bankruptcy proceedings.
  2) False Statements:
  - Providing false or misleading information in bankruptcy filings.3) Fraudulent Transfers:
  - Illegally transferring assets to others to avoid creditors.4) Preferential Payments:
  - Making payments to favored creditors before filing for bankruptcy.
• Consequences:
  
  • Criminal and civil penalties, including fines and imprisonment.
  • May impact the discharge of debts or result in the denial of bankruptcy relief.

Understanding bankruptcy offenses is crucial for debtors to comply with the law and avoid legal consequences.

Question 14

Farm Debt Meditation Act

Answer 14

o Farmers cannot be petition into bankruptcy
o Farmers can file themselves if they choose too for bankruptcy
o Farmers cannot file for bankruptcy, but instead have their own statute
o Only applies to farmers that cannot pay their debts

Question 15

Farm Debt Meditation Act cont…

Answer 15

• Overview:
  
  • Legislation designed to assist farmers facing financial difficulties by providing a mediation process for debt resolution.
• Key Points:
  1) Mediation Process:
  
  • Facilitates negotiations between farmers and creditors to reach a mutually agreeable solution.
  2) Scope:
  - Applies to farmers and certain fishers facing financial distress.3) Objectives:
  - Encourages open communication and fair agreements.
  - Aims to avoid foreclosure and bankruptcy, promoting the viability of farming operations.
• Benefits:
  
  • Provides farmers with a stay of proceedings during the mediation process.
  • Preserves the farm assets and allows for the development of a viable financial plan.

Understanding the Farm Debt Mediation Act is crucial for farmers navigating financial challenges and seeking debt resolution.

Question 16

Companies Creditors Arrangement Act (federal statute)

Answer 16

o For corporations who have outstanding issues, and owe over
$5,000,000 dollars (for Canadian corps)
o This act stops any lawsuits and give time to make plans to reorganizations of company (plan for reorganizing the company)

Obtain financing
 Reorganize itself internally
 Restructure the entire organization
o If most creditors approve reorganization, then court will approve reorganization

Question 17

Companies Creditors Arrangement Act (CCAA)

Answer 17

• Overview:
  
  • Federal statute in Canada providing a framework for the restructuring of financially troubled corporations.
• Key Points:
  1) Purpose:
  
  • Facilitates the negotiation of a plan between a company and its creditors for financial restructuring.
  2) Application:
  - Applies to large corporations with debts exceeding a specified amount.3) Features:
  - Grants a stay of proceedings, preventing creditors from taking legal actions against the company.
  - Allows for the creation of a plan of arrangement to address and resolve financial issues.
• Benefits:
  
  • Provides a mechanism for the orderly restructuring of a company’s affairs.
  • Aims to maximize the return to creditors while preserving the company’s value.

Understanding the Companies Creditors Arrangement Act is essential for stakeholders involved in the restructuring of financially distressed corporations.

Question 18

Proposal (alternative to bankruptcy)

Answer 18

o Form of mediation

o Division 1- applies to corporations: debts exceeds $250,000
▪Failure to comply with meditated proposal, is an automatic file of bankruptcy
▪applies to individuals: whose debts exceeds $250,000
-automatic petition to bankruptcy if don’t meet proposal/fail to keep up

▪ Division 2 -Consumer Proposal -owe up to 250,000 in debt
Less than $250,000, excludes mortgage on residence debt
-if fail to keep up with proposal then creditors have to petition them to bankruptcy

Has become very popular

Question 19

Proposal as an Alternative to Bankruptcy

Answer 19

• Overview:
  
  • A legal process providing an alternative to bankruptcy for individuals and businesses facing financial challenges.
• Key Points:
  1) Purpose:
  
  • Allows debtors to make a formal proposal to creditors to restructure their debts.
  2) Proposal Contents:
  - Outlines how the debtor intends to repay creditors, including modified payment terms.3) Creditor Approval:
  - Creditors must vote on the proposal; if accepted, it becomes a legally binding agreement.
• Benefits:
  
  • Avoids the stigma and severe consequences of bankruptcy.
  • Provides a structured framework for debt repayment and financial recovery.
• Limitations:
  
  • Requires approval from a majority of creditors.
  • Debtors must meet certain eligibility criteria to file a proposal.

Understanding the proposal process is essential for individuals and businesses seeking a viable alternative to bankruptcy.

Question 20

Discharge of Bankruptcy

Answer 20

o Between 3-12 months the person can apply for discharge in bankruptcy (it will discharge most contracts, discharge most debt, there are certain exceptions, not money owing for spousal or child support, not any fines imposed by the court)

Question 21

Discharge of Bankruptcy cont…

Answer 21

• Definition:
  
  • The release of a debtor from the legal obligation to repay certain debts after completing the bankruptcy process.
• Key Points:
  1) Conditions:
  
  • Debtors must fulfill all bankruptcy requirements and obligations.
  2) Automatic vs. Conditional Discharge:
  - Automatic discharge is granted to first-time bankrupts without objections.
  - Conditional discharge may apply if the debtor has surplus income or other specific circumstances.3) Impact on Debts:
  - Discharges unsecured debts, providing a fresh financial start.
  - Certain debts, such as student loans or court-ordered fines, may not be discharged.
• Rehabilitation:
  
  • Obtaining a discharge is a crucial step in the debtor’s rehabilitation process.

Understanding the discharge of bankruptcy is vital for individuals navigating the bankruptcy process and seeking debt relief.

Question 22

Ex. Payday loans

Answer 22

Pay day loans (on west side)- fairly well restricted, cannot exceed $1,500, length of term cannot exceed 62 days length of repayment- vendor must be licensed, can only take postdated check/
-on pay day loan interest charges 891%- then fed gov put in legislation

Question 23

Payday Loans Regulation

Answer 23

• Overview:
  
  • Payday loans on the west side are subject to specific regulations to protect consumers.
• Restrictions:
  1) Maximum Loan Amount:
  
  • Payday loans cannot exceed $1,500.
  2) Term Length:
  - The length of the loan term cannot exceed 62 days.3) Repayment:
  - Repayment is typically required on the borrower’s payday.
• Licensing:
  
  • Vendors offering payday loans must be licensed to operate.
• Payment Method:
  
  • Vendors can only accept a postdated check as a repayment method.
• Interest Charges:
  
  • Interest charges on payday loans were historically high, reaching 891%.
• Legislation:
  
  • The federal government has implemented legislation to address and regulate payday loan practices.

Understanding these regulations is essential for consumers and lenders involved in payday loan transactions.

Question 24

5) Breach (can be breached in 2 ways)

Answer 24

Anticipatory Breach
o Time for the performance of contract has not arrived and you let them know ahead of time that they will not go through with it

They can do two things:
1) Treat the contract as terminated and seek a remedy (sue)
2) Wait and see if I perform the contract and then if I fail to perform at the given date then seek a remedy (sue)

Simple Failure to Perform
o Simply don’t do the contract without telling the other party beforehand

Question 25

Breach of Contract

Answer 25

• Definition:
  
  • Breach of contract occurs when one party fails to fulfill its obligations as specified in the agreement.
• Two Ways of Breach:
  1) Material Breach:
  
  • A significant and serious violation that goes to the core of the contract.
  • Allows the non-breaching party to terminate the contract and seek damages.
  2) Minor Breach:
  - A less significant violation that does not go to the core of the contract.
  - Non-breaching party can seek damages but is not entitled to terminate the contract.
• Remedies for Breach:
  
  • Damages: Monetary compensation to the non-breaching party for losses.
  • Specific Performance: Court order requiring the breaching party to fulfill their contractual obligations.

Understanding breach of contract and its consequences is crucial for parties entering into contractual agreements.

Question 26

Anticipatory Breach

Answer 26

• Definition:
  
  • Anticipatory breach occurs when one party to a contract clearly indicates, through words or actions, that they will not fulfill their contractual obligations in the future.
• Key Characteristics:
  1) Express Communication:
  
  • The breaching party explicitly communicates their intention not to perform.
  2) Actions Indicating Inability:
  - Conduct or circumstances imply the party will be unable to fulfill contractual obligations.
• Consequences:
  
  • The non-breaching party can treat the anticipatory breach as an immediate breach of contract.
  • Allows the non-breaching party to pursue legal remedies without waiting for the actual breach to occur.
• Remedies:
  
  • Damages: Compensation for losses resulting from the anticipatory breach.
  • Termination: The non-breaching party can terminate the contract immediately.

Understanding anticipatory breach is crucial for parties to react appropriately when it becomes evident that contractual obligations may not be met.

Question 27

Simple Failure to Perform

Answer 27

• Definition:
  
  • Simple failure to perform refers to a party’s failure to fulfill its contractual obligations without clear indications of an intentional breach.
• Characteristics:
  
  • The failure to perform is unintentional and may result from various reasons such as incapacity, negligence, or unforeseen events.
• Consequences:
  
  • Non-breaching party typically seeks remedies such as damages or specific performance.
  • The breaching party may have defenses based on the reasons for the failure to perform.
• Remedies:
  
  • Damages: Compensation for losses incurred due to the failure to perform.
  • Specific Performance: Court order requiring the breaching party to fulfill their contractual obligations.

Understanding simple failure to perform is crucial for parties to navigate contractual disputes when the breach is unintentional.

Question 28

Remedies for Breach of Contract

Answer 28

o Ubi Jus Ibi Remedium (Where there is a right there is a remedy)
o Damages – main remedy (damages) and usually only remedy

▪ By damages, the law means money compensation for a wrong or injury sustained

▪ Damages= Money compensation for a wrong or injury sustained

▪ Compensation – to put you back in the state you where you would have been had the wrong or injury not been committed, in dollar value

▪ In Canada, not too many punitive damages (damages meant to punish the payer rather than support the payee)

Tort (Tortus)
▪ A civil wrong or injury sustained, compensated by money damages.
▪ Civil wrong compensated by money damages (intentional or unintentional)
▪ Damages= compensatory not punitive

Question 29

Remedies for Breach of Contract

Answer 29

• Definition:
  
  • Remedies for breach of contract are legal solutions available to parties when one fails to fulfill their contractual obligations.
• Common Remedies:
  1) Damages:
  
  • Monetary compensation awarded to the non-breaching party to cover losses caused by the breach.
  2) Specific Performance:
  - Court order requiring the breaching party to fulfill the terms of the contract.3) Cancellation and Restitution:
  - Cancelling the contract and returning any benefits received.4) Injunction:
  - Court order prohibiting the breaching party from certain actions.
• Factors Influencing Remedies:
  
  • Nature and severity of the breach, the type of contract, and the availability of specific performance.

Understanding the available remedies is crucial for parties seeking legal recourse when a breach of contract occurs.

Question 30

Remedies for Breach of Contract cont…

Answer 30

• Ubi Jus Ibi Remedium (Where there is a right there is a remedy):
  
  • Legal principle emphasizing that for every legal right violated, there is a corresponding remedy available.
• Damages – Main and Usually Only Remedy:
  
  • Definition:
    
    • Damages are the primary remedy for breach of contract.
    • By damages, the law means money compensation for a wrong or injury sustained.
  • Types of Damages:
    
    • Compensation: Aimed at putting the non-breaching party in the position they would have been if the breach hadn’t occurred, in dollar value.
  • Punitive Damages:
    
    • In Canada, punitive damages (meant to punish the payer rather than support the payee) are not frequently awarded in contract cases.
• Tort (Tortus):
  
  • Definition:
    
    • A civil wrong or injury sustained, compensated by money damages.
    • Civil wrong compensated by money damages (intentional or unintentional).
  • Damages in Tort:
    
    • Damages in tort cases are compensatory, not punitive.
    • Aimed at compensating the injured party rather than punishing the wrongdoer.

Question 31

Example

Answer 31

Ex. Boy drowned at ymca for bday party (were promised 2 guards on duty but only 1 was), the water was murky when should have been clear

-had to tell them what law valued , not worth very much -could only seek funeral costs, in eyes of the law a 6 yr old is not worth much (gave them precedent)

Ex. In regina, nurse fed 5 newborns phelmeldahyde instead of formula , cant measure how much worth in eyes of the law (not punitive)

Damages have to compensate the loss (ex. Need 24 hour care, more expensive than if were dead)

What flows from breach of contract we look ahead

What flows from tort we look back

Question 32

Damages in Legal Cases

Answer 32

• Contractual Damages:
  
  • Example 1 (YMCA Incident):
    
    • A breach of contract occurred when the YMCA failed to provide the promised safety measures. The resulting damages were limited to funeral costs due to the legal view that a 6-year-old’s life is not valued highly.
      
      • Principle: Damages in breach of contract cases aim to compensate the specific loss suffered. In this case, it was funeral costs.
  • Example 2 (Nurse Incident):
    
    • In the case of a nurse mistakenly feeding newborns formaldehyde, determining the value is challenging. Damages are meant to compensate the loss, but in such cases, it’s difficult to measure the worth in the eyes of the law.
• Tort Damages:
  
  • Comparison with Contract:
    
    • Damages in tort cases are compensatory, not punitive. They aim to compensate the injured party rather than punish the wrongdoer.
  • Looking Back:
    
    • Unlike breach of contract cases that look ahead to compensate for future losses, tort cases look back to address the harm that has already occurred.
• Considerations:
  
  • Damages must compensate the loss suffered, whether it be ongoing care expenses or addressing the harm caused by a tortious act.

Understanding the nature of damages is crucial in both contractual and tort cases, where the focus differs based on legal principles and objectives.

Question 33

Tort (Tortus)

Answer 33

▪ A civil wrong or injury sustained, compensated by money damages.
▪ Civil wrong compensated by money damages (intentional or unintentional)
▪ Damages= compensatory not punitive

▪ In the law of contract, in the award of damages we look ahead (what should have happened, and didn’t); in the law or tort, we look behind (what happened)
▪ We try to determine the “natural flow of the breach”
 Ex. I hire you to renovate my house
 We agree on a contract for $30,000 to renovate
 Halfway through you quit, I paid you $15,000
 I can’t ask you to come back and finish, so I have to get someone else
 Someone else will finish it for $20,000, whereas if you finished it would only be $15,000; therefore I have suffered a loss of $5,000
 Although, if you did find someone to paint it for
$15,000 you have not suffered any losses, therefore not in need of any damages

Question 34

Tort (Tortus) Cont…

Answer 34

• Definition:
  
  • A tort is a civil wrong or injury sustained, compensated by money damages.
• Key Characteristics:
  
  • Involves civil wrongs compensated by compensatory damages, whether intentional or unintentional.
• Damages:
  
  • Damages in tort cases are compensatory, not punitive, aiming to compensate the injured party for the harm suffered.
• Comparison with Contract:
  
  • In the law of contract, damages are awarded by looking ahead to what should have happened but didn’t. In tort law, damages are determined by looking behind to understand what happened.
• Determining the Natural Flow of the Breach:
  
  • Example Scenario:
    
    • Contract for house renovation at $30,000; halfway through, the contractor quits after receiving $15,000. The homeowner incurs an additional cost of $5,000 to hire someone else to complete the renovation.
  • Analysis:
    
    • The natural flow of the breach is examined, considering what would have happened if the breach hadn’t occurred. Damages are calculated based on the actual loss suffered.

Understanding the difference in the approach to damages between contract and tort law is essential for assessing compensation in legal cases.

Question 35

Different types of damages

Answer 35

o General damages – damages awarded for pain and suffering, the natural flow from the breach

o Nominal damages – hurt feeling damages, usually worth $1 (i.e. embarrassment)
▪To collect damages, have to prove there was damages

o Special damages – out of pocket expenses (e.g. braces, clothes, glasses, hospital expenses, etc.)
▪ if injured in tort action and broke glasses

o Liquidated damages (agreed) – damages that are agreed upon within the contract (common in construction contracts)
▪ No court- if late know what you have to pay
▪ The amount must be compensatory and not punitive (if in excess of wjat the building would produce them punitive – must be compensatory to be paid)

o Punitive damages (exemplary)– simply meant to punish the wrongdoer (i.e. committed a fraud, disregarded safety, etc.) punishment

o Idea to set example for others- don’t do it (will pay a lot in damages)
▪ Also called Exemplary Damages because they are so humongous, this is not to compensate the victim but rather set an example to other companies/people not to do the same
▪ Usually done if there was negligence, not usually for complete accidents (such as the babies being fed formaldehyde)

*“Quantum Meruit” (what it is worth)
o In the eyes of the law, everyone has the same worth.
o There was never an agreement on price, pay what market price is
o Ex. The arm of a pro tennis player is worth more than the arm of a lawyer
o The law uses this to assess the amount of money damages awarded
o In the eyes of the law, a child is worth the least amount of money where a business man in his late 30’s, in the height of his potential earnings, will be worth the most

Question 36

Types of Damages cont…

Answer 36

• Compensatory Damages:
  
  • Definition:
    
    • Compensatory damages aim to compensate the injured party for the actual loss or harm suffered as a result of the breach or wrongful act.
  • Subtypes:
    1) Special Damages:
    
    • Quantifiable monetary losses, such as medical bills or property damage.
    2) General Damages:
    - Non-monetary losses that are more subjective, like pain and suffering or emotional distress.
• Punitive Damages:
  
  • Definition:
    
    • Punitive damages are intended to punish the wrongdoer and deter similar conduct in the future.
  • Criteria:
    
    • Awarded in cases of egregious misconduct or intentional harm.
• Nominal Damages:
  
  • Definition:
    
    • Nominal damages are symbolic and minimal monetary awards granted when there’s a technical violation of rights but no substantial loss.
• Liquidated Damages:
  
  • Definition:
    
    • Liquidated damages are pre-determined amounts specified in the contract as compensation for specific breaches.

Understanding the different types of damages is crucial in legal cases to appropriately address the nature of the harm and determine the appropriate compensation.

Question 37

Quantum Meruit

Answer 37

• Definition:
  
  • Quantum Meruit is a Latin term that translates to “as much as he has earned” or “what it is worth.”
• Legal Concept:
  
  • Refers to the legal principle allowing a party to recover a reasonable value for services or goods provided, even in the absence of a formal contract.
• Application:
  
  • Typically invoked when there’s no express agreement on compensation, but one party has benefited from the services or goods of another.
• Factors Considered:
  
  • The court assesses the fair and reasonable value of the services or goods based on factors such as market rates, customary charges, and the nature of the work performed.

Quantum Meruit is a remedy that ensures fair compensation for services or goods rendered, even when there’s no explicit contract specifying payment terms.

-aligned with damages (how much does it merit)

-ex. Price of root canal (don’t tell you how much) what is market price value = what you have to pay (ex. If can prove in 3 other dentist offices it’s a lot less, then pay quantum meruit price

Question 38

Other Remedies

Answer 38

• Specific Performance
  o A court order to the parties of the contract to carry out specific terms of the contract. (do what you agreed to do)
  o Only Available (in 2 areas of law) only for 1) unique/original chattel (i.e. rare painting, sculpture as examples of personal property) and/or a contract 2) for the sale of land with a specific performance
  o In the eyes of the law, land is unique, that is why specific performance is available.
• Injunction
  o A court order, restraining or prohibiting the parties (a person of what he contracted not to do) of what the contract what they are contracted to do.
  o Ex. Restraint of trait clause, sell dental practice wont return to practice in 5 yrs in 30 mile radius- after 1 year start new competition – order of court to contract what you were not to do

Question 39

Other Remedies cont…

Answer 39

• Specific Performance:
  
  • Definition:
    
    • Specific performance is a court order compelling the parties of the contract to carry out specific terms of the agreement, requiring them to do what they agreed to do.
  • Limitations:
    
    • Only available in two areas of law:
      1) Unique/Original Chattel: Applies to rare or unique personal property like a painting or sculpture.
      2) Sale of Land: Specific performance is available for land contracts because, in the eyes of the law, land is considered unique.
• Injunction:
  
  • Definition:
    
    • An injunction is a court order restraining or prohibiting the parties from doing what the contract prohibits or compelling them to fulfill their contractual obligations.
  • Example:
    
    • A restraint of trade clause in a contract might include an injunction preventing someone from competing in the same industry or location for a specified period.

These remedies, such as specific performance and injunctions, provide the court with tools to enforce contractual obligations and prevent certain actions that go against the contract.

Question 40

De Minimas Non Curat Lex (Of small things the law has no remedy)

Answer 40

• This means if something is so very small the law will not bother with it
• Applies mostly to civil law – not indecent exposure
• Could sue for 25 cents but thrown out of court bc its so small courts will not bother
• Latin Principle:
  
  • “De Minimas Non Curat Lex” translates to “Of small things, the law has no remedy.”
• Legal Concept:
  
  • Reflects the idea that the law does not concern itself with trifles or minor matters that are insignificant or inconsequential.
• Application:
  
  • Courts may dismiss or not entertain claims that are deemed trivial, especially if pursuing legal remedies for such matters would be impractical or disproportionate.

Understanding this principle is essential to recognize situations where legal intervention may not be appropriate for minor or insignificant issues.

Question 41

Interest

Answer 41

Interest Act
o If anyone enter into a agreement of any kind with interest, if that interest is 60% or more it is a criminal offence
* Interest means the aggregate of all charges and expenses in the form of charge, fee, fine, or any other form pay or payable in the advancing of credit in the agreement

• Overview:
  
  • The Interest Act is a federal statute in Canada that regulates the calculation and payment of interest on debts.
• Key Provisions:
  1) Capping Compound Interest:
  
  • The Act limits the charging of compound interest, ensuring that interest on arrears is not compounded more than once a year.
  2) Prepayment Penalties:
  - Governs the calculation of prepayment penalties on mortgages, providing guidelines to prevent excessive charges.3) Discounting Interest in Advance:
  - Prohibits charging interest in advance unless expressly agreed upon in writing.
• Application:
  
  • Applies to various types of transactions, including loans, mortgages, and other debt instruments, ensuring fairness and transparency in interest calculations.

Understanding the Interest Act is crucial for both lenders and borrowers to ensure compliance with the regulations governing interest payments.

Question 42

Tort (tortus):

Answer 42

a civil wrong compensated by money damages
* Can be both a civil and criminal wrong
□ Tortious Liability

• Definition:
  
  • Tort is a legal term derived from the Latin “tortus,” meaning a civil wrong or injury, often resulting in legal liability.
• Characteristics:
  
  • Tort encompasses a wide range of civil wrongs, whether intentional or unintentional, that result in harm or loss to an individual or their property.
• Compensation:
  
  • Damages in tort cases are compensatory, aiming to reimburse the injured party for losses suffered due to the wrongful act.
• Examples:
  
  • Torts can include negligence, intentional infliction of emotional distress, defamation, and other wrongful actions leading to legal consequences.

Question 43

Tortious Liability

Answer 43

• Definition:
  
  • Tortious liability refers to the legal responsibility or obligation imposed on a party for committing a civil wrong (tort) that results in harm or loss to another individual.
• Characteristics:
  
  • Arises from the breach of a duty owed to others, leading to legal consequences for the wrongdoer.
• Compensation:
  
  • The primary remedy for tortious liability is compensatory damages, which aim to reimburse the injured party for the losses incurred due to the wrongful act.
• Types of Torts:
  
  • Tortious liability can arise from various types of torts, including negligence, intentional torts, and strict liability.

Question 44

Strict Liability

Answer 44

• If you had a claim against another person (injury done to your person), the only person you could go after was the person directly and deliberately involved in your injury
• Any one storing or housing any dangerous goods is at fault for any
  damages caused to others property.
• EXAMPLE:
  o You take your car in to get summer tires put on
  o You drive down Broadway and your wheel comes off and hits a person, seriously injuring them
  o Who is liable, you or the mechanic? (at fault in the situation)
  o RESULT: Under strict liability, that person (who was injured) can only look to YOU for liability and damages (DELIBERATE and DIRECT cause of injury)

Question 45

Strict Liability cont…

Answer 45

• Definition:
  
  • Strict liability is a legal concept where a person or entity is held responsible for certain actions or activities regardless of fault or intent, especially if those actions result in harm or damage.
• Characteristics:
  
  • Unlike other forms of liability, strict liability does not require proof of negligence or intent. The focus is on the inherent risk associated with certain activities.
• Application:
  
  • Commonly applied in cases involving inherently dangerous activities, products liability, and environmental regulations.
• Examples:
  
  • Product Liability: Manufacturers may be held strictly liable for defective products that cause harm, even if they exercised reasonable care.
  • Ultra hazardous Activities: Individuals engaging in activities with a high risk of harm, like blasting, may be strictly liable for resulting damages.

Question 46

Intentional Tort (Advertant)

Answer 46

• Causing personal injury, economic harm, interference with an individuals property.
• Act that is done deliberately with intent, that causes harm to someone.
  □ Unintentional Tort (Negligence, Inadvertent)
• Definition:
  
  • An intentional tort, also known as an advertant tort, refers to a civil wrong where the wrongdoer deliberately engages in actions with the intent to cause harm or injury to another person or their property.
• Key Elements:
  
  • Intent: The intentional tort requires the actor to have the specific intent to commit the harmful act, distinguishing it from accidental or negligent actions.
• Examples:
  1) Assault: Intentionally causing another person to fear physical harm.
  2) Battery: Intentional and harmful physical contact with another person.
  3) False Imprisonment: Intentional restraint of another person’s freedom of movement.
• Legal Consequences:
  
  • The victim of an intentional tort can seek compensatory damages for the harm suffered, and in some cases, punitive damages may be awarded to punish the wrongdoer.

Question 47

1) Assault and Battery

Answer 47

• Separate Torts
• Assault – creating the apprehension (fear) of physical contact (being physically attacked)
  o No contact in an assault
  o Sense of immediacy – sense of imminent danger
  o Getting an STD is a form of assault – a body fluid you did not consent to.
• Battery – Actual contact
  o When someone causes unwanted physical contact
  o The least touching of another in anger
  o Without consent
• Assault:
  
  • Definition:
    
    • Assault is the intentional act that causes another person to fear that they will be subjected to harmful or offensive contact.
  • Key Elements:
    
    • Intent: The actor must have the intent to cause apprehension or fear in the victim.
    • Apprehension: The victim must reasonably fear imminent harm.
  • Example:
    
    • Raising a fist as if to strike someone without actually making physical contact.
• Battery:
  
  • Definition:
    
    • Battery is the intentional and harmful or offensive physical contact with another person.
  • Key Elements:
    
    • Intent: The actor must have the intent to cause harmful or offensive contact.
    • Actual Contact: Unlike assault, battery requires actual physical contact.
  • Example:
    
    • Striking someone with a raised fist, resulting in physical impact.

Question 48

Defenses to Assault and Battery

Answer 48

Consent
o Volenti Non Fit Injuria (He who consents cannot claim injury)
o Must be freely and genuinely given and relating to the act done
o Must be an informed consent

o EXAMPLE:
▪ Two people in a bar get into an argument and step into a back alley
▪ They raise their fists to fight and beat each other up
▪ One gets beat up a little more and chooses to sue
▪ RESULT: This is Volenti Non Fit Injuria (as long as equal force) because they both agreed (consent) to come outside

o Equal force means fist vs. fist, no one had a knife or any other weapon
o If one picked up a rock an threw it (excessive force) then
Volenti Non Fit Injuria does not apply

Self Defense
o Valid when defending yourself in a reasonable way
▪ Once the danger has passed, you cannot continue to strike (cannot use excessive force)
▪ Must be no other way of dealing with the situation (i.e. retreating, calling for help, etc.)

□ You have no legal obligation to help someone in need unless you are the parent/ guardian or family member of that person, or anyone in a position of authority (lifeguard).

Question 49

Defense cont…

Answer 49

• Consent:
  
  • Definition:
    
    • Consent is a defense to assault and battery, based on the principle of “Volenti Non Fit Injuria” (He who consents cannot claim injury).
  • Key Elements:
    
    • Freely Given: Consent must be freely and genuinely given.
    • Informed Consent: The person must be informed about the nature of the act to which they are consenting.
  • Example:
    
    • Two individuals in a bar engage in a consensual fight in a back alley. If both parties raise their fists and willingly participate, and the force used is equal, the defense of “Volenti Non Fit Injuria” applies.
    • Note: If one party uses excessive force (e.g., picks up a weapon), the defense may not apply.
• Self-Defense:
  
  • Definition:
    
    • Self-defense is a valid defense to assault and battery when an individual reasonably defends themselves from imminent harm.
  • Conditions:
    
    • Reasonable Force: The force used in self-defense must be reasonable and proportional to the threat.
    • No Excessive Force: Once the danger has passed, continuing to use force may negate the self-defense claim.
    • No Alternative: Self-defense is valid when there is no reasonable alternative to dealing with the threat (e.g., retreating, calling for help).

Question 50

Emergency Medical Aid Act

Answer 50

• Absolves a doctor, nurse, or other person etc. from any liability if they offer assistance in good faith, that results in further injury outside of a hospital setting.
  o Offer assistance to a person in injury that is not in a hospital and you move them in a way that injures them further
  o Only exception is if the conduct results in gross negligence
  ▪ Gross Negligence = a wanton and reckless disregard for the life and safety of another person
  o Must occur at the immediate scene
• Overview:
  
  • The Emergency Medical Aid Act is legislation that provides legal protection to individuals who voluntarily and without expectation of compensation provide emergency medical aid to those in need.
• Key Provisions:
  1) Good Samaritan Protection:
  
  • Grants legal immunity to individuals who, in good faith, provide emergency medical aid, protecting them from civil liability.
  2) Exclusions:
  - Does not apply if the person providing aid is grossly negligent or engages in willful misconduct.
• Purpose:
  
  • Encourages bystanders to assist in emergencies by removing the fear of legal repercussions, thereby promoting prompt and necessary medical aid.

Question 51

2) False Imprisonment

Answer 51

• Total restraint of free movement without lawful justifications against the persons will.
• Not an injury to a person
• Can range from locking a person up, threatening a person, by implication.
  o Shoplifting – if you’re taken by the arm and forced to follow the clerk
• Definition:
  
  • False imprisonment is the intentional and unlawful restraint or restriction of another person’s freedom of movement, against their will.
• Key Elements:
  1) Intentional Act:
  
  • The defendant must intentionally and purposefully restrict the freedom of the victim.
  2) Unlawful Restraint:
  - The restraint must be against the victim’s will and without lawful justification.3) Awareness of Confinement:
  - The victim must be aware of the confinement or be harmed by it.
• Examples:
  
  • Unlawfully detaining someone in a room against their will, blocking exits, or using threats to restrict movement.
• Legal Consequences:
  
  • Victims of false imprisonment may seek compensatory damages for any harm or distress suffered due to the confinement.

Question 52

3) Defamation (Economic Harm)

Answer 52

-Justified injury or a persons reputation. The unjustified comment can either be spoken (slander) or written (libel).
o Slander – saying anything that is not true
o Libel – writing something that is not true

-Only defamation if it’s not true

-Person who claimed to be defamed must show that they are suffering an economic harm

-99% if a person has been defamed, they want:
o Money Damages (compensation)
o Retraction of the defamation
o An apology

-In order to be defamation the untrue comment must take place in front of others
o if nobody is around it is simply an insult
o doesn’t damage reputation, therefore is pointless to sue

-The greater the medium (amount of people it reaches) the greater the damages if you can demonstrate the extent of how much it injures your reputation
o The more compensation you get
o Depends on how many people read it or heard it
o Today, with the internet, defamation can work its way around the world in a matter of seconds

Question 53

3) Defamation (Economic Harm) cont…

Answer 53

• Definition:
  
  • Defamation refers to the communication of false statements that harm the reputation of an individual or entity, leading to economic loss or damage.
• Key Elements:
  1) False Statements:
  
  • The statements must be false, misleading, or damaging to the reputation of the subject.
  2) Publication:
  - The false statements must be communicated to a third party, not just held privately.3) Harm to Reputation:
  - The defamation must result in economic harm or damage to the person’s reputation.
• Categories:
  
  • Defamation can be classified as either slander (spoken defamation) or libel (written or published defamation).
• Legal Consequences:
  
  • The victim of defamation may seek damages for economic losses, harm to reputation, and, in some cases, punitive damages.

Question 54

Defamation Cont…

Answer 54

• Definition:
  
  • Defamation involves making false and damaging statements about an individual or entity, resulting in justified injury to the person’s reputation. It can occur through spoken statements (slander) or written statements (libel).
• Characteristics:
  
  • Slander (Spoken): Making false and damaging spoken statements.
  • Libel (Written): Making false and damaging written statements.
• Requirement for Defamation:
  
  • The statement must be false to be considered defamation.
• Economic Harm Requirement:
  
  • The person claiming defamation must show that they are suffering economic harm as a result of the false statements.
• Common Remedies:
  
  • When someone claims defamation, common remedies sought are:
    
    • Money Damages (compensation).
    • Retraction of the defamation.
    • An apology.
• Public Nature of Defamation:
  
  • Defamation typically requires that the untrue comment takes place in front of others. If said in private with no witnesses, it may be considered an insult rather than defamation.
• Impact of Medium:
  
  • The greater the medium (number of people reached), the greater the potential damages. The extent of how much it injures reputation determines compensation.
• Modern Challenges:
  
  • With the internet, defamation can quickly spread globally, impacting reputation within seconds.

Question 55

Defenses of defamation:

Answer 55

• Truth (never defamation) – true statements
• Privilege
  o Absolute
  ▪ occurs “inside the house” (parliament of Canada – house of commons, legislation, court of law, an inquest, commission hearing)

o Qualified
▪ Honest mistake not done with malice
▪ i.e. a reporter or editorial writer cannot be sued for printing a wrong name, etc. as long as they honestly believe that it is a fair and honest depiction (he believed he is conveying the facts based on how he/she perceived them) then they are under privilege (can’t be under malicious intent)

Question 56

Defenses of Defamation cont…

Answer 56

• Truth (Substantial Truth):
  
  • Truth is an absolute defense against defamation. If the statement is substantially true, it may not be considered defamatory.
• Privilege:
  
  • Absolute Privilege:
    
    • Occurs in specific situations “inside the house,” such as Parliament, the House of Commons, legislative proceedings, court of law, inquest, or commission hearings.
  • Qualified Privilege:
    
    • Applies when statements are made honestly and without malice, even if there’s an honest mistake.
    • Example: A reporter or editorial writer cannot be sued for printing a wrong name, as long as they honestly believe it’s a fair and honest depiction based on their perception.

Defamation Elements:

Understanding the defenses is crucial in a defamation case, where the plaintiff must prove false statements, publication to a third party, harm, and fault (negligence or actual malice for public figures).
Malice Standard:

The malice standard is higher for public figures, requiring proof of “actual malice,” meaning knowing falsity or reckless disregard for the truth.
Public Interest and Freedom of Speech:

Privilege defenses often tie into the broader principles of protecting freedom of speech and ensuring public officials can perform their duties without fear of constant legal actions.

Question 57

4) Interferences with Land/Chattels

Answer 57

• Trespass – on a person’s property without consent
  o Entering upon or remaining upon a person’s property without his/her consent to be there
  o Owner is entitled to remove a trespasser with as much force as reasonably necessary
• Nuisance – interferences with the enjoyment of someone’s property (smoke, fumes, odor, noise, etc.)
• Conversion – wrongful taking or withholding another persons property.
  o Can take place by
  ▪ Theft/stealing
  ▪ Borrowed then refused to return
• Inducing Breach of Contract – where you enter a contract, and someone else comes along and induces me to break a lawful contract

*Passing Off – imitation of another product for your own gain. Make the person think they are buying the original product.

Question 58

Unintentional (Negligence)

Answer 58

Negligence
* Concerns all persons

• Happens when one person unintentionally causes injury to another (need to carry professional insurance for this liability)
• Case – Rylands vs. Fletcher (1860) **remember this
  o Fletcher owns large area of lad and builds a huge water reservoir
  o Rylands owns a coal mine on land beside Fletchers
  o Fletchers reservoir leaks and floods coal mine resulting in the closer of the coal mine
  o Who is at fault? Fletcher or the experts who designed and built the reservoir?
  ▪ RESULT: under strict liability, Fletcher was held liable even though he followed all the requirements. Rylands could only go after Fletcher for damages simply because it was his reservoir
• The law of strict liability was modified significantly but still exists today

Question 59

Negligence and Rylands vs. Fletcher Case

Answer 59

• Negligence:
  
  • Definition:
    
    • Negligence concerns all persons and occurs when one person unintentionally causes injury to another.
  • Professional Liability:
    
    • Individuals often need to carry professional insurance to cover liability arising from negligence.
• Rylands vs. Fletcher Case (1860):
  
  • Case Overview:
    
    • Fletcher owns a large area of land and builds a huge water reservoir.
    • Rylands owns a coal mine on land beside Fletcher’s.
    • Fletcher’s reservoir leaks and floods the coal mine, resulting in the closure of the mine.
  • Legal Question:
    
    • Who is at fault? Fletcher or the experts who designed and built the reservoir?
  • Result:
    
    • Under strict liability, Fletcher was held liable even though he followed all requirements. Rylands could only seek damages from Fletcher because it was his reservoir.

Strict Liability in Rylands vs. Fletcher:

The Rylands vs. Fletcher case established the principle of strict liability, where a person can be held responsible for damages caused by their activities, even if they took reasonable precautions.
Application of Strict Liability:

Strict liability often applies in cases where an individual engages in inherently dangerous activities, and any resulting harm leads to liability.
Negligence and Duty of Care:

Negligence cases often involve establishing a duty of care, a breach of that duty, causation, and damages suffered by the plaintiff.
Importance of Professional Insurance:

Professionals, such as doctors, lawyers, or engineers, commonly carry professional liability insurance to protect themselves in case of negligence claims.

Question 60

Strict Liability

Answer 60

Anyone storing or housing potentially dangerous or hazardous goods including animals is responsible regardless of fault for any damages cause by escape into others property
o EXAMPLE: If you raise pitbulls and they escape ad injure/kill someone you are considered liable. Even if you got a big steel gate and padlocks and did everything possible to prevent the dogs from getting out, you will still be considered liable

• Today, we must take reasonable care by our conduct not to harm others. If you are to have special expertise then take special care not to harm
• The law of strict liability was modified significantly but still exists today

Question 61

Strict Liability cont…

Answer 61

• Definition:
  
  • Strict liability is a legal doctrine where a person is held responsible for their actions or activities, regardless of their level of care or precautions taken.
• Key Features:
  
  • Liability is imposed without a finding of fault or negligence.
  • Applies to activities that are inherently dangerous or involve potential harm.
• Legal Principle:
  
  • Individuals engaging in certain activities may be held strictly liable for any resulting harm, even if they exercised reasonable care.
• Example:
  
  • In the Rylands vs. Fletcher case (1860), strict liability was applied when a reservoir owner was held responsible for flooding a neighboring coal mine, leading to closure.

Application of Strict Liability:
-Strict liability is often applied in cases involving dangerous activities or products where the potential for harm is high.

Inherently Dangerous Activities:
-Activities with a high risk of harm, such as storing hazardous materials or conducting ultrahazardous operations, may trigger strict liability.

Question 62

CASE: DONOHUE VS. STEVENSON (1932) [United Kingdom]

Answer 62

• Went to the highest court in the UK (English House of Lords – bound to Canadian Law)

□ Facts:
* Manufacturer of a ginger beer product (contractual agreement) sold to a retailer (contractual agreement) sold to a purchaser (contractual agreement) and the purchaser gave it to a lady friend (not a contractual agreement, becomes the consumer, but is the not purchaser)

• She became violently ill (there was a dead snail in the ginger beer) and wanted compensation
• The purchaser could go after the retailer, retailer could go after the manufacturer, however the consumer could not go after the purchaser
  o Not contractual so she couldn’t sue the retailer (purchaser had the right to sue)
• Court wanted to reward damages to her and change law so her rights would be recognized
• Person that is not a party to a contract has no rights or obligation to it
• Love thy neighbor doctrine
• Neigbour- anyone within reasonable contemplation

□ Conclusion: Right to damages went no farther than the purchaser

**know names, most important case of negligence

Question 63

DONOHUE VS. STEVENSON

Answer 63

Legal Case:
- Donohue vs. Stevenson (1932) [United Kingdom]

Facts:
- The case reached the highest court in the UK, the English House of Lords (considered binding in Canadian law).
- Chain of transactions: Manufacturer to retailer (contractual), retailer to purchaser (contractual), purchaser to consumer (not contractual).

Incident:
- A dead snail was found in a ginger beer product, leading the consumer to become violently ill.

Legal Issue:
- The consumer sought compensation, but the absence of a contractual relationship raised questions about her right to sue.

Legal Principle:
- Persons not party to a contract traditionally have no rights or obligations to it.

Court Rationale:
- The court wanted to recognize the consumer’s rights and change the law to award damages to her.
- Introduction of the “Love thy neighbor” doctrine.

Love Thy Neighbor Doctrine:
- Neighbor defined as anyone within reasonable contemplation.

Conclusion:
- The court ruled that the right to damages extended no farther than the purchaser in the contractual chain.

Legal Precedent Impact:
-Donohue vs. Stevenson is a landmark case in the development of the duty of care concept in tort law, especially in negligence.

Expansion of Liability:
-The case marked a shift toward recognizing the duty of care owed not only to contractual parties but also to foreseeable individuals who might be affected.

Neighbour Principle in Tort Law:
-The “Love thy neighbor” doctrine broadened the scope of liability, emphasizing a duty to avoid actions that could harm anyone within reasonable contemplation.

Modern Influence:
-The case has had a lasting impact on tort law, influencing subsequent judgments and discussions on duty of care and negligence.

Question 64

4 Elements of Negligence (4 things that must be picked out from love thy neighbour doctrine, must be there for negligence)

Answer 64

1) Was the duty of care owed? Is that person my neighbor (should a reasonable person have them in contemplation)?

2) What was the standard of care required? If meet the standard then it is not negligence (every area has a standard to measure against)

3) Has there been a breach of standard?

4) Is there legal causation/connection?

Question 65

Elements of Negligence

Answer 65

1. Duty of Care:
   
   • The defendant must owe a duty of care to the plaintiff, recognizing a legal obligation to avoid causing harm.
2. Breach of Duty:
   
   • There must be a breach of the duty of care, where the defendant fails to meet the standard of care expected in the circumstances.
3. Causation:
   
   • There must be a direct link between the defendant’s breach of duty and the harm suffered by the plaintiff.
4. Damages:
   
   • The plaintiff must experience actual harm or damages as a result of the defendant’s breach of duty.

Derived from “Love Thy Neighbour” Doctrine:
- The four elements of negligence are essential components derived from the “Love Thy Neighbour” doctrine, emphasizing the duty of care owed to others to avoid foreseeable harm.

Duty of Care in “Love Thy Neighbour”:
-The “Love Thy Neighbour” doctrine laid the groundwork for recognizing a general duty of care owed by individuals to those who might foreseeably be affected by their actions.

Evolution of Negligence Elements:
-The four elements have evolved from legal precedents like Donohue vs. Stevenson, shaping the modern understanding of negligence in tort law.

Significance of Causation:
-Causation is a critical element, requiring a clear connection between the defendant’s actions and the harm suffered by the plaintiff.

Role of Damages:
-Damages are crucial for a successful negligence claim, indicating the tangible harm suffered by the plaintiff as a result of the defendant’s breach of duty.

Question 66

1) Was the duty of care owed? Is that person my neighbour (should a reasonable person have them in contemplation)?

Answer 66

• All persons who are s closely and directed by my act that I must reasonably have them in my contemplation.
• The term foreseeable is used to describe the limit (was that a foreseeable act? Was that a foreseeable victim?
• Example: Man gets hit by a baseball knocked out of the park. Was he under the duty of care?
  o No, because it was too remote (it hasn’t happened in 30 yrs), no not within reasonable contemplation no within reason
• It is reasonable that a person can be affected by a gory situation.
• People that are told about gory scenes, no duty of care is owed.
• Ex. Motorcycle accident -gruesome accident, lady went into shock and lost child, sues the truck driver- is he liable? Court held- this was a for seeable victim and was given damages (people see gory incident can sue, not if hear about it)
• Ex. Girl died at Dalhousie university after drinking too much (threw up and passed out, someone called school medics told to monitor breathing, in morning stopped breathing called 911- sued school b/c it was residence -thought they should monitor better, sued 3 medics and 4 students 
• If yes (duty of care is owed) move onto the next one 2)

Question 67

Duty of care owed

Answer 67

1) Was the duty of care owed?
- Further Analysis: Considering the Foreseeability Principle.

Foreseeability Principle:
- Definition:
- All persons who are so closely and directly affected by my actions that I must reasonably have them in my contemplation fall within the scope of duty of care.

Limit - Foreseeability:
- Use of Term:
- “Foreseeable” describes the limit of duty, questioning whether the act or the potential victim was reasonably foreseeable.

Example - Baseball Accident:
- Scenario:
- A man gets hit by a baseball knocked out of the park.

• Assessment:
  
  • No duty of care is owed if the incident is too remote and not within reasonable contemplation.

Reasonable Contemplation:
- Gory Situations:
- It is reasonable that a person can be affected by gory situations, but those merely told about gory scenes do not trigger a duty of care.

Case Examples:
- Gruesome Motorcycle Accident:
- If a person witnesses a gruesome accident and goes into shock, resulting in harm, the court may consider it a foreseeable event, and damages could be awarded.

• University Student’s Death:
  
  • In cases like a university student’s death due to excessive drinking, the foreseeability of potential harm is crucial in determining whether a duty of care is owed.

Question 68

Duty cont…

Answer 68

Foreseeability in Legal Context:
-Foreseeability is a key element in assessing duty of care and determining the boundaries of legal responsibility.

Remoteness and Foreseeability:
-Courts often consider whether an event is too remote or unforeseeable to establish a duty of care.

Practical Application:
-The foreseeability principle guides courts in distinguishing between situations where a duty of care is owed and those where it is not.

Legal Precedents:
-Various legal cases, such as accidents and university incidents, exemplify the application of the foreseeability principle in duty of care assessments.

Question 69

2) What was the standard of care required? If meet the standard then it is not negligence (every area has a standard to measure against)

Answer 69

• The law recognizes that every activity has a standard of care when you are measured against to make sure not to harm others (common sense, standards in the industry, common law precedence, legislation) -look at statute
• Standard= what is reasonable
• A balance between safety and concern for others and not making our activity such that is becomes restrictive and prohibits us and our ability to conduct ourselves in whatever field we are operating in
• The more dangerous the activity the higher the standard of care required (vice versa – less = lower)
• If a person professes to be a specialist the law raises the standards they have to meet (e.g. medical specialist expected to have a higher standard than a family physician)- to hold to a higher standard would be unreasonable
• Up to the court to decide the amount of standard of care required.

Question 70

Standard

Answer 70

2) What was the standard of care required?
- Legal Consideration: Evaluating the standard of care to determine negligence.

Key Points:
- Every Activity Has a Standard:
- The law recognizes that each activity has a standard of care against which individuals are measured to ensure the prevention of harm to others.

• Factors Influencing Standard:
  
  • Standards may be derived from common sense, industry norms, common law precedents, and legislative requirements (statutes).
• Reasonableness:
  
  • The standard of care is often defined as what is reasonable in the circumstances, striking a balance between safety, consideration for others, and avoiding undue restrictions on activities.
• Activity-Specific Standards:
  
  • The level of danger associated with an activity determines the required standard of care. More dangerous activities demand a higher standard, while less risky ones may have a lower standard.
• Specialist Professions:
  
  • Individuals professing to be specialists may be held to a higher standard, reflecting their expertise. However, this higher standard must remain reasonable and not excessively restrictive.
• Court Determination:
  
  • Courts decide the appropriate standard of care based on the nature of the activity and relevant circumstances.

Question 71

3) Has there been a breach of standard?

Answer 71

• In order to determine this we look to the manner of your activity
• If it falls short of the standard, then it is considered negligent
  o If above/meets the standard, then it is okay
• Need to balance between safety/concern for others and function of society
  o Do not want to make activities so restrictive that prohibits society from functioning

-product liability, negligence tort - manufacturers have a legal responsibly to users aware of the risks associated wot the use and misuse of the products especially chemicals, tools, pharmacological , tobacco

-continual warning- on market and discover new danger -must alert/send learnid intermediary -continuing liability
-ex. Silicon implants did not get warning -can sue

Question 72

Breach of Standard of Care - Determining Negligence

Answer 72

3) Has there been a breach of standard?
- Analyzing the manner of activity to establish negligence.

Assessment Criteria:
- Standard Evaluation:
- Evaluate the activity to ascertain if it falls short of the recognized standard of care.

• Breach Determination:
  
  • A breach occurs if the activity fails to meet the standard. If it meets or surpasses the standard, it is considered acceptable.

Balancing Act:
- Safety vs. Function of Society:
- The assessment involves striking a balance between safety, concern for others, and the smooth functioning of society. Restricting activities excessively could hinder societal functions.

Product Liability and Negligence:
- Legal Responsibility:
- Manufacturers bear legal responsibility to make users aware of risks associated with the use and misuse of products, especially those involving chemicals, tools, pharmacological items, or tobacco.

Continual Warning Obligation:
- Ongoing Duty:
- Manufacturers must provide continual warnings, especially when new dangers are discovered in the market. The duty extends to alerting learned intermediaries to ensure ongoing liability.

Example - Silicone Implants:
- Legal Ramifications:
- In cases like silicone implants where warnings were lacking, individuals may have legal grounds to sue based on negligence, emphasizing the importance of continuous risk communication.

Question 73

4) Is there legal causation/connection?

Answer 73

Establish injury is a result of offending activity
* But For Test
o Legal connections between

• “Novus Actus Interveniens” – means an intervening act that may caused the injury.
  o Ex. Eating/texting while driving (the intervening act that caused damages) and you hit someone, you are liable
  o If greater injury is caused by another person (such as an ambulance driver treating the patient poorly), this new intervening act breaks the chain of causation, therefore you would only be liable for the original damages you caused
• Thin Skull Rule – must take your victim as you find him or her
  o You are fully responsible for damages regardless of how the act would affect on average person.
  o i.e. Hitting someone with weak bones from another accident
  o Take the person ‘as is’
• Res Ispa Loquitur – “The Thing Speaks for Itself”
  o Do not have to prove negligence (obvious)
  o The cause is in the exclusive care of the defendant

Question 74

Legal Causation

Answer 74

4) Is there legal causation/connection?
- Establishing the injury as a result of the offending activity.

Key Considerations:
- But For Test:
- Assessing whether the injury would have occurred “but for” the defendant’s actions, establishing a direct connection.

Legal Concepts:
-Novus Actus Interveniens:
- Definition:
- An intervening act that may have caused the injury. Example: Eating or texting while driving can be an intervening act leading to liability.

• Clarification:
  
  • If a greater injury is caused by another person (e.g., an ambulance driver treating the patient poorly), this new intervening act breaks the chain of causation, and the original offender is liable only for the damages they caused.
• Thin Skull Rule:
  
  • Principle:
    
    • The offender must take the victim “as is,” assuming full responsibility for damages regardless of how the act would affect an average person.
  • Example:
    
    • If someone with weak bones from a previous accident is hit, the offender is responsible for the resulting damages, accepting the victim’s condition as it is.
• Res Ipsa Loquitur:
  
  • Translation:
    
    • “The Thing Speaks for Itself.”
  • Application:
    
    • In cases where negligence is obvious, this legal principle allows for the assumption of negligence without the need for direct proof. The cause is considered to be in the exclusive care of the defendant.

Question 75

Legal cont…

Answer 75

But For Test:
-The “but for” test is a fundamental component of legal causation, determining the direct connection between the defendant’s actions and the resulting injury.

Intervening Acts and Liability:
-Novus Actus Interveniens introduces the concept of intervening acts, and their impact on liability depends on the extent of the new injury caused.

Thin Skull Rule in Legal Doctrine:
-The Thin Skull Rule underscores the legal doctrine that the offender must accept the victim’s condition as it is, without consideration of how the act would affect an average person.

Res Ipsa Loquitur Simplifies Proof:
-Res Ipsa Loquitur streamlines the burden of proof in cases where negligence is evident, allowing for the assumption of negligence based on the circumstances.

Question 76

Defenses of negligence

Answer 76

1) Didn’t prove or establish all 4 elements of negligence requirements

2) Volenti non fit injuria (Volens) – he who volunteers cannot claim injury

3) Contributory Negligence (Contributory Negligence Act) – claim injured person is partially responsible for their own injury (i.e. 25% reduction in claim for not wearing seatbelt)

4) Statute of limitations (statute barred) – you cannot sit on your rights forever. Every claim for negligence has a time period.

Question 77

Defenses

Answer 77

Defenses of Negligence:
- Legal strategies used to counter allegations of negligence.

Specific Defenses:
1. Failure to Prove All Elements:
- Explanation:
- Challenging the plaintiff’s inability to establish all four elements required for a negligence claim.

2. Volenti Non Fit Injuria (Volens):
   
   • Definition:
     
     • Asserts that a person who willingly exposes themselves to a known risk cannot claim injury.
3. Contributory Negligence:
   
   • Definition:
     
     • Alleges that the injured person bears partial responsibility for their injury.
     • Example: A 25% reduction in the claim for not wearing a seatbelt.
4. Statute of Limitations (Statute Barred):
   
   • Principle:
     
     • Asserts that legal claims for negligence must be initiated within a specified time period.
     • Impact: Failure to file within this timeframe may bar the claim.

Legal Considerations:
- The effectiveness of these defenses depends on the presentation of evidence and legal arguments during the proceedings.

Failure to Prove All Elements:
-Defendants may challenge negligence claims by asserting that the plaintiff failed to prove essential elements required for a successful case.

Volenti Non Fit Injuria Significance:
-The defense of volenti non fit injuria is based on the principle that individuals who willingly assume known risks cannot later claim injury.

Contributory Negligence Act:
-Legal frameworks like the Contributory Negligence Act address situations where the injured person shares responsibility for their own harm.

Statute of Limitations Importance:
-The statute of limitations places a temporal restriction on when legal proceedings for negligence claims can be initiated, emphasizing the importance of timely filing.

Question 78

Occupiers Liability

Answer 78

• Occupier – someone that owns the land
• Trespasser – unlawful/uninvited visitor
• Licensee – social visitor, permitted to be on the premises
• Invitee – business visitor, authorized to enter the premises
• Deals with the liability of the land owner/occupiers of people who come onto land and are injured
• Duty of care owed to everyone who comes on land lawfully
  o If not lawfully on land (trespasser) the duty of care is limited (but still there)
  o Standard of care is nowhere near for trespasser as it is for a licensee or invitee
• How much does the occupier owe?
  o Depends on the nature of the visit
• If your asked to leave a place and refuse you are considered a trespasser.

Answer 79

*Legal Considerations:**
- Duty of Care:
- Owed to all individuals lawfully present on the land.

• Trespasser’s Duty of Care:
  
  • While limited, occupiers still owe a duty of care even to trespassers, albeit at a reduced standard.
• Standard of Care Variation:
  
  • The standard of care varies based on the visitor’s classification (trespasser, licensee, or invitee).
• Nature of the Visit:
  
  • The owed duty of care is influenced by the purpose and nature of the visit.
• Occupier’s Liability Factors:
  
  • Duty of care owed is contingent on the circumstances, emphasizing the importance of lawful presence on the premises.
• Refusal to Leave:
  
  • Individuals asked to leave a place but refuse may be considered trespassers, affecting the duty of care owed to them.

Question 80

1) Trespasser (Unlawful Visitor)

Answer 80

• If a trespasser is injured as a result of your negligence, you are not considered liable
  o They cannot claim damages against you
• Then what is your duty of care?
  o The occupier cannot deliberately set a trap as to cause injury
  o i.e. setting a trap for graffiti artists, etc.
• Electronic fences and guard dogs are not considered traps in the eyes of the law
• Amount of property protection a trespasser receives depends on the nature of the visit
  o This sets the standard of care
  o Property Protection – strict guidelines
• The moment you ask someone to leave and they refuse, they have become a trespasser and you have the right to remove them from your property
  o You cannot use excessive force to remove them or else you will be liable for damages

*If children come on your property and are injured then you are liable, even if they were trespassing
o Attractive Nuisance – having something like an abandoned fridge, oven, swimming pool, etc. that may attract children to your yard/property
o The law requires you must take reasonable steps to not attract the children to these in your yard

• Trespassing can be a criminal offence
  o Day means the period between 6am and 9pm the same day.
  o Night – 9pm till 6am the next day.

Question 81

Trespasser Cont…

Answer 81

Trespasser Liability:
- Addressing the legal aspects of injuries sustained by trespassers on a property.

Duty of Care to Trespassers:
- Limited duty of care, but occupiers must not intentionally set traps causing harm.

Key Points:
1. Negligence and Trespassers:
- Occupiers are not considered liable if a trespasser is injured due to their negligence.
- Trespassers cannot typically claim damages against the occupier.

2. Deliberate Traps:
   
   • Occupiers cannot intentionally set traps to cause harm to trespassers.
   • Examples include electronic fences and guard dogs, which are not considered traps.
3. Property Protection Standards:
   
   • The level of property protection for trespassers depends on the nature of their visit, setting the standard of care.
4. Right to Remove Trespassers:
   
   • Occupiers have the right to ask trespassers to leave and can remove them, but excessive force leading to injury may result in liability.
5. Liability for Injured Children:
   
   • If children are injured while trespassing, the occupier may be liable, especially if the property has attractive nuisances.
   • Attractive Nuisance: Features that may attract children, requiring reasonable steps to prevent harm.
6. Criminal Offense and Trespassing:
   
   • Trespassing can be a criminal offense, with distinctions between day and night hours (6am to 9pm and 9pm to 6am).

Attractive Nuisance Doctrine:
-The attractive nuisance doctrine holds property owners responsible for potential harm to children caused by attractive features on their property.

Responsibility for Child Safety:
-Occupiers are obligated to take reasonable steps to ensure the safety of children, even if they are trespassing.

Criminal Trespassing:
-Trespassing may constitute a criminal offense, with specific definitions for day and night hours.

Question 82

2) Licensee (Social Visitor)

Answer 82

• Comes onto property for a social gathering with your consent.
  o Ex: people that are on the path to school
  o Door to door sales people (unless you have posted a note that prohibits solicitors/makes them not welcome)
• Consent can be expressed or implied
• The occupier must warn a visitors of the dangers the occupier knows about.
  o Ex. Icy driveway or steps.

Licensee (Social Visitor):
- Refers to individuals who enter a property for social reasons with the occupier’s consent.

Characteristics:
1. Purpose of Visit:
- Licensees enter the property for social gatherings or with the occupier’s consent.

2. Examples:
   
   • Path to school pedestrians, door-to-door salespeople (unless restricted by posted notices).
3. Consent Types:
   
   • Consent for licensee visits can be expressed or implied.
4. Occupier’s Duty:
   
   • The occupier is obligated to warn licensees about known dangers on the property.
5. Examples of Warnings:
   
   • Examples include warning about icy driveways or steps that may pose a danger.
6. Consent Impact:
   
   • The licensee’s presence is based on the occupier’s consent, expressed or implied.

Question 83

3) Invitee (Business visitors)

Answer 83

• The highest standard is owed to the invitee
• This is because the person that comes to your business or your home which you carry on your property – want to make a profit
• The occupier is responsible for any known dangers or any dangers you ought to know about that can be ascertained from a reasonable inspection of the premises.
  o If the occupier fails to make responsible inspection, they could be considered liable.

Invitee (Business Visitor):
- Refers to individuals invited onto a property for business purposes, entailing the highest standard of care.

Characteristics:
1. Highest Standard of Care:
- Invitees receive the highest standard of care among the categories of visitors.

2. Purpose of Visit:
   
   • Business visitors, such as individuals coming to a business or home for profit-related activities.
3. Occupier’s Responsibility:
   
   • The occupier is responsible for known dangers and those discoverable through reasonable premises inspection.
4. Premises Inspection:
   
   • Failure to conduct a responsible inspection may lead to liability for the occupier.
5. Standard of Care:
   
   • The standard of care owed to invitees is based on the expectation of business-related activities and safety.
6. Liability for Known Dangers:
   
   • Occupiers are liable for any known dangers or those they ought to know about through reasonable inspection.

Question 84

Vicarious Liability

Answer 84

• Extension in the negligence law of liability beyond the original wrong doer
• One person controls the activity of another to such an extent that the act of one may be attributed to the other
• Ex: an employer is usually considered to be vicariously liable for the torts of the firm’s employees, provided that the torts are committed by the employees in the course of the employer’s business
• Similarly, all partners in a partnership are vicariously liable for the torts committed by a partner in the conduct of partnership business
• Provincial statute law has imposed a vicarious liability on the owner of a motor vehicle, when the driver of the vehicle is negligent in its operation

Question 85

Contributory Negligence Act

Answer 85

• A person who is being sued claims that the plaintiff is partially responsible for own injuries caused.
• If you are in an accident and you were not wearing your seatbelt you would be held as a contributor to your accident injuries.
• If the courts find this, they will figure out the percentage of negligence.

Question 86

Statute of Limitations

Answer 86

• If someone has a claim against another person you only have certain amount of time to take action against that person.
• Usually have 2 years

Question 87

Host Liability

Answer 87

• New area of law developing
• Social or business host – people that you invite to your home/business
• Ex: If you allow this person to leave your house under the influence of alcohol and they hurt someone else by operating a motor vehicle under that influence, that person is allowed to sue him and you as well
  o Why did you not prevent the person from operating a motor vehicle?
  o Also applicable to commercial hostess (such as a bar), they have responsibility to cut you off and/or take your keys

▪ Establishment can also be sued for that person’s wrongdoings relating to alcohol consumption
* Duty of care owed to that person and that duty extends to see that person gets home safe
* If you don’t know the condition of the person – law asks should you ought to have known?

Question 88

Host cont…

Answer 88

Host Liability:
- An evolving area of law pertaining to the liability of social or business hosts for the actions of their guests.

Characteristics:
1. Social or Business Hosts:
- Encompasses individuals hosting social gatherings or businesses hosting events.

2. Example Scenario:
   
   • If a guest leaves the host’s premises under the influence and causes harm, both the guest and host may face legal repercussions.
3. Responsibility for Guests:
   
   • Hosts may be held responsible for preventing guests from engaging in dangerous activities, such as driving under the influence.
4. Applicability to Commercial Hosts:
   
   • Commercial establishments, like bars, can also face liability for allowing intoxicated individuals to cause harm.
5. Duty of Care:
   
   • Hosts owe a duty of care to their guests, including ensuring their safety and well-being.
6. Preventing Harm:
   
   • Hosts may be expected to take measures to prevent harm, such as cutting off intoxicated guests or arranging alternative transportation.
7. Knowledge Consideration:
   
   • The law evaluates whether hosts should have known about the condition of their guests and taken appropriate actions.

Question 89

Will

Answer 89

• Document that provides the administration of ones estate upon death.- tell xecute how you want your assets and remains dealt with (has no meaning at all until dealth)
• Can have many wills but the last will is the one that governs and is meaningful (important to date wills).- can change as many times as want
• A will “speaks from death”, therefore a will is a meaningless document until the person dies
• A person is the wealthier the day they die than the day before (insurance, accident, etc.)
• All assets are called estates when die- gross asset = value of assets are determined in dollars before deduction for debt, net estate= value of estate after deduction of debt
• No will the state/government comes along and imposes a will
• Estate- who gets what /how distributed
• If have will- makes it easier/cheaper – executor can do things (chose investments, deal with trust funds/borrowing of money/trade assets)
• Important to have a will

Question 90

Who can make out a will?

Answer 90

o Two requirements:
▪ Have to be 18 years or older
▪ Must be in “compos mentis” meaning “a good mind set”, implying that you knew what you are doing while you were making the will. (“off full mind”- if not cant make a will)

 Lucid Interval: time that an ill person can make a
valid will (Ex. In the Morning when they are more component)
* If person is non compos mentis, then they are unable to make a
will.

• If you in active service (military) and are under age you can make out a valid will.
• Marriage can void a will.
  o Divorce nullifies a will
  o If the will is made in “contemplation of marriage”, which means that one refers to a specific marriage that is going to take place (time, place, etc.).
  o Look for lucid interval (usually in the morning) – if have dementia —have doctor or nurses note saying they were compus mentus (understand signing documented direction distribution

Question 91

Will Cont…

Answer 91

Will:
- A legal document that outlines the administration of one’s estate after death, specifying the distribution of assets and handling of remains.

Key Points:
1. Last Will Prevails:
- The last will created is the one that governs and holds significance. It is crucial to date wills to ensure the latest version is followed.

2. Speaks From Death:
   
   • A will is meaningless until the person’s death, as it “speaks from death.”
3. Estate Assets:
   
   • Upon death, all assets are considered part of the estate. Gross assets reflect their value before debt deduction, while net estate values assets after debt deduction.
4. State Imposed Will:
   
   • In the absence of a will, the state may impose one, determining how assets are distributed.
5. Executor’s Role:
   
   • Having a will facilitates the executor’s tasks, allowing them to handle investments, manage trust funds, borrow money, and trade assets.
6. Requirements to Make a Will:
   
   • a. Age: Must be 18 years or older.
   • b. Mental Capacity: Must be in “compos mentis,” indicating a sound state of mind during the will’s creation.
7. Lucid Interval:
   
   • Refers to a period when an individual, even if generally unwell, is mentally competent to make a valid will. Important for cases of illness or dementia.
8. Exceptions for Valid Wills:
   
   • a. Active Military Service: Allows those under 18 in active military service to create a valid will.
   • b. Marriage and Divorce: Marriage may void a will, and divorce nullifies an existing will. However, a will made in contemplation of marriage is an exception.
9. Documentation for Mental State:
   
   • In cases of potential mental incapacity, having a doctor’s or nurse’s note confirming compos mentis during the will’s signing can be crucial.

Question 92

Willis Act

Answer 92

▪ Anyone can make up a will, there are just two requirements:
□ 1) You must be 18+ years of age
□ 2) You must be of compos mentis – of a sound mind

▪ If you don’t know what you are doing then you would be considered as non compos mentis – not of sound/full mind

1. Lucid Interval – time period when the mind is clear (if you have Alzheimer’s and have a lucid interval then you could write a will then)
   ▪ If you are in the military and are to enter into active service under the age of 18, then you are allowed to make a will (exception to the age rule)
   ▪ If you are single and make a will and put it away and forget about it, it will become void when you get married (Marriage voids a will as well as divorce will void a will)
2. Also applies to spousal relationships (common law, etc.)

Question 93

Act Cont…

Answer 93

Willis Act:
- The Willis Act establishes that anyone can create a will, provided they meet two essential requirements.

Key Requirements:
1. Age Requirement:
- Must be 18 years of age or older to create a valid will.

2. Compos Mentis (Sound Mind):
   
   • The individual must be of sound mind and fully aware of their actions while creating the will.

Exceptions and Considerations:
Lucid Interval:
- Refers to a clear time period when an individual, even with conditions like Alzheimer’s, is mentally competent to create a will.

• Military Exception:
  
  • Individuals entering active military service under the age of 18 are allowed to create a will, making an exception to the age requirement.
• Marriage and Voidance:
  
  • Creating a will while single and subsequently getting married renders the will void. This principle applies to various spousal relationships, including common-law unions.
• Divorce and Will Voidance:
  
  • Similar to marriage, getting a divorce nullifies a previously created will.

Question 94

Two types of Wills:

Answer 94

1) Holograph
2) Formal

Question 95

Holograph Will

Answer 95

• One which is wholly in the handwriting of the testator(male) and signed by him.
• Just as good as legal
• Use the simplest language possible
• Any other writing at all on the paper besides the individuals own handwriting will void the will, no fancy words – has to be on blank
• Write this is “I blank” want/request this… sign it
  o E.g., farmer who wrote dying will on tractor fender
  o E.g., guy in hotel wrote on hotel note pad- but didn’t count b/c there was other writing o. it

Question 96

Holograph cont…

Answer 96

Holograph Will:
- A holograph will is one that is entirely handwritten by the testator (male) and signed by them.

Key Characteristics:
1. Handwritten by Testator:
- The entire content of the will must be in the handwriting of the person creating it.

2. Signature Requirement:
   
   • The will must be signed by the testator to be considered legally valid.
3. Simplicity is Crucial:
   
   • The use of simple language is encouraged in holograph wills.
4. Avoid Additional Writing:
   
   • Any additional writing, aside from the testator’s own handwriting, on the paper can void the will.

Creation Process:
- The testator should express their wishes clearly and directly in their own handwriting.

Examples:
- Tractor Fender Will:
- An example includes a farmer who wrote his dying will on a tractor fender in his own handwriting.

• Hotel Notepad Issue:
  
  • A will written on a hotel notepad might be deemed invalid if there is additional writing on the same paper.

Question 97

Formal Will

Answer 97

• In writing (handwritten, typed, lazar written) and signed by testator in the presence of two or more other witnesses and the witnesses must sign too (must all be together/presence). – doesn’t have to be in English
• The three witnesses must be in each others presence when signing or it will be considered invalid.
• A witness cannot be a beneficiary (one who receives a gift under a will) or a spouse to a will unless they can demonstrate that they didn’t exert undue influence on the testator to name them in the will.
• Will continues even after married
• Divorce nullifies a will
• Have 2 years after death to make valid claim if just married

□ If person under age of 18 but legally married, they can make a valid will, or if they are in active military service will also have a valid will
□ If witness to will and also beneficiary – they are voided as beneficiary
□ (Fear of coercion/influence testate)
□ -witness cannot be a beneficiary – today changed law if witness is named as beneficiary they can go to court and convince judge did not exercise any undue influence – could then inherit

Question 98

Formal Cont…

Answer 98

Formal Will:
- A formal will is a written document (handwritten, typed, or laser-written) signed by the testator in the presence of two or more witnesses, and these witnesses must also sign the will in the presence of each other.

Key Characteristics:
1. In Writing:
- Can be handwritten, typed, or laser-written.

2. Signatures:
   
   • Must be signed by the testator.
3. Witness Requirement:
   
   • Requires the presence of two or more witnesses when the testator signs the will.
4. Witness Signatures:
   
   • Witnesses must sign the will in each other’s presence.
5. Language Flexibility:
   
   • The will can be in a language other than English.

Witness Limitations:
- Witnesses cannot be beneficiaries (receivers of gifts in the will) or spouses to the will, unless they can prove they didn’t exert undue influence on the testator.

Continuation After Marriage:
- A will remains valid even after the testator gets married.

Impact of Divorce:
- Divorce nullifies a will, rendering it void.

Time Limit for Claims:
- If just married, there is a two-year window after death to make a valid claim.

Special Cases:
- If a person is under 18 but legally married, or in active military service, they can make a valid will.

Witness-Beneficiary Conflict:
- If a witness to the will is also named as a beneficiary, they are voided as a beneficiary.

Fear of Coercion/Undue Influence:
- Historically, a witness who is a beneficiary was presumed to be influenced by the testator. Modern laws allow witnesses to contest this presumption and inherit if they can prove no undue influence.

Important Note:
- The interaction between witnesses and beneficiaries is carefully scrutinized to prevent coercion or undue influence.

Question 99

Making up a Will

Answer 99

The last will of me JB made this 28th day of Nov/17
□ - Executor/trices (Who gets to administer the estate)

• Quite often the wife names the husband or vice-versa.
  □ - Power: unlimited desecration (full power to decide to what to do with estate), limited
  □ - Pay just debts
  □ Guardians of children (Who will look after the kids, if something happens to parents). Children under the age of 18 cannot inherit.
• Funeral (What do you want done with your remains, Ex. Burial, Cremation)
• Distribution (Who gets what)

Question 100

Making up Will cont…

Answer 100

Requirements:
1. Age:
- Must be 18 years or older.

2. Compos Mentis:
   
   • Must be of sound mind, understanding the implications of the will.
3. Lucid Interval:
   
   • Refers to a clear and rational period when an individual with a mental condition like Alzheimer’s can make a valid will.
4. Military Exception:
   
   • Individuals under 18 entering active military service can make a valid will.
5. Marital Status:
   
   • Marriage can void a will. Divorce nullifies a will. If a will is made in contemplation of marriage, it may be affected by subsequent events.

Types of Wills:

1. Holograph Will:
   
   • Wholly in the handwriting of the testator (maker of the will) and signed by them.
   • Must use simple language and avoid any other writing on the paper.
2. Formal Will:
   
   • In writing (handwritten, typed, or laser-written) and signed by the testator in the presence of two or more witnesses.
   • Witnesses must sign the will in each other’s presence.

Significance:
- A will “speaks from death,” meaning it only becomes meaningful upon the death of the testator.

*Importance of Updating:
- The last will is the one that governs, emphasizing the need to review and update the will after significant life events.

*Legal Impact:
- Without a will, the state may impose a will on the deceased’s estate.

*Consideration for Witnesses:
- Witnesses must not be beneficiaries or spouses unless they can prove no undue influence.

*Language Flexibility:
- Wills can be in languages other than English, recognizing the diverse linguistic landscape.

*Reminder:
- Creating a will is crucial for determining how assets are distributed and addressing other important matters upon one’s death.

Question 101

What should be in will:

Answer 101

-name of executor, power, allocate for payment of debts, guardians, burial (what do you want done with your remains), distribution

-This is my last will of me “ “ made the 5th day of December 2023

-I hearby appoint my son John and daughter Mary to be the Executor of this my will

-Power- limit (can limit how much/what they can do- e.g., not invest it, or not sell the farm)/uncontrolled discretion
-Guardians (god parents) ?

-remains ? (executor named in the will has legal right to where the remains go)- even if married- executor decides

-distribution of assets (will is persons last wishes) – will the law always distribute assets as in the will – Answer is always maybe yes and maybe no

-will should be read immediately after death

Question 102

Testate

Answer 102

a person that dies with a valid will

Question 103

Intestate

Answer 103

a person that dies with no will or an invalid will

Question 104

Testator

Answer 104

a man who writes a valid will

Question 105

Testatrix

Answer 105

a female who writes a valid will

Question 106

Executor

Answer 106

a chosen male who is named in the will to administer the estate (or deceased person)

Question 107

Executrix

Answer 107

a chosen female who is named in the will to administer the estate.
-all must act in good faith

Question 108

Executors

Answer 108

two or more males (administer the estate)- also if male and female

Question 109

Executrices

Answer 109

two or more females (administer the estate)

Question 110

Administrator

Answer 110

a person named by the court to be the administer of the estate. – the person dies intestate

□ Administrator- men, administrix- women

Question 111

Will Annexed

Answer 111

Definition:
- Refers to a type of probate where the will is attached to the grant of probate or letters of administration.

Key Characteristics:
- The actual will document becomes an integral part of the grant, providing a clear record of the deceased’s intentions.

Question 112

Beneficiary

Answer 112

• A person or entity chosen to receive assets or benefits from a will, trust, or insurance policy.
• Types:
  
  • Primary: First in line to receive.
  • Contingent: Inherits if the primary can’t.
• Designation:
  
  • Specified by the person creating the legal document.
• Roles:
  
  • Entitled to assets as per the document’s terms.
• Changes:
  
  • Can be updated by the document creator.
• Importance:
  
  • Crucial for effective estate planning.
• Considerations:
  
  • Tax implications and legal protections matter.

Question 113

Devise

Answer 113

o A person receives a gift of real property from will

• Legal term related to real property in a will.
• Definition:
  
  • A gift or transfer of real estate through a will.
• Usage:
  
  • Refers specifically to real property, not personal property.
• Example:
  
  • “I devise my house to my daughter.”
• Contrast:
  
  • Differs from “bequest” which relates to personal property.

Bequest= giving of a gift

Question 114

Legacy

Answer 114

o A person that receives a gift of personal property

• Legal term associated with personal property in a will.
• Definition:
  
  • A gift or transfer of personal property through a will.
• Usage:
  
  • Relates specifically to movable possessions or assets.
• Example:
  
  • “I leave my jewelry collection as a legacy to my niece.”
• Contrast:
  
  • Contrasts with “devise,” which pertains to real property.

Question 115

Codicil

Answer 115

• An addition to a will (similar to a “P.S.” in a letter)
• Made will and decided want to donate $5000 to uni hospital – instead of re doing whole will just add it – don’t same way as will (have witnesses or in own handwriting -holograph)
• Legal term associated with wills and estate planning.
• Definition:
  
  • An addition or supplement to an existing will, modifying, revoking, or adding provisions.
• Purpose:
  
  • Allows testators to make changes to their will without creating an entirely new document.
• Usage:
  
  • Often used for minor updates, such as changing beneficiaries, executors, or specific bequests.
• Requirements:
  
  • Must meet legal formalities similar to those of a will.
• Importance:
  
  • Enables flexibility in estate planning without entirely rewriting the will.
• Caution:
  
  • Must be executed with the same care and attention as the original will.

Question 116

Issue

Answer 116

• Lineal descendent – issued= going down from the deceased father to son
• If no executor named or one named is unwilling, the next right is spouse and then the closest blood relative
• Legal term related to wills and inheritance.
• Definition:
  
  • Refers to a person’s descendants, including children, grandchildren, and further generations.
• Significance:
  
  • Important in determining beneficiaries and heirs in the distribution of an estate.
• Inheritance Rights:
  
  • Members of the issue are typically entitled to inherit a share of the estate.
• Lineal Descendants:
  
  • Encompasses direct descendants in a family line.
• Intestate Succession:
  
  • Guides the distribution of assets when there is no valid will.

Question 117

Power of Attorney

Answer 117

• The authority to act for another person in specified or all legal or financial matters.
• Legal document granting authority to act on behalf of another person.
• Key Elements:
  
  • Principal: The person granting the authority.
  • Agent or Attorney-in-Fact: The person receiving the authority.
• Types of Power of Attorney:
  
  1. General Power of Attorney:
     
     • Broad authority, often used for financial matters.
     • Terminates if the principal becomes incapacitated.
  2. Special or Limited Power of Attorney:
     
     • Specific powers granted for a defined purpose.
     • Can be for a particular transaction or time frame.
  3. Durable Power of Attorney:
     
     • Remains effective even if the principal becomes incapacitated.
     • Common for long-term planning.
  4. Springing Power of Attorney:
     
     • Becomes effective upon the occurrence of a specific event.
     • Often triggered by the principal’s incapacity.
• Importance:
  
  • Facilitates decision-making in various situations.
  • Provides a trusted individual the legal authority to act in the principal’s stead.
• Revocation:
  
  • The principal can revoke or modify the power of attorney as long as they are mentally competent.

Question 118

Letters of Probate(executor)/Letters of Administration

Answer 118

• When a person dies and leaves an executor, they don’t have access to the assets (the estate assets are frozen)
• The executor can’t start dealing with the estate until their executor status has been approved by the court
• This application is called an application for Letters of Probate
  o This application has to include all the assets
  o Why does it take so long to administer an estate?
  ▪ A lot of documents have to be filed in the court
  ▪ How do you know that there aren’t any more assets
• Application for Letters of Administration happens when there is no will

-make application to the court, involves a lot of paperwork
-have to provide a bond
-put farm in name of children as joint tenets before pass to avoid probate
-have up to 6 months to distribute assets

Question 119

Letters of Probate/Administration:

Answer 119

• Definition:
  
  • Legal documents issued by a court to authorize the executor (in the case of probate) or administrator (in the case of administration) to manage the estate of a deceased person.
• Executor:
  
  • Named in the will, responsible for carrying out the deceased’s wishes.
  • Submits the will to probate court for validation.
• Administrator:
  
  • Appointed by the court when there is no valid will.
  • Administers the estate according to intestacy laws.
• Probate Process:
  
  1. Submitting the Will:
     
     • Executor files the will with the probate court.
     • Court examines the will’s validity.
  2. Appointment of Executor/Administrator:
     
     • Court issues Letters of Probate/Administration.
     • Grants legal authority to manage the estate.
  3. Creditor Notification:
     
     • Executors/administrators notify creditors and resolve debts.
  4. Estate Distribution:
     
     • Assets are distributed according to the will or intestacy laws.
• Significance:
  
  • Provides legal authority and recognition to manage and distribute the deceased’s estate.
  • Ensures a systematic and lawful settlement of the deceased person’s affairs.
• Challenges:
  
  • Disputes over the validity of the will.
  • Controversies among heirs or beneficiaries.

-Duration:
- Probate process duration varies, depending on complexity and challenges.

Question 120

Escheat

Answer 120

• If there are absolute no relatives the money will escheat (given) to the government.
• The estate is put in trust for 7 years, for someone to claim it.
• If the debt exceeds the assets then creditors will share/split the assets
• Very rare

-Definition:
- Legal process where property reverts to the state when an individual dies without a will (intestate) and has no heirs or the heirs cannot be identified.

• Purpose:
  
  • Prevents property from remaining ownerless.
  • Ensures the state inherits property in the absence of rightful heirs.

-Conditions for Escheat:
- No valid will exists.
- No identifiable heirs or beneficiaries.

• Escheat Process:
  
  1. Investigation:
     
     • Authorities attempt to locate heirs.
  2. Legal Declaration:
     
     • Court declares the property ownerless.
  3. Transfer to State:
     
     • Ownership transfers to the state.

-Common Trigger Events:
- Lack of will or estate plan.
- Absence of known heirs.

-State Disposition:
- States may use escheated property for public purposes or auction it.

• Exceptions:
  
  • Laws vary; some jurisdictions have limitations on escheat.
• Public Interest:
  
  • Balances individual property rights with the public interest in preventing ownerless property.
• Reclaiming Escheated Property:
  
  • In some cases, heirs may reclaim property if identified after escheat.

Question 121

Statues

Answer 121

□ Intestate Succession Act
□ Survivorship Act
□ Dependents Belief Act
- Power of Attorney Act
□ Health Care Directives Act
□ (Health Care Directors and Subsitute Health Care Makers Act)

Question 122

Intestate Succession Act

Answer 122

• State imposed will
• When no will, the assets are determined through the state
• Applies to persons who died without a will
• If intestate dies, survived by a widow, the widow inherits everything (same thing with spousal relations) -e.g., 500,000
• As of 2019, If offspring of the two of them (issue) widow still gets everything, if multiple issues widow still get it
• If intestate die and children is only those of intestate first 200,000 go to widow, she would get ½ of rest and residue (of everything else) 350,000, and the issue gets ½ r and r (150,000)
• If had 2 issues (only of intestates) – 200,000 to widow plus 1/3 of r & r, the 1st issue get 1/3 and 2nd get 1/3
• Assuming it was good marriage
• 50,000 would be put aside for the children until they are 18 – if don’t say age they can inherit at then its 18 (recommend they cant inherit until 26 or 27- but executor can use the money for their education or basic necessities –its an encouragement)
• If intestate has no spouse or issues – then go to the father and mother – inherit in equal share
• If 2 people die in a common accident – then presume they died in order of seniority -commorancies act – it has now been changed to survivorship act

Question 123

Intestate Succession Act

Answer 123

• Legislation that dictates the distribution of an individual’s estate when they pass away without a valid will (intestate).
• Key Points:
  • Specifies the order of inheritance in the absence of a will.
  • Governs how the deceased’s assets are shared among surviving family members.

-Hierarchy of Heirs:
1. Spouse:
- Surviving spouse usually has a primary claim.

2. Children:
   
   • If no surviving spouse, children often inherit the estate.
3. Parents, Siblings, and Relatives:
   
   • Succession hierarchy may extend to other family members.

• Equal Distribution:
  
  • Assets may be divided equally among eligible heirs.
  • Provisions for partial distribution to different classes of heirs.
• Exclusions:
  
  • Certain individuals may be excluded from inheritance.
  • Excluded parties may contest under specific circumstances.
• Activation:
  
  • Comes into effect when an individual passes away without a valid will.

-Challenges and Disputes:
- Potential for disputes among heirs.
- Legal processes may be necessary to resolve conflicts.

• Legal Assistance
  
  • Legal professionals often assist in interpreting and applying the Intestate Succession Act.
• Contingent Heirs
  
  • Provisions for heirs at different levels if higher-ranking heirs are absent.
• Updating Laws:
  
  • Jurisdictions may periodically update and revise intestate succession laws.

Question 124

Survivorship Act

Answer 124

• Law says that “where 2 or more people die at the same time, the property of each person is to be disposed of as if that person had survived the other or others”
  o This would make an equal distribution among parents if both the husband and wife died
  o So his share goes to his parents, and her share goes to her parents
  -if one not alive then all goes to other, if both parents not around then go evenly to grandparents, if they are not alive then go to decedents of them, no decedents then go great grandparents, if no g.g. then their decedents, if none – then go to any relative ever
  -really like plotting a family tree
  -if spouse of intestate is separated and is cohabiting with another person (even tho still together gets no estate)
  -decendents of intestate who were born even after death inherit as if have survived the intestate
• Where 2 people die and it is uncertain when, or if they die within 5 days of one another, they are presumed to have died at the same time
  o Usually state if I die I leave everything to my wife/husband if they survive 30 days after my death)
• Adopted children, also half blood children are treated as whole blood

Question 125

Dependents Belief Act

Answer 125

• Only a dependent can come along and upset a testate will
• A dependent is:
  o 1) Any surviving spouse (wife, husband)
  o 2) Any children under the age of 18 years old at the time of deceased death
  o 3) Any children 18 years of age or older at the time of deceased death, who is disabled (mentally or physically) and incapable of working or by reason of need may need to receive a greater share of deceased estate (unable to make a living) or can show court they need help

-a court can overrule a will and can overrule intestates’ succession act – a court judges what it fair, just and equitable

• Any person can make an application to the court to grant all or greater part of the estate
• The test that all courts use to decide: what is fair, just and equitable

Question 126

Dependents Relief Act cont…

Answer 126

• Legal statute that provides relief and support for dependents when the deceased did not adequately provide for them in the will.

-Key Features:
- Designed to prevent disinheritance of dependents, ensuring they receive fair and reasonable support.

• Eligible Dependents:
  
  • Spouse, children, and other dependents who can demonstrate financial dependence on the deceased.
• Rights of Dependents:
  
  • Dependents can make a claim if they believe the deceased’s will does not provide adequate support.
  • Court has the authority to adjust the distribution of the estate to meet the needs of dependents.

-Balancing Interests:
- Courts aim to strike a balance between testamentary freedom (the right to dispose of one’s property) and the duty to provide for dependents.

• Factors Considered:
  
  • Court considers factors such as financial need, the deceased’s moral obligation, and the size of the estate.
• Claims Process:
  
  • Dependents must file a claim within a specified period after the deceased’s death.
  • Legal proceedings involve assessing the validity and strength of the claim.
• Property Adjustment:
  
  • Courts may order adjustments to the distribution of the estate, reallocating assets to provide for dependents.
• Independent Legal Advice:
  
  • Dependents and estate executors often seek independent legal advice to navigate the claims process.
• Impact on Estate Planning:
  
  • Knowledge of the Dependents Relief Act is crucial for individuals engaged in estate planning.
  • Encourages consideration of dependents’ needs when drafting wills.
• Court Discretion:
  
  • The court exercises discretion in determining the appropriate relief for dependents.
  • Decisions are based on the unique circumstances of each case.

-Legal Representation:
- Legal representation is common for both dependents and estate executors during court proceedings.
- Ensures a fair and lawful resolution.

Question 127

Power of Attorney Act

Answer 127

• This is where one person grants the power to another person to step into their shoes and do what you have granted them permission to do (and only do what they were granted permission for) – give legal authority for someone to act on your behalf (now or contingent-> if something happened then act)
• Contains two people:
  o Grantor: gives you the power of attorney (can cancel at any time they want)
  o Grantee: receives power of attorney
• A person granted power of attorney can make decisions with respect to property, financial, and personal affairs.
• A person with power of attorney can step in and do everything that the grantor could legally do as if the grantor was able to do it himself
• P of A only valid as long as person is alive, once die so does position
• Often husband and wife often each others
• Have to be 18 yrs of age to be P of A
• Extremely important document
• If become incapacitated and no P of A – then have to go to court, make application, set up bonding

– if court grants you to step into their shoes basically giving up their rights – must be investigated
* Enduring power of attorney comes into play in present time or should you become incapacitated –in effect step into the shoes of grantor
o Types of P of A ; specific P of A (step in to do a certain/specific thing e.g., if out of country and want someone to sell your house)

Question 128

Types of Power of Attorney:

Answer 128

General Power of Attorney:
- Grants broad authority to the attorney to manage various affairs on behalf of the grantor.
- Typically used for specific periods or situations.

Enduring Power of Attorney:
- Remains valid even if the grantor becomes mentally incapacitated.
- Offers a safeguard for decision-making in cases of diminished capacity.

Question 129

Health Care Directives Act (Health Care Directors and Substitute Health Care Makers Act)

Answer 129

• A document that gives your directions for medical treatments to treatment providers. It comes into affect when you are unable to to make and communicate tour own health care decisions.

2 kinds of health care directive:
o 1) Gives specific direction to treatment providers of the treatments you consent to or refuse
o 2) You name another person called a proxy to make health care decisions for you if and when you cannot make health care decisions yourself
Combination of both is possible

• Persons over the age of 16 can make a healthcare directive
  o Useful for terminally ill or elderly patients
• Directives should say what treatments you want or would refuse (be specific as possible) -make wishes as specific as possible

Health care directive (sometimes called a living will)
-if become incapacitated and cannot make own health care decisions – nearest adult relative – if can’t be found then treatment/medical providers
-makes sure your wishes will be known and respected
-proxy can be anyone

• If you do not write a directive and are unable to make healthcare decisions and no proxy is named, the decisions are made by nearest adult relative, if no relative can be found then nearest treatment provider.
• Directive should be handwritten/or typed, signed and dated, and specific (provide name, address of proxy, how to contact them)
• Directive can be cancelled, you would just tell someone or destroy it or even write a new directive (dating destroys the older directive)
  o Can be changed at anytime
• In an emergency you can tell another person that you no longer want to follow the directive

Question 130

Estate

Answer 130

all assets of a desist person

Question 131

Estate Cont…

Answer 131

• If an intestate dies survived by a widow and one issue, the widow inherits everything
• Gets first $100,000 of the net value of the estate plus one half of the rest and residue (rest and everything else).
  o If an interstate dies survived by widow and 2 issues, the widow gets one-third of rest and residue.
• If intestate dies leaving no will, the estate would go to the father and mother. If one parent is deceased, the other parent will inherit the estate.
• If the interstate dies with no parents or widow the estate will be distributed to the brothers and sisters.
• If brothers and sisters are deceased, the children of the bothers/sisters would inherit.
• If the interstate dies leaving no widow, parents, siblings, the estate is to be divided equally among the next of kin in equal degrees of consanguinity.

Question 132

Estate Cont…

Answer 132

what happens when someone is presumed dead but do not know for sure- any person who would be affected by the order of presumption of death can apply (next of kin, or holds property of this person)  requirements: 1. person has been absent/not heard from since whatever day they last heard of the person 2. Applicant has no reason to believe this person is alive, have reasonable believe that person is dead

Question 133

1. Seller by letter offered to sell his land to Buyer for $800,000 CASH. Buyer replied that he could not pay that much cash but was willing to pay
   $760,000 on terms. Nothing further happened until BUYER emailed SELLER “Would like to know if you still want to sell your land I have $800,000” CASH now. Email answer immediately”. SELLER emailed “I will sell you the land OFFER ACCEPTED”. Nothing of importance happened until SELLER notified the buyer that the offer to sell the land was revoked. Was there a contract? Explain in legal terms

Answer 133

There was no contract. In order for a contract to be present, the law requires 5 essential elements one which is mutual agreement, which states there should be a offer and acceptance between seller and buyer. In this situation the buyer made a counter offer that voids the first offer. For there to be a new contract, a new offer must be given to seller and must be accepted by the buyer.
* State the facts, and state your decision and reason

Facts:
-Seller offered to sell land to Buyer for $800,000 cash.
-Buyer replied, offering $760,000 on terms.
-Buyer later emailed Seller, expressing the ability to pay $800,000 cash.
-Seller accepted the offer via email.
-Seller subsequently revoked the offer.

Decision:
There was no contract.

Reasoning:

Counter Offer:
-Buyer’s response, offering $760,000 on terms, constitutes a counter offer, not an acceptance of the original $800,000 cash offer.
-A counter offer acts as a rejection of the initial offer, introducing new terms.

Mutual Agreement:
-Mutual agreement is a fundamental element of a contract.
-In this case, there was no mutual agreement on the exact terms as Buyer’s counter offer altered the original terms.

No Acceptance of Original Offer:
-Buyer’s final acceptance of the original $800,000 cash offer only occurred after the seller had revoked the offer.
-An acceptance must be communicated while the offer is still open to create a binding contract.

Revocation of Offer:
-Seller’s notification of offer revocation further solidifies the absence of a contract.
-Once an offer is revoked, it cannot be accepted.

Conclusion:
-The counter offer and subsequent revocation indicate a lack of mutual agreement on the essential terms required for a valid contract.
-The absence of a meeting of the minds prevents the formation of a binding contract in this scenario.

Question 134

2. You arrive home and find that “X landscaping Inc” mistakenly landscaped your yard instead of your neighbors next door. Although you had not asked the company to do so, you are delighted with the result. You therefore agree to pay “X” $750.00 for the landscaping knowing this work is worth
   $2500.00. You change you mind and refuse to pay, “X” sues you for the
   $750.00. State the results of the suit with reasons.

Answer 134

X landscaping would not be successful in the lawsuit because e the element of consideration is lacking. Consideration is a required element in a contract and the

Facts:
-“X Landscaping Inc” mistakenly landscaped your yard without your request.
-You agree to pay “X” $750.00 for the landscaping, knowing it is worth $2500.00.
-Later, you change your mind and refuse to pay.

Decision:
“X Landscaping Inc” would likely not be successful in the lawsuit.

Reasoning:

1. Consideration:
   -Consideration is a vital element in the formation of a contract.
   -In this case, the initial agreement to pay $750.00 lacks consideration as there was no pre-existing obligation or request for the landscaping service. It was done mistakenly.
2. Lack of Consideration for the Agreement:
   -For an agreement to be enforceable, both parties must provide consideration—something of value.
   -Since the landscaping work was done without your request, the initial promise to pay lacks consideration.
3. Unenforceable Agreement:
   -An agreement without consideration is generally unenforceable in contract law.
   -Courts typically do not enforce promises that lack the exchange of something valuable (consideration).

Conclusion:
-The absence of consideration in the agreement to pay $750.00 for the landscaping work makes the contract unenforceable.
-“X Landscaping Inc” is unlikely to succeed in the lawsuit due to the foundational element of consideration being absent.

Question 135

3. Horace AIK was escorted out of a bar after becoming drunk, obnoxious, and belligerent. AIKI had been asked to leave but refused. Once outside, AIKI picked up a large rock and struck one of the bouncers with it from behind. In retaliation, the bouncer knocked him to the ground with a kick to the head. Another bouncer then climbed on top of AIKI and repeatedly punched him in the face for 5 minutes. AIKI suffered a number of injuries and subsequently sued the bouncers and the owners of the bar. Discuss the result of the lawsuit with reasons.

Answer 135

First off as soon as Alki was asked to leave and refused he became a trespasser, so the owners had the right to remove him from the bar. After being escorted outside the Alki, would strike one of the bouncers in the head which would be considered battery. The bouncer that kicked him would be considered self defense but the other bouncer that repeatedly punched him in the face is excessive force.

Result of the lawsuit would be the second bouncer and the owner of the bar would be liable in law. When Alki entered the bar he entered as an invitee. When asked to leave he was a trespasser. The owners has the right to remove him and to due so with reasonable force. Second bouncer used excessive force and the owner would also be liable as an extension of liability.

Legal Analysis of Lawsuit Result:

Facts:
-AIKI was escorted out of a bar for being drunk, obnoxious, and belligerent.
-AIKI, once outside, struck a bouncer with a large rock.
In retaliation, one bouncer kicked AIKI in the head.
-Another bouncer repeatedly punched AIKI in the face for 5 minutes.
-AIKI suffered injuries and sued the bouncers and bar owners.

Result of the Lawsuit:

Trespasser Status:
-AIKI, upon refusing to leave the bar, became a trespasser.
-The owners had the right to remove him from the bar, exercising reasonable force.

Battery by AIKI:
-AIKI’s action of striking a bouncer with a large rock constitutes battery.
-The bouncer has a legal right to defend against such an attack.

Self-Defense:
-The bouncer who kicked AIKI in the head may argue self-defense in response to the initial attack with a rock.
-Self-defense must be reasonable and proportional to the threat.

Excessive Force:
-The bouncer who repeatedly punched AIKI in the face for 5 minutes used excessive force.
-Excessive force goes beyond the bounds of self-defense and may result in liability.

Owner’s Liability:
-The owner of the bar may be held liable for the actions of the bouncers.
-The use of excessive force by the second bouncer may be attributed to the owner as an extension of liability.

Conclusion:
-The bouncer who used excessive force and the owner of the bar are likely to be held liable in the lawsuit.
-The actions of the bouncers must be reasonable and proportionate, and the excessive force used in this case may result in legal consequences.

Question 136

4. A person had a policy of insurance on his life, the beneficiary of the policy being another person. The policy lapsed for default in payment of a premium and the beneficiary two days later forwarded the premium the insurance company accepted in revival of the policy. It turned out that the insured had died one day before the premium was made, both the company and the beneficiary unaware of the fact. Was the policy payable? Explain

Answer 136

The policy was not payable. For the policy to be payable there needed to be genuine attention. When the insurance company accepted the policy the person was already deceased.

Legal Analysis of Insurance Policy:

Facts:
-A person had a life insurance policy with another person as the beneficiary.
-The policy lapsed due to a default in the payment of a premium.
-Two days later, the beneficiary forwarded the premium to revive the policy.
-Unbeknownst to both the insurance company and the beneficiary, the insured had died one day before the premium was paid.

Analysis:

1. Revival of Lapsed Policy:
   -The beneficiary’s action in forwarding the premium aimed to revive the lapsed policy.
   -The insurance company accepted the premium, intending to reinstate the policy.
2. Requirement of Genuine Intention:
   -For a life insurance policy to be payable, there must be genuine attention and a legal basis for the claim.
   -The insured, unfortunately, had already passed away before the premium was paid.
3. Legal Principle:
   -The doctrine of “post-mortem revival” applies in insurance law.
   -If the insured dies before the revival of the policy, the revival is not effective.

Conclusion:
-In this case, the policy is not payable because the insured had already died before the premium was paid and the policy was revived.
-The insurance contract is contingent on the existence of the insured at the time of the revival.

Question 137

Briefly Explain
1. The meaning of the two phases “the balance of probabilities” and “beyond reasonable doubt” In what type of ways would both phases be used?

Question 138

2. The difference between “sufficient consideration” and “adequate consideration”

Answer 138

Sufficient consideration is required in one the elements of the contract. Adequate consideration is not concerned by the law.

Question 139

3. The application of “IFRS Ipsa Loquitur”

Answer 139

“Things speak for itself”

Question 140

4. The similar major objective of both the company’s creditors arrangement act and that of the chapter 11 of the

Answer 140

Stop credits from suing and allowing to restructure to

?

Question 141

5. The tort of “injurious falsehood”

Answer 141

Make lies about the business to damage reputation

Question 142

6. The significant difference between a Sale and Agreement to sell.

Answer 142

In a sale the ownership passes from seller to buyer and buyer is liable, in agreement to sale the ownership doesn’t pass.

Question 143

True and False

Answer 143

1. The law of partnership and agency are related in terms of operations of a partnership. (T)
2. Consideration in a contract terms refers to a parties competence to enter into a contract. (F)
3. Parents are liable for all contracts made by there children. (F)
4. Liquidated damages are uncertain in amount. (T) F
5. The limitations of Civil Rights Act does not apply to mortgages registered against the title to land. (T)
6. An administrative tribunal is a quasi-judicial tribunal. (T)
7. Possession is a 9/10 of the law. (F)

Question 144

Intervening Acts and Liability:

Answer 144

-Novus Actus Interveniens introduces the concept of intervening acts, and their impact on liability depends on the extent of the new injury caused.