Contracts Flashcards
What is the philosophy of contracts? (4)
1) Freedom of contract
2) Promised exchanges
3) Bargain
4) Future expectation created
What is the source of contract law?
1) Constitution Act, 1867 Section 92 (13) : Property and Civil Rights
2) Provincial constitutional jurisdiction
3) Mostly left to common law judges to develope
Forming of a contract - Arm’s length
arm’s length - the description of an agreement made by two parties
1) freely and independently of each other,
2) without some special relationship, such as being a relative, having another deal on the side or one party having complete control of the other.
Forming of a contract - Arms length law perspective
- The law assumes that you don’t traditionally make contracts with family members and rather with people at arm’s length. Strangers and such.
- With family and friends the courts do no assume is a legal documentation
How do you make a contract with someone not at “arms length” (family)
- If you do want to go make a contract with family, social settings, etc – you must state explicitly to overrule courts assumption
What are the two things needed to form a contract
Intention to create legal relations. This means two things,
1) ARMS LENGTH
2) THE ACKNOWLEDGEMENT THAT THE OPPOSITE PARTY WILL TAKE TO COURT FOR ENFORCEMENT
The presumption in the formation of a contract? (2)
1) Contract made by parties not a arms length
2) Contract made by parties at arms length
Need for writting? - Is an oral contract legally enforceable?
yes!
Statue of Frauds: three kinds of contracts MUST be written
1) Sale of land
2) guarantees of indemnities (security or protection against a loss or other financial burden)
3) Performance exceeds one year
What is an indemnity?
security or protection against a loss or other financial burden.
Give an example of a Guarantor?
A gives money to B and C promises to pay it back to A
C is the Guarantor
When your hired why is it that your not explicitely given a time frame?
because your looked as hired indefinitive
Are most consumer transactions oral or commercial?
Oral
Are most commercial transaction oral or written?
written. Think Equipment, supplies, and machines
NEED FOR WRITING? Given the fact that most contracts are not obligated to be written, why is it so prevelant?
1) Easy proof if enforcement is required. Signatures equate consent on behave of party
2) Guidance to performance - standards established
NEED FOR WRITING? What kind of writing is required by law?
A Memorandum
NEED FOR WRITING? What is a Memorandum?
Anything on paper which is signed for a certain purpose/ objective
NEED FOR WRITING? Suppose you don’t write a contract and there is no proof of certain actions necessary to honour the contract. What are your options for enforcing these actions when no memorandum is available as proof?
convince the judge that there is a clear motive /CONDUCT of contract (HAIL MARY)
NEED FOR WRITING? What is a Quantum Merui?
a reasonable sum of money to be paid for services rendered or work done when the amount due is not stipulated in a legally enforceable contract.
NEED FOR WRITING? What is a Doctrine of Part Performance?
- Part-Performance doctrine is an equitable principle that allows a court to recognize and enforce an oral contract despite its legal deficiencies
- conduct between the parties that is unequivocally referable to the existence of this contract”
Offer - What is an offer?
an expression of willingness with the apparent intention that it shall become legal and binding when it is accepted by the other party
What does an offer contain? (2)
1) Subject matter
2) Price
What is an offerOR
someone who gives an offer to another
What is an offerEE
someone who receives from someone
