Finals Flashcards
1
Q
privity of a contract
A
the relationship that exists between parties to a contract
2
Q
vicarious performance
A
a third party performs contractual obligations on behalf of the promisor who remains responsible for proper performance (subcontractor)
3
Q
exception clause
A
a clause in a contract that exempts or limits the liability of a party
4
Q
trustee
A
a person who is trusted
5
Q
beneficial owner
A
a person who, although not the legal owner, may compel the trustee to provide benefits to him
6
Q
trust agreement
A
the document that conveys property to a trustee to be used for the benefit of a third party beneficiary
7
Q
resulting trust
A
a trust relationship recognized when the conduct of the parties demonstrates the intention to hold property for the benefit of the other
8
Q
constructive trust
A
a trust relationship imposed by the court to prevent a party from being unjustly enriched by keeping property that should benefit another
9
Q
undisclosed principal
A
a contracting party who, unknown to the other party, is represented by an agent
10
Q
enurement clause
A
extends the rights and benefits to those inheriting from a party, succeeding the party, or taking an assignment from a party
11
Q
4 exceptions to the privity of contract rules
A
- trusts
- insurance
- undisclosed principal
- contracts concerning land
12
Q
principled exception
A
allows third parties to rely upon a contractual exemption clause when the parties to the contract intended to include them, and their activities come within the scope of the contract and the exemption clause
13
Q
2 assignment contracts
A
first, create unperformed right, subsequently assigned to third party in second contract
14
Q
assignment
A
the transfer by a party of its unperformed rights under a contract to a third party
15
Q
choses in action
A
rights to intangible property such as patents, stocks, contracts that may be enforced in the courts
16
Q
choses in possession
A
rights to tangible property that may be possessed physically
17
Q
statutory assignment
A
an assignment that complies with statutory provisions enabling the assignee to sue the other party without joining the assignor to the action
18
Q
equitable assignment
A
an assignment other than a statutory assignment
19
Q
3 requirements for assignee to sue promisor without joining the assignor in the lawsuit (statutory assignment)
A
- assignment was absolute (unconditional and complete)
- it was in writing
- promisor received notice of it in writing
20
Q
set off
A
the right of a promisor to deduct an existing debt owed to him by the promisee
21
Q
executor
A
the personal representative of a deceased person named in his or her will
22
Q
intestate
A
when a person dies without leaving a will
23
Q
administrator
A
the personal representative of a person who dies intestate
24
Q
negotiable instruments
A
a written contract containing a promise, express or implied, to pay a specific sum of money to a designated person or to “bearer”
25
minor breach
a breach of a non-essential term of a contract or of an essential term in a minor respect
26
major breach
a breach of the whole contract or of an essential term so that the purpose of the contract is defeated
27
3 ways a breach may occur
1. express repudiation
2. acting in a way that makes it impossible to perform promises
3. failing to perform or poor performance
28
express repudiation
one of the contracting parties advises the other that it does not intend to perform as promised
29
anticipatory breach
an express repudiation that occurs before the time agreed for performance
30
substantial performance
performance that does not comply in some minor way with the requirements of the contract
31
quasi-contract
an obligation that may arise because one party has received an unfair benefit at the expense of the other
32
unjust enrichment
unfair benefit
33
drawing party
the contracting party that prepared the agreement
34
unconscionable terms
terms agreed to by parties of unequal bargaining power that give an unfair advantage to the powerful party over the weaker party
35
3 types af remedies
1. damages
2. equitable remedies
3. quantum meruit
36
2 prereqs. for award of damages
1. loss must flow from breach
| 2. damages must be mitigated
37
liquidated damages
an amount agreed on to be paid in damages by a party to a contract if it should commit a breach
38
penalty clause
a term specifying an exorbitant amount for breach of contract, intended to frighten a party into performance
39
expectation damages
an amount awarded for breach of contract, based on expected benefits or profits
40
consequential damages
secondary losses incurred by the non-breaching party that were foreseeable at the time of contracting
41
general damages
an estimated amount for intangible injury that a court may award
42
nominal damages
acknowledge a breach of contract where there is no real loss suffered
43
reliance damages
costs of expenditures and wasted effort reasonably made in preparation for performance
44
punitive damages
used in extreme conditions, used to punish the wrongdoer
45
5 prerequisites for equitable remedy - need all 5
1. damages are inadequate
2. claimant has clean hands
3. no delay in seeking relief
4. cannot negatively affect innocent third party
5. sufficient consideration
46
specific performance
an order requiring a defendant to do a contracted-for act, usually to complete a transaction
47
injunction - negative convenant
court order restraining a party from acting in a particular manner; prohibits party from committing a breach
48
interlocutory injunction
temporary injunction preventing immediate harm from being done before full trial of the matter
49
rescission
restore parties to pre-contract positions
50
quantum meruit
the fair amount a person deserves to be paid for benefit conferred
51
5 common law damage remedies
1. expectation damages
2. consequential damages
3. general damages
4. reliance damages
5. punitive damages
52
4 equitable remedies
1. specific performance
2. injunction
3. rescission
4. quantum meruit
53
execution
seize and sell a debtor's chattel's or arrange for a sale of his lands
54
garnishment
order requiring the debtor's employer to retain a portion of their wages each payday to surrender to creditor
55
contempt of court
a finding by a court that a person has willfully refused to obey a court order and therefore be punished
56
bailor
owner of goods
57
bailee
party accepting possession of goods
58
gratuitous bailment
bailment where one party provides no consideration, no intention to create contractual relationship
59
bailment for value
contractual bailment, payed
60
lien
gives bailee right to keep possession of good until bailor pays
61
the right of sale
give bailee who has lien upon goods stored an additional right to sell the goods - publicly, reasonable amount of time, reasonable price - if the bailor does not end up paying
62
3 types of transporters (bailment)
1. gratuitous carrier
2. private carrier - specific goods, contractual
3. common carrier - almost strict liability
63
3 defences of transporters (bailment)
1. act of god
2. inherent defect in goods - defect when carrier received it
3. default by shipper -> bad packing done by shipper
64
dependent agent
an agent who acts exclusively, or mostly, for a single principal i.e. insurance agent
65
independent agent
an agent who carries on an independent business and acts for a number of principals i.e. lawyers
66
agency agreement
agreement between principal and agent whereby the agent undertakes to act on behalf of the principal
67
power of attorney
type of agency agreement authorizing the agent to sign documents on behalf of the principal
68
4 duties owed by agent to principal
1. duty to comply with agency agreement
2. duty of care
3. personal performance
4. good faith
69
2 duties owed by principal to agent
1. compensate agent for effort
| 2. pay for agent's expenses and losses
70
actual authority
the authority given expressly or implied to the agent by the principal
71
apparent authority
authority that a third party is entitled to assume that the agent possesses
72
holding out
representing by words or conduct that a person is one's agent or has a particular authority
73
ratification of an agency contract
subsequent adoption by the principal of a contract made by an agent without authority
74
warranty of authority
a person who purports to act as agent represents that she has authority to contract on behalf of the principal
75
5 ways of terminating an agency relationship
1. Performance
2. Frustration
3. Death
4. Bankruptcy
5. Loss of Capacity
76
indefinite hiring
a contract of employment for an undetermined length of time, with no expectation of termination ro described end date
77
payment in lieu of notice
payment of the amount of compensation the employee would have earned during the reasonable notice period
78
constructive dismissal
substantial change to an employee's job that amounts to termination of the existing employment
79
dismissal for cause
dismissal without notice or further obligation by the employer when the employee's conduct amounts to breach of contract
80
4 reasons for dismissal without notice
1. misconduct
2. disobedience
3. incompetence
4. illness
81
progressive employee discipline
imposing increasingly serious consequences for each event of improper employee behaviour
82
2 remedies available for wrongful dismissal
1. damages
| 2. reinstatement
83
employment standards act
imposes minimum contractual obligations on employers
84
worker's safety and insurance act
governs workplace injury remuneration -> no fault compensation sceme
85
occupational health and safety act
governs workplace safety prosecutions -> preventative
86
human rights code
provides protection from discrimination - accommodate disabilities with limited hardship
87
pay equity
raise women wages to match those equivalent of men, not applicable v.v.
88
ontario labour relations act
create unionized environment
89
PIPEDA
workplace privacy, duties owed to keep employee info safe
90
partnership agreement
agreement between persons to create a partnership and to set out the terms of the relationship
91
joint liability
situation where each of a number of persons is personally liable for the full amount of debt
92
4 steps that should be taken on retirement from a partnership
1. notify existing clients
2. place notice in official gazette of province
3. remove name from register
4. letterheads altered to remove name
93
limited partnership
partnership in which some of the partners limit their liability to the amount of their capital contributions
94
general partner
a partner in a limited partnership whose liability is unlimited
95
limited partner
a partner in a limited partnership whose liability is limited to the amount of his or her capital contribution
96
llp
partnership in which non-negligent partners are not personally liable for losses caused by the negligence of a partner
97
contractual joint venture
joint venture effected by agreement without the creation of any separate legal entity
98
equity joint venture
corporation formed and jointly owned by the parties to a joint venture for the purpose of carrying on the venture
99
associated corporations
one corporation controls the other, or both corporations are controlled by the same person/group
100
3 conditions to lift corporate veil and find individual within corporation liable
1. individual must control corporation
2. control must have been exercised to commit fraud, or breach of fiduciary duty
3. misconduct was the cause of plaintiff's injury
101
letters patent
a document incorporating a corporation, issued by the appropriate authority, and constituting the "charter" of the corporation
102
articles of incorporation
founding corporate document (charter or constitution of the corporation)
103
bylaws
internal working rules of corporation
104
professional corporation
business corporation that may be formed by members of a profession
105
issued capital
the shares that have been issued by a corporation
106
paid-up capital
shares that have been issued and fully paid for
107
par value
nominal value attached to a share at time of issue
108
pre-emptive right
the right of a holder of shares to protect his percentage ownership in the company by buying the same percentage in any new issue of shares
109
cumulative right
the right of the holder of a preferred share to be paid arrears from previous years before any dividend is paid on the common shares
110
corporate governance
rules governing the organization and management of the business and affairs of a corporation in order to meet its internal objectives and external responsibilities
111
board of directors
governing body of a corporation, responsible for the management of its business and affairs
112
officers
high ranking members of a corporations management team as defined in the bylaws or appointed by the directors
113
audit committee
a group of directors responsible for overseeing the corporate audit and preparation of financial statements
114
compensation committee
committee responsible for setting director and officer pay
115
nominating committee
committee responsible for proposing and recruiting new directors
116
5 jobs of directors
1. issue shares
2. declare dividends
3. adopt bylaws
4. call meetings of shareholders
5. delegate responsibilities/appoint officers
117
cumulative voting
a method of electing directors by a form of proportional representation
118
S.122a of CBCA
requires directors/officers act honestly and in good faith with a view to the best interests of the corporation, NOT shareholders
-> fiduciary duty, avoid conflict of interest
119
S.122b of CBCA
requires directors/officers to exercise the care, diligence, and skill that responsible person would act in comparable circumstances, duty to shareholders
->negligence , comparable to average director
120
due diligence defence
defence to breach of fiduciary duty; an acceptable standard of care and skill was exercised by a director/officer
121
good faith reliance
defence to breach of fiduciary duty; reliance on audited financial statements or export reports
122
corporate indemnity
defence to breach of fiduciary duty; agreement with corporation to reimburse a director for any costs associated with liability for breach of duty
123
director's and officer's liability insurance
defence to breach of fiduciary duty; corporation may purchase liability insurance on behalf of its board
124
business judgement rule
courts focus on process to arriving at decision; as long as directors exercise prudence and diligence while making a decision, duty of skill and care has been met
125
strict liability of directors
unpaid wages, taxes, ei
126
4 specific conducts involving conflict of interest
1. disclosure of contracts with corporation
2. interception of corporate opportunity
3. personal use of corporate information
4. competing with corporation
127
insider trading
the use of confidential information relating to a corporation in dealing in its securities in order to make a profit/avoid a loss
-> pivotal info that isn't public yet
128
3 rights of shareholders
1. vote at any meeting of shareholders
2. receive any dividend declared
3. receive remaining property of corporation on dissolution
129
ordinary resolution
resolution adopted by the general meeting and passed by a simple majority
130
special resolution
resolution of the general meeting required to be passed by a special (2/3) majority
131
class rights
special rights attached to a particular class of shares
132
proxy
a person appointed to attend a general meeting of shareholders and to cast the votes of the shareholder appointing him/her
133
proxy form
a form required to be circulated to shareholders before a general meeting, inviting them to appoint a proxy if they wish
134
pre-emptive right
right to purchase additional stocks before the general public
135
documents of record
documents that a corporation is required to keep and make available to shareholders
-> minutes of meetings, charter, bylaws, register of directors
136
inspector
person appointed by the court to investigate the affairs of a corporation
137
appraisal remedy
the right to have one's shares bought by the corporation at a fair price
138
derivative action
proceedings brought by one or more shareholders in the name of the corporation in respect of a wrong done to the corporation
-> right of minority shareholder to start action against director for wrongdoing
139
3 requirements for minority shareholder to bring action in the name on behalf of corporation
1. directors refuse to bring up action themselves
2. applicant acting in good faith
3. be in best interests of the company
140
winding up
the dissolution of a corporation -> typically used for small/family businesses
141
oppression remedy
a statutory procedure allowing individual shareholders to seek a personal remedy if they have been unfairly treated -> broadest, most flexible remedy
142
shareholder agreement
an agreement between two or more shareholders that is distinct from the corporation's charter and bylaws
143
unanimous shareholder agreement
a shareholder agreement to which all shareholders are parties
144
2 rights that may be in a shareholder agreement
1. right to participate in management - shareholders promise to elect each other at meetings
2. right to fair price for a share interest - agree to a regular method of valuation of their shares
145
regulatory offences
less serious offences created by government regulation through specialized legislation, agencies, and tribunals
146
mens rea offences
offences where the prosecution must establish a "guilty mind" on the part of the defendant
147
offences of strict liability
offences where there is a presumption of guilt unless the defendant can show that they took reasonable care
148
offences of absolute liability
offences where simply doing the act makes one guilty of the offence
149
3 categories of offences
1. mens rea offences
2. offences of strict liability
3. offences of absolute liability
150
the solvency test
in order to protect creditors, test the company of their ability to pay off their debts with their current assets
151
securities commission
the statutory authority appointed to supervise the issue of securities to the general public, the operation of securities industry, and the stock exchange
152
prospectus
the document that a corporation is required to publish when inviting the public to subscribe for its securities
153
indoor management rule
a person dealing with a corporation is entitled to assume that its internal procedural rules have been complied with unless it is apparent that such is not the case
-> contractual liability of corporations
154
e-retailing
the supply of tangible or electronic goods/services over the internet
155
web wrap agreement
the acceptance of contractual terms, indicated by clicking on the appropriate icon
156
click-wrap agreement
requires customer to open terms page before clicking acceptance of them
157
E-commerce act
rules of contract formation that applies to all internet contracts
158
Consumer Protection Act
protection available to consumers when they contract with a business online
159
main tort issue relating to e commerce
defamation - anyone can post anything; is hyperlinking an act of defamation?
160
infringement
violation of the rights of the owner of the intellectual property
161
trademark
an identifiable feature that is used by a person for the purpose of distinguishing his goods or services from those of others
- may not always be registered (initial 15y + 5 years renew)
162
passing off
tort involving misrepresentation of goods to deceive public
163
cybersquatting
the registration of a domain name containing the trademark of another person, with the intention of selling the domain name to the owner of the mark
164
alternative dispute resolution
the use of private procedures such as mediation and arbitration to resolve problems - trademark infringement of generic names
165
copyright
gives the creator of the work exclusive right to copy, produce, distribute that work - life of author + 50 years
166
royalty
fee paid to the copyright owner for permission to copy the work
167
moral rights
rights to always be attributed as the creator of work
168
copyright infringement remedy
damages/infringement
169
fair dealing
exception to copyright infringement - the use of copyrighted material for fair use (research, education, private study, parody, review, news reporting)
- muse be a fair amount (20%)
170
digital rights management system (DRM)
a system collecting data about the licensing, payment for, and authenticity of a work
171
technical protection measures (TPMs)
use of locks for electronic material to block unauthorized use of their copyrighted material
172
patent
20 year monopoly of new idea/process
173
proper law of the contract
the law that the parties intended to govern their relationship - parties to name it in their contract
174
GATT
principle document that formulates the rules for international trade - includes trade-related investment measures - nondiscrimination - all countries to receive most favoured nation treatment
175
trade-related investment measures
national measures regulating investment that have an impact upon international trade
176
most favoured nation treatment
the principle that goods imported from one country should not be treated less favourably than those imported from any other country
177
national treatment
the principle that goods from another country should not be treated less favourably than domestic goods
178
free trade areas
groups of countries within which customs duties are eliminated
179
NAFTA
regional trade agreement - exception to GATT
180
main concern of foreign investment
protect canadian culture - often conflicts with trade agreements
181
2 steps of managing foreign investment
1. investment canada receives notice of foreign investment
| 2. must get approval of large acquisitions to protect culture
182
forum non conveniens
refusing to hear a proceeding because another jurisdiction is more appropriate
183
security for costs
money deposited into the court in case an unsuccessful foreign plaintiff is ordered to pay the legal costs of the successful defendant
184
party autonomy
the parties' freedom to determine how their dispute will be resolved
185
arbitration clause
a term in a commercial contract designating arbitration as the process for resolution of any disputes arising between the parties
186
commercial arbitration
the use of arbitration methods to solve any disputes arising in commercial environments
