Q's Flashcards

Question

As reviewed in this course, discuss the reasons for the expansion of Professional Liability Claims. (5)

Answer 1

Claims have been expended in recent years due to several reasons. One reason is the increasing complexity of professional services resulting in harder to provide accurate and effective services to their clients. Another reason is due to the increase of lawsuits and claims filed against professionals. The role “professional” has changed from someone as a trusted advisor to a service provider, clients are more demanding and less forgiving of mistakes. Because of technology, professionals are more at risk for data breaches and other technologically advanced attacks to gather information on them and their clients.

Answer 2

The duties include: Fiduciary duty: Directors must act honestly and in good faith and in the best interests of the shareholders. Duty of care: they must exercise care, diligence and the skill of a reasonable person Duty to disclose conflicts of interests Duty to act in good faith: Must act in good faith and with honesty in the face of the company. If a director breaches any of these duties, they can be held accountable and liable for damages sustained under their care and authority when it affects the company. Could result in criminal charges, lose of employment etc… Because of the legal liability, it can cause the directors to not be qualified or limiting poor talent to the pool available for the company. To protect your self, they should understand their duties, seek advice when needed, get insurance reviewing and updating corporations policies.

Answer 3

Caveat Emptor “let the buyer beware” This term is a legal principal that means any absent conditions or terms in a contract, the buyer assumes the risk of the purchased item. Under the sales of good act, this limits Caveat Emptor Section 13 (sellers title) The implied condition of which the seller is implied to be the owner or title holder of the object at play. Section 14 (description) Implied condition that goods sold by description will conform to the description. Section 15 (suitability and quality/ fitness) Implied that the conditions of the time can be used for the purpose of it, Section 16 (sale by sample)

Answer 4

“Not my doing” a way to void a contract by stating you cant take advantage of someone if they are illiterate.

Answer 5

- Legal Risk Management Plan: anticipates possible legal liability, and provides preventative and remedial strategies 5 Steps to Legal Risk Management Plans: 1. Audit of potential liabilities: interaction that business has with outside organizations or persons 2. Prioritize the risks identified in terms of likelihood and potential result 3. Develop strategies to deal with each risk: prevent legal liabilities from crystalizing and minimize consequences if it does crystalize a. Avoid the risk b. Reduce the risk – quality control issues c. Transfer the risk – have someone else do the work or have insurance d. Absorb the risk – do this through minimization of risk 4. Implement plan 5. Revise Plan

Answer 6

- Innocent misrepresentation occurs when the individual doesn't know that what he or she has said is false. - Negligent misrepresentation is when the person honestly thought that what he or she was saying was true, but should have known it was false. - Fraudulent misrepresentation is when someone knowingly makes a false statement that induces another to enter into a contract. - The importance of the distinction is in the remedies available. If the misrepresentation is innocent, only rescission is available. If the statement becomes a term of the contract, normal breach of contract remedies apply. If the representation was either negligent or fraudulent rescission and damages are available to the victim.

Answer 7

Agent must comply with the contract establishing the agency or he is liable Agent must be diligent in reprising Duty of care implied: whether paid or not, must be careful Duty of personal performance: cannot sub delegate the tasks

Answer 8

the agent has no real authority but appears to have authority to act on behalf of the principal on account of the past matter of transacting business or on account of certain practices in the trade.

Answer 9

A term previously agreed upon by the parties but not included in the final written form of the contract will not later be permitted to add to or contradict the contract.

Answer 10

In civil cases, certainty of 51% is needed for standard of proof. In criminal cases, standard of proof is “beyond reasonable doubt” at over 95% certainty.

Answer 11

Is an uncertain event in which the occurrence brings the promisor’s contractual liability to an end. One, both or all of the parties have reserved an out in certain circumstances. Example. In employment contracts, there is a misconduct clause.

Answer 12

Consideration is the price for which the act or other party is bought. So long as the promisor bargains for the other party to do something – or to promise to do something – that they otherwise would not do, the promisor will have received consideration.

Answer 13

Not fact. allows a signing party to escape performance of an agreement "which is fundamentally different from what he or she intended to execute or sign." A claim of non est factum means that the signature on the contract was signed by mistake, without knowledge of its meaning. Is grounds to impugn a contract, making the contract void.

Answer 14

In Tort Law, damages are rewarded to compensate the individual, to place the victim in the same position had the tort not occurred. Damages in Torts are monetary remedies. Contract Law is concerned with lost profit, so general damages include expected damages (cost of performance or Economic Loss).

Answer 15

Discharging a contract means to cancel the obligation, make the contract null and inoperative. Discharge by performance (when both the parties perform all the primary obligations both express and implied which are set out under the contract), discharge by agreement (both parties agree between themselves that the contract does not need to be performed and is therefore discharged), discharge by frustration (courts excuse persons for failure to perform their contracts in a wide variety of circumstance where the inability to perform is not their fault, typically thought of an “an act of God”. Performance by literally be impossible or if performance is physically impossible) and discharge by breach (a failure or refusal by one or both of the parties to perform one or all of the obligations imposed upon them under the contract).

Answer 16

A corporation is a separate person from the investors (shareholders). The investors are not responsible for the actions of the corporation, gives limited liability to the shareholders. To ignore separate entity principle means to pierce the corporate veil: Four limitations to the separate entity principle are taxation situations, for the residence of the corporation and the controlling shareholders, for agency principles (was the parent in constant control of the corporation) and in certain situations of fraud (if the corporation is found to be a sham).

Answer 17

Specific Performance (court order which requires the party in breach to completely perform their part of the bargain according to the contract) and Recission (old contract which was breached is rescinded or cancelled. A new contract may be written which more clearly addresses the different needs of each party.)

Answer 18

A legal commitment where one party (the guarantor) agrees to assume responsibility for fulfilling the debt or obligation of another party (the principal debtor) in case that party fails to do so. Often used in the context of loans, leases, or other agreements where there is risk that the principal might not meet their obligations. Commonly employed in situations where the primary party seeking a loan or entering into a contract does not have sufficient creditworthiness on their own

Answer 19

The Donoghue v. Stevenson case from 1932 is pivotal because it established the "neighbor principle," which expanded the scope of who could legally be owed a duty of care. Simply put, it means that we should consider the potential impact of our actions on those who might be directly affected by them. The lawsuit involved a woman who became ill after consuming ginger beer that contained a decomposed snail, although she had no direct purchase contract with the manufacturer. The ruling by the House of Lords in favor of the woman set a precedent that manufacturers owe a duty of care to consumers, allowing individuals to seek redress for negligence even when there is no contractual relationship. This case fundamentally shaped the responsibility producers have towards consumers and is a cornerstone of modern tort law.

Answer 20

Tort of Negligence is about a standard of care. When someone is liable in negligence, they are liable in having failed to live up to the required standard of conduct which is applicable to all activities in society. No intention is required in the tort of negligence. Six elements required for Tort of Negligence: Defendants conduct must be negligent The plaintiff must suffer some damage The damage suffered must be caused by the negligent conduct of the defendant There must be a duty recognized by law to avoid this damage The conduct of the defendant must be proximate cause of the loss; the damage should not be too remote as a result of the defendant’s conduct The conduct of the plaintiff should not be such as to bar their own recovery; they must not be guilty of contributory negligence and they must not voluntarily assume the risk. Intentional Torts are an intentional act proscribing intentional harm; harm cannot be reflective or defensive. For intentional, there must be three elements proven: Intention: Must be a voluntary act committed by the defendant Causation: it must be the operative cause (close in time with no intervening acts), nothing to do with motive. Various Proscribed harms: such as battery, assault, deceit, etc. If all three are proven, the plaintiff is entitled to compensation to place the victim in the position they were in had the tort not occurred. Professional liability is expanding because The practicing of the professions is becoming more complex, meaning there is a greater chance of making an error There is a tendency now due to economic pressure for professional to take more clients and files leading to a greater chance error and a greater chance the client will sue. Clients are more sophisticated and not willing to accept the word of professionals; they also tend to be more litigious and more demanding and aggressive toward professionals.

Answer 21

1. Past considerations - an action done before the promise was made, not valid because there is no exchange or bargain at the time of the promise. This aligns with principle of gratuitous promises 2. Pre-existing legal duty - party is already under legal obligation to perform a duty, any promise to perform that same duty is not considered valid. This type of promise does not provide anything additional or new to the contract, making it effectively a gratuitous promise 3. Seal (Nominal Consideration) - historically, the presence of a seal was considered sufficient to bind a party to a contract; however, for a contract to be enforceable under equity, substantial consideration is required beyond normal forms such as a dollar or peppercorn. This also ties back to a gratuitous promise

Answer 22

Is a restriction to common law damages. Is the duty of someone who was wronged to make reasonable efforts to limit the resulting harm. The damages the plaintiff can recover will not include what may have been reasonably avoided, preventing economic waste.

Answer 23

A minority shareholder cannot sell their shares except at a very discounted price because no one wants to pay to be a minority shareholder but are frozen out because they have no influence on management with a minority. Locked-in and frozen out can be remedied through provisions in a shareholders agreement. The most important clause is the shot gun clause which states that the minority shareholder can make an offer to the other party the ability to buy their shares at price per share (buying out the minority shareholder) or the ability for the other party to sell their own shares to the minority shareholder.

Answer 24

The elements necessary for equitable remedies are: the plaintiff must have clean hands (they cannot be guilty of unethical conduct) the plaintiff cannot have acquiescence (no long delays, must act promptly upon becoming aware of the misconduct) refuse to intervene if there is a third party for value requires substantial consideration

Answer 25

Limited liability provides protection for personal assets in protection of claims arising from negligence or misconduct. Limited liability can be applied to partnerships (Limited Liability Partnership)

Answer 26

Impugning a contract is to attack the contracts integrity. If the defendant can prove the contract is void, voidable or unenforceable, the contract will be impugned. The contract is void if: an element is missing or is uncertain, non est factum, there is a mistake of subject matter or is there is a mistake of identity. A contract is voidable if there is misrepresentation, duress, undue influence or diminished capacity. A contract is unenforceable if it does not meet the requirement of writing (if required written statutes are not in writing (Statute of Frauds)), if no receipt is presented under the Sales of Goods Act of chattels over $50 or if the contract has elements of illegality.

Answer 27

Agency Law is appropriate in Corporate Law because corporations are artificial entities and must act through human agents (Board of Directors). Apparent authority of an Agent also occurs in agency law through the creation of an Agency by estoppel, where an agent may acquire apparent authority from a past manner of transacting business by the principal or from trade custom.

Answer 28

The corporate veil is the Separate Entity Principle that protects the shareholders of a company from being personally liable for company wrongdoings. The corporate veil is important because it has resulted in a great deal of corporate prosperity.

Answer 29

A barrier which prevents a person from denying the truth of certain facts when this person has led another person to believe that certain facts are true and to act and rely upon these facts. The agent has apparent authority (has no real authority but appears to have authority to act on behalf of the principal) and is holding out (has used words or behaved in a way that represents the other person as their agent OR the agent claims they are an agent and the principal does nothing to stop it).

Answer 30

Criminal Liability - Can be held criminally for ones acts Professional Liability - In breach of the code of conduct and can be disciplined, which is really violating regulations Contractual Liability - Professionals have an implied obligation to perform their services with due carre, and any breach of this contract can lead to damages Fiduciary Liability - Pertains to professionals in positions of trust, such as trustees, who are expected to perform their duties with care, skill, and good faith Tort Liability - Liabilities airising from both intentional acts and negligence. Professionals may face tort liability particularly due to the complexities and high standards of their practices, leading to potential errors

Answer 31

Duties of the Directors are owed to the corporation, NOT the shareholders. Directors are in charge of management of the corporation Directors are bound to exercise reasonable care, meaning they cannot be negligent in carrying out duties, and they must act in good faith.

Answer 32

1. Name of Company - must be distinct and available for use 2. Corporate Head Office - Location of primary business office 3. Nature of Business - Description of business activities/purpose 4. Types of Shares and their characteristics

Answer 33

one general partner and one or more limited partners. The general partners manage the business and are personally liable for the partnership's debts, while the limited partners contribute financially but do not partake in management decisions. Limited partners enjoy limited liability, meaning they are only liable up to the amount of their investment. The danger for an investor who participates in the management of a limited partnership is significant. If a limited partner becomes involved in management, they risk being treated as a general partner. This involvement can strip them of their limited liability protection, potentially exposing them to unlimited personal liability for the partnership's obligations

Answer 34

Termination without case or without providing reasonable notice of termination Remedies for Wrong Dismissal: Reinstatement - Rarely used, returns employee to former position Damages for Wrongful Dismissal - Typically, court awards financial compensation intended to cover period of reasonable notice that should have been given

Answer 35

1. Sales of Personal Chattels - (tangible movable goods) 2. Specific and Ascertained goods - When goods are specific and identifiable at the time the contract is formed Contracts for the amount of $50 or more - Transactions involving goods values over $50 must typically be in writing

Answer 36

An insurable interest exists where the insured derives a financial benefit in the continuing existence of the insured object or suffers a financial loss from the loss of the object. Compensation will be paid by the insurer to the individual named as a beneficiary.

Answer 37

An injunction is a court ordered restraint on a party to act in a particular manner. In contract law, injunction restrains a party from committing a breach. Example. In the sale of a business contract, the vendor is prohibited from competing through a non-competing clause; if they compete, you can get an injunction.

Answer 38

In tort law, presumption typically refers to assumptions made by the law that must be either proved or disproved by evidence. In contract law, there is a general presumption that the contract is valid and enforceable, which includes the assumption that it does not violate public policy or laws. If questioned, it would be up to the party challenging the contract's validity to prove that it offends public policy or violates the law. This presumption ensures that contracts, as foundations of commercial law, are respected and enforced unless there is a significant reason not to do so.

Answer 39

Caveat Emptor means “let the buyer beware”. The buyer alone is responsible for checking the quality and suitability of goods before a purchase is made. The Sale of Goods Act has created terms to protect the buyers and form exceptions to the Doctrine of Caveat Emptor. The Sale of Goods Act holds the seller responsible for minimum quality guarantees and is only applicable to real property (land) and personal property. It is an implied condition that goods sold by description will conform to the description (SOGA Section 14). It is an implied condition that the goods are suitable for the purpose for which they are bought but only when the buyer tells the seller the particular purpose of the goods, makes known that they rely on the seller’s judgement or the seller sells these goods in the normal course of business (SOGA Section 15). It is an implied condition when a sample of the goods to be sold has been provided, the actual goods supplied will correspond to that sample in type and quality (SOGA Section 16).

Answer 40

Sine Qua Non means “But for”. Used in tort law to describe causation of a tort; courts have adopted a common-sense approach to assign blame by using the sine qua non test. When a connection exists between a particular act and an injury when the injury would not have arisen but for the act. Example. If the accident would not have occurred BUT FOR the defendant’s negligence then his conduct is a cause of the injury.

Answer 41

Lapse of an offer is when an offer is not accepted. An offer may lapse when 1) the offeree fails to accept the offer within the time specified in the offer, 2) when the offeree fails to accept the offer in a reasonable time if the offeror has not specified any time limit, 3) an offer lapses when any of the parties dies or becomes insane prior to acceptance.

Answer 42

Requirements in a corporation’s constitution and governing act that require certain acts to be performed in a specific manner if they are to be valid. For example, under by-laws, all contracts must be in writing or signed by each board of directors.

Answer 43

looks to the intent of the parties in drafting their agreement. It stresses the circumstances surrounding the contract, negotiations leading up to the contract and the knowledge of the parties and any relevant facts as due by the reasonable person.

Answer 44

a. The offer: An offer is a tentative promise made by one party, the offeror, subject to a condition or containing a request to the other part, the offeree. When the offeree accepts to offer by agreeing to the condition or request, the offer is transformed into a contract. The promise is no longer tentative: the offeror is bound to carry out his promise while the offeree is bound to carry out the condition or request. The offer is the contract in draft- if there is an acceptance you are bound. Not much can be done to get out of the contract once the offer has been accepted. If an offer lapses, it is not accepted and may lapse for a number of reasons: i. The offeree fails to accept the offer within the time specified in the offer ii. When the offeree fails to accept the offer in a reasonable time if the offeror has no specified any time limit iii. An offer lapses when any of the parties dies or becomes insane prior to acceptance An offer may be revoked at any time before acceptance. There are 2 ways to keep an offer open and enforceable: when the offer is made under seal and if an option contract is created (someone promises to keep the option open to agreement). A volley of offer or counteroffer can be made where bargaining takes place back and forth; an offer must be accepted without variation. b. Acceptance: acceptance must be made in a positive, unequivocal form whether by words or conduct. The offeror has in general full control over the mode and method of acceptance and therefore can state the required methods of communications of acceptance and invalidate or prohibit others. An offeror will not be bound unless and until he or she receives the acceptance and before they revoke. Rules of Acceptance i. The offeror has full control of the method of acceptance ii. If the offeree selects mail, the mail exception applies iii. If some other method other than post is preferred, offeree may still accept by post but offeror is not bound unless and until acceptance reaches offeror. Prior to offer’s lapse, there must be actual knowledge of it. c. Consideration: Consideration is the price for which the act or other party is bought. So long as the promisor bargains for the other party to do something – or to promise to do something – that they otherwise would not do, the promisor will have received consideration. Categories that form consideration: property, services, money and restraint on freedom (non-compete clause). A gratuitous promise is a promise without a returning consideration and is not enforceable by laws of contract. Rules of Gratuitous Promise i. Past consideration: a reward for an act previously gone gratuitously is not binding. ii. Existing legal duties and consideration: if party A is bound by an exsiting contractual duty to party B, a later promise by B to pay A something extra to perform the same obligation is not binding. iii. Rule in Foakes and Beer: The ratio of that case is that a creditor’s gratuitous reduction of debt for a payment is not enforceable. The reason is no consideration was exchanged. d. Intention to create legal relations i. In order to have a contract there has to be the intention on the part of both parties to be legally enforceable agreement. The law presumes that it exists. The plaintiff does not have to prove this step; it is up to the defendant to rebut their existence. e. Capacity i. Capacity is the ability of the parties to bind him or herself in contract.Each party to the contract must have capacity; mental competency; able of assessing the consequences of making a contractual promise that will create enforceable rights and obligations. If incapacity exists, the contract is void. Types of incapacity include no capacity and states of diminished capacity. f. Legality of the Contract i. The object of the contract must be legal. In essence the contract and or any of the activities contemplated there under or any of its terms cannot offend public policy (court’s view of what is appropriate for society and will not enforce any contracts inappropriate for society) nor violate any law. There is a presumption that is does not. If the presumption is wrong the contract is void.

Answer 45

States that if a good faith attempt is made to perform the requirements of the agreement even if it does not precisely meet the terms of the agreement or statutory requirements, the performance will still be considered complete if the essential purpose is accomplished.

Answer 46

PA void contract means a law was never formed and therefore, is no contract. A voidable contract is where misapprehension or misrepresentation occurs, rendering the contract unfair is enforced. The distinction between void and voidable contracts is important when an ISTP4V is involved. In a void contract, no title passes and consequently an ISTP4V cannot obtain a good title from a person that obtained the goods under a void agreement. In a voidable contract, will remain enforced until it is declared otherwise. Title may pass under it from one contracting party to the other. The recipient of the title may then transfer the title to an innocent third party and the innocent third party may obtain a good title to the goods even though the intermediate title holder acquired the title by means that render the initial transaction voidable.

Answer 47

Public company defined as not being what is defined as a private company under the security act Private Company 1. Right to transfer shares is restricted 2. Number of shareholders limited to no more then 50 3. Any invitation to the public to subcribe for its securities is prohibited

Answer 48

1. Royal Charter Corporation: created through royal perogative 2. Speciial Act Corporation (statutes) 3. General routine acts

Answer 49

1. Articles of incorporation - foundation of corporations constitution, requires 2/3 approval to change, is entrenched 2. Bylaws - not entranched, can be changed by shareholder vote. They regulate the general governance of the corporation, including board of directors, signing authority etc 3. Participants in the corporation Shareholders: Investors who purchase shares and have limited rights Directors: responsible for managing the corporation, directors and agents Officers: Manage day-to-day operations, appointed annually

Answer 50

1) effect of publicly filed documents - historically, public was considered to have notice of contents of pubicly filed documents. If these documents restricted a corporation or its officers from performing certain acts, third parties could not rely on the officers apparent authority to perform those acts (has been abolished) 2) Indoor management rule - sometimes, a corporation constitution or governing act requires specific procedures to validate certain actions. This rule allows third parties to assume the internal corporate actions are regular unless there are obvious signs against 3) Pre incorporation contract - corporation cannot ratify contracts made in its name before its existence. Thus, individuals who enter into contracts on behalf of a corporation before its formally established cannot bind the corporation, nor are they personally bound by these contracts

Answer 51

1. managers must undertake legal audit of the operation 2. risks must be prioritized 3. managers must develop effective strategies to deal with each risk 4. Business must implement a plan 5. Revise the plan regularly

Answer 52

Quantum Meruit - agent must be paid reasonable amount Reimburse agent for all reasonable expenses 3. AS long as agent was acting within the scope of his authority, the principal is liable

Answer 53

1. Compliance with contract 2. Agent must notify the principal of any relevant event 3. Duty of care

Answer 54

1. Express agreement - oral or written 2. Ratification - upon ratification, a contract is made retroactively between principal and 3rd party and the contract between agent and 3rd party is dissolved 3. Agencies created by estoppel (precluded from denying) - bar or barrier which prevents a person from denying the truth from certain facts 4. Agency by necessity - allows some person to act on behalf of another when beneficiary is unable to grant permission to do so

Answer 55

Compensation of the victims and should not engage in punishment

Answer 56

Special Damages - losses that can be calculated with accounting accuracy up until a particular date (loss of wages) General Damages - losses that cannot be calculated with accounting certainty (future medical costs) Punitive Damages - are ordered, are discretionary, and given when the defendant is guilty of conduct that can be described as vindictive, aggravated, or penal

Answer 57

A contract is an agreement that requires the mutual ascent of at least two parties to do something or, conversely, to refrain from doing something. The parties then, by their mutual ascent or agreement create rights and duties that did not exist in their particular relationship before that point in time They have in effect, voluntarily created legal obligations or laws governing their relationship for their own purposes

Answer 58

1. Rejection of the offer by the offeree terminates the offer 2. Counter-offer - rejection and termination of the original offer 3. Lapse 4. Revocation - withdrawal of an offer that presents acceptance

Answer 59

Age of majority, common law 21, in Manitoba 18 A contract is unenforceable against the minor but is enforceable against the other side. Voidable by the minor Minors must pay reasonable price for necessaries purchases, but need not to pay the contract price Can also go into beneficial contracts of service, to work 16, labour contracts 15, with guardian and principal consent and certificate from gov

Answer 60

States that warrants cease to exist after closing so we must create a clause to correct this

Answer 61

Pressuring another party, compromising their free will to enter into a contract 3 elements 1. prove that there is a special relationship between victim and dominator 2. The party alleging undue influence must satifsy the court that the circumstances were such that domination was probable 3. Reversal of the burder of proof. If both 1 and 2 exists, the burder then shifts to the dominant party

Answer 62

If a contract falls within the scope of the statue of fraud there must be a memorandum in existence containing the critical terms, or essential terms of the contract

Answer 63

Statute of fraud a) promise by an executor or administrator of an estate to answer for damages b) guarantee of the debt of another, dosent include an indemnification c) agreement made in consideration of marriage, prenuptial d) Agreement concerning interest in land e) Agreement not to be performed for 1 year f) retification of an infants contract

Answer 64

enforces contracts concerning land if the plaintiff can show that they initiated performance of the contract with reliance on it must regard land plaintiff must be the party performing act Was made to blank the negative effects of the statute of fraud

Answer 65

The courts will accept the interpretation which goes against the interest of the party that created it

Answer 66

1. statutorily implied terms 2. common law implied terms

Answer 67

implied into employment contracts, courts have implied the term into non-collective bargaining - if an employer wants to terminate an employee, they must give the employee reasonable notice

Answer 68

Contract cannot as a general rule confer rights or oppose obligations arising under it on any person except parties to a contract

Answer 69

Allows for the reallocation of the benefits already exchanged

Answer 70

Warranties - minor contractual term where you only recieve damages Conditions - breach of essential terms of the contract 3. Doctrine of fundamental breach - super charged condition, when it is breached, allows the grieved party, as if it is same options as the condition, but they have an effect of negative or negate exception of liability clauses. Does not exist

Answer 71

Express Reputation of Liability - expressed declaration of one party to another that they will not perform as promised; the innocent party has an election. The promise can treat the contract as at an end and sue for damages. Party can insist on performance until latest data contemplated in contract Non performance - one party makes promise where they make it impossible to fulfill Failure to Performance - Failure to perform at all or you're Tendring actual performance that is not equivalent of the promise

Answer 72

Courts are willing to recognize substaintial performancce by the promisor through defective or incomplete in minor respects to keep the other party bound. A party in breach can only have damaged awarded against it but it is otherwise denied the election to discharge the contract In essece, it insures that a breach of a condition in a minor respect is not fatal; it maks the condition equivalent to a warranty

Answer 73

PV house allowed American coal company to mine their property but the family wanted to move back. Clause was put in so the company must put the land back. The issues was the ACC said if they spent the money to rehabilitate the land it would cost more than the value of the land

Answer 74

Relationship between person and inanimate object

Answer 75

1. Choses in action - intangible 2. Choses in possession (chattel) - tangible, visable, movable

Answer 76

1. nature of the article - inherent characteristics of the item itself, whether its movable or not 2. mode of attachment - how it is attached to the property. bolted, nailed, glued etc 3. circumstances in which it was attached - situation at the time it was installed 4. purpose to be served by the attachment - why the item was attached and whether it was intended to enhance the property permanently 5. position of the parties - roles and relationship of parties involved, such as landlord-tenant, buyer-seller

Answer 77

Bailment is a legal relationship where physical possession of personal property is transferred from one party, the bailor, to another, the bailee, without transferring ownership. The bailee agrees to hold the property temporarily for a specific purpose, such as repair or storage, and is responsible for returning the property after the purpose is fulfilled. The bailee must exercise appropriate care in handling the property to prevent loss or damage. If the bailee fails to meet these obligations, they can be held liable for any resulting damages to the property.

Answer 78

Choses in Action - intangible right IP includes: - copyrights: pertaining to this gives a right to copy. Covers only original work - patents: Government-produced monopoly that gives the investor the right to sell, produce or otherwise profit from a specific invention Patent Act: invention must be new and has not been introduced to canada or anywhere within the last year - trademarks : Any term, symbol, design, or combination that identifies a specific business, service or product that distinguishes it from the competition - industrial design: They have their own statutes, have a registrartion process, and proetectd in fed court - trade secrets and confidential information: no statutes but its still under protection from prov courts

Answer 79

Another person does an act that only the owner has the right to do. Tries to obtain a benefit or use by sale, use, reproduction, or distribution

Answer 80

Land and everything permanently attached to it. Includes buildings constructed on land, any of the minerals below the land, any airspace above it

Answer 81

Fee simple estate - most complete form of ownership and most common type of real estate ownership. Owner has unconditional and full ownership rights to the property, including the rights to use, sell, lease, or pass it on Life estate - property rights are greanted to an indivudla for the duration of their life. Owner known as tenant, has the right to use and benefit from the property during their lifetime, but cannot sell it or leave it to heirs. upon death, property reverts toa. designated remainder man or returns to original owner Leasehold estate - temporary right to occupy or use land, where the tenant holds rights to the property as stipulated in lease agreement

Answer 82

Solution to the issue of lack of houses and property Condominium act - prevent the granting of fee simple estate in individual units of a multiple unit building must have: condominium plan - outlines boundaries of ownership condominium declaration - articles of incorporation, percentage ownership, various specific majorities for unit holders, board of directors etc Bylaws - condominium fees, insurance

Answer 83

Right enjoyed by one land owner over the land of another for special purpose. Enforced by contract. needs to be dominant tenement (piece of land that is to benefit from) and a servient tenement (land subject to the easement) Once easement is established, it binds subsequent owners and runs with the property Right of way: most common easement, being able to cross over someones land Prescriptive easement: easement without grant or contract Mineral rights: in MB, any deposit of materials owned by province Statutory easement: hydro lines

Answer 84

MB's system, as each new transaction concerning a piece of land is submitted for registration the land title office carefully reviews documents before approving them. At the time of recording the land titles office brings all entries up to date

Answer 85

Means to transfer funds betwen two parties toa. transaction without physical exchange of cash Three types: - promissory notes - cheques - bills of exchange

Answer 86

Expressed or implied promise to pay specific sum of money to the order of a specific person or bearer, thus a NI can be used to transfer ownership of intangible rights from one person to another

Answer 87

- Notice to promissory of the assignment - Assignee can only recieve rights assignor has and is subject to the equities of them - Assignee and assignor must join to sue a defaulted promissory

Answer 88

- Holder need not give notice to the promisor that rights have been transferred - The third party can obtain better title than the assignor. not subject to equities between original parties - Subsequent holder can sue debtor by himself

Answer 89

- Promise/order in writing - Obligation must be for money payments - Sum of face of instruments must be for a certain fixed sum - Promise/Order must be unconditional - Instrument payable at fixed or determined time or upon demand - Whole instrument must be negotiated - Instrument must be signed by drawer/payer/debtor

Answer 90

Assignment: transfer of a contractual right, almost anything applies - deals with choses in action - cannot transfer liabilities Rules for assignment - you have to give notice to promisor - the assignee can only recieve the right to the assignor has and is subject to equities with the existing parties in the contract Endorsement & delivery: payable to A to negotiate, A must endorse it and deliver it - sign on reverse side

Answer 91

NI unconditional, in writing, paying specific sum, paid on demand, unlike bill of exchange, a PN is prepared by the maker

Answer 92

Insurance is defined as a contract in which one party, the insurer, agrees to compensate the other, the insured, for loss on specific subjects due to specific perils in exchange for a premium. It’s not just about shifting risk from the purchaser, but also distributing it among a group that shares in the risk. Insurance contrasts with a wager because of the principle of insurable interest, where the insured must have a financial stake in the insured object's existence. The insurer can seek subrogation to recover from any third party responsible for the loss. Insurance contracts are based on utmost good faith, requiring full disclosure of relevant information from the insured. This concept is an exception to the 'buyer beware' principle. Insurance can be for profit or organized as a mutual company, with profits returning to policyholders. In demutualization, policyholders may receive shares in the corporation, aiming to raise funds and increase efficiency.

Answer 93

Employment contracts contain both implied and explicit terms. Implied terms come from statutes (like workers' compensation and minimum wages) and common law (like reasonable notice for termination). Contracts may also include negotiated terms such as duration, compensation, and duties, as well as clauses like non-competition and confidentiality. Courts can void non-competition clauses if they're too restrictive. Employers are vicariously liable for employees' actions within their employment scope. While employers usually must give reasonable notice for termination, they can dismiss for just cause (like misconduct) without notice. Chronic illness can complicate the employment relationship.

Answer 94

All about security for debt Different types: - conditional sales agreement - mortgages ex: personality - conditional sales contract - the seller retains an interest or is actually titled to the goods. Generally it means that the transfer of the title to the buyer is conditional to the buyer along completion upon scheduled periods chattel mortgage - the debtor has possession but the title in the goods is transferred to the creditor - this actually transfers the title - both of the above are NI's

Answer 95

Agency is a relationship in which one person, known as an agent, is authorizod to bring another party for whom they act, known as a principal, into contractual relations with third parties. In a sole proprietorship this may be necessary because they cannot do everything on their own. In partnerships, all partners are hoth agents and principals of the partnership and thus have fiduciary duties. As a result one partner can create liabilities that the other partner will be responsible for. In corporations, they are considered separate entitics, but they can't do much by themselves because they are artificial. So corporations must act through human agents: board of directors. One of the consequences is that each director is a fiduciary because they are an agent. Agents can create contractual liability for their principal and usually exist by contract or through estoppel. Principles of the law of ageney manifest themselves through agency by estoppel in business organizations. There are two types; apparent authority and holding out. Apparent authority is acquired fiom a past manner of transaction business by the principal or from trade custom. Such circumstances may make it appear to third parties that the agent has authority for the contract at hind, when in fact they have no expressed authority for the contract at hand. There are 3 areas where the law of agency manifests itself in business organizations. 1) The ellect of publicly filed documents - the public was deemed to have notice of the contents of filed documents whether they had read them or not, and thus could not rely upon what otherwise might be the officer's apparent authority to perform those acts. However this principle does not exist anymore 2) 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. 3) Pre-incorporation contract - a) the corporation is bound by the contract and is entitled to the benefits thereof as if the corporation had been inexistence at the date of the contract and had been a party thereto, and b) a person who purported to act in the name of of on behalf of the corporation ceases to be bound by or entitled to the benefits of the contract.

Answer 96

Caveat emptor means "let the buyer beware". The doctrine of caveat emptor is the principle of law according to which the buyer assumes the risk for the conditions of the objects purchased in absence of any terms contrary to the contract; misrepresentation. Essentially the buyer must take care and be reasonably cautious. However the doctrine does recognize certain exceptions to prevent the abuse of unscrupulous sellers. The sale of goods act has created or codified terms which are to protect the buyers and it forms exceptions to the doctrine of caveat emptor. Some say that the sale of goods act is a limitation on caveat emptor, however these exceptions are consistent with the doctrine; they refer to situations where the buyer cannot inspect the goods or when there is reliance on the seller by the huyer for information. The sale of goods act was passed in the UK parliament through a statute and applies only to the sale of goods, which includes all personal chattels other than choses in action and money. The sale of goods act also requires that the contract be in writing if the goods are in excess of S50 dollars. The implied conditions are: 1) seller's title - in offering to sell goods, the seller impliedly represents that he has the right to do so, 2) description- goods sold by description will conform to the description. 3) suitability and quality or fitness -the goods are of a type that is suitable for the purpose for which they are bought, but only when the buyer expressly makes known that he relies on the seller's skill or judgement, and 4) sale by sample - when a sample has been provided, the actual goods supplied will correspond to that sample in type and quality.

Answer 97

In tort law there is two blame worthy states: negligence and intent. Intentional torts are those torts cause with intention, example: battery, deccit. or false imprisonment. Negligent forts occur when someone has failed to live up to the required standard of conduct, which is best described in the element of standard of care. Differences: Intentional torts are based on the presence of 3 elements: 1) intention - must be a voluntary act committed by the defendant, which is presumed to exist. 2) Causation - it must be the operative cause, close in time with no intervening acts, and 3) proscribed harm. On the other hand, negligence does not require the element of intention, instead there are 6 elements required: 1) the defendant's conduct must be negligent - in breach of the standard of care. 2) the claimant must suffer some damage, 3) the damage suffered must be caused by the negligent conduct of the defendant, 4) there must be a duty recognized by law to avoid this damage. 3) the conduct of the defendant must be a proximate cause of the loss; it cannot be too remote a result of the defendant's conduct, 6) the conduct of the plaintill should not be such as to bar his or her recovery - guilty of contributory negligence or volenti. Similarities: 1) The test of causation is the same for both types of torts, its called sine qua non, 2) both types use the same standard of proof - the balance of probabilities which requires 50% +1. 3) they have the same category of damage measurement - special damages, general damages, and punitive damages. 4) they both focus on compensation for the victim rather than punishment of the wrongdoer, so damages will be rewarded. Professional liability is expanding for many reasons: 1) because the practice of professionals is becoming more complex so there is greater chance of making an error, 2) there is a tendency for professionals to take on more clients and files due to economic pressures. 3) clients are more aggressive, sophisticated and litigious. 4) normal rules of negligence law are being applied to professionals and thus professional liability is expanding due to various court cases. Example, the Donoghue v. Stevenson cuse established the neighbour principle and the Hedley. Byme v. Heller case which expanded liability to third parties for negligence misrepresentations.

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