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CHAPTER 1
RISK MANAGEMENT AND SOURCES OF LAW
CONTENTS
TEACHING APPROACH
1. An Interactive Approach
2. Law as a Process
3. The Canadian Charter of Rights and Freedoms
DISCUSSION BOXES
1. Business Decision 1.1—Risk Management
2. Ethical Perspective 1.1—Rules and Laws
3. You Be the Judge 1.1—Charter Remedies
4. Business Decision 1.2—Law, Equity and The Trust
REVIEW QUESTIONS
CASES & PROBLEMS
CASE BRIEFS
TEACHING APPROACH
An Interactive Approach
The teaching philosophy adopted for this introductory chapter is critically important
because it will set the tone for the entire course. While it is perhaps inevitable that
students may not be fully prepared during the initial session, they nevertheless must be
drawn into the material. This chapter was designed with that need in mind.
Some topics almost inevitably must be approached in a lecture format. It is, for instance,
rather difficult to generate animated discussion regarding the legislative process through
1-1
Copyright © 2014 Pearson Canada Inc.
which a bill is transformed into a statute. Those materials should be treated accordingly.
Students should appreciate the means by which laws come into existence, as well as the
opportunities that business people have to influence that process. Little would be gained,
however, from excessive detail or extended debate.
The great bulk of the chapter, in contrast, has been structured to foster discussion and to
allow students to develop skills that they will require throughout the course (and into
their professions). That is true from the opening pages of the text. Rather than tell
students why, as business students, they should study law, let them discover the reasons
for themselves. Ask them to imagine themselves in business. Take suggestions until a
simple model emerges. Then continue on with the exercise using that simple model. Ask
why some businesses succeed, while others fail. Push the students toward the realization
that the answer depends a great deal on risk management, both negatively and positively.
A successful business person is able to make decisions that avoid harmful events and that
exploit profitable opportunities. That proposition will logically lead to the next series of
questions. How do business people effectively manage risks? What do they need to
know? For present purposes, the important answer is “law.” Allow the students to explore
some of the various ways in which a knowledge of the law can help a business. Once
again, make sure that they consider negative and positive possibilities. It is important to
highlight both sides of that coin. Risk management most obviously includes the
avoidance of liability, but it also includes, for instance, the ability to use a contract to
hold another party to a promise. Students must realize early on that, from a business
perspective, the law is not simply a series of prohibitions, but rather a rich and varied
collection of resources that can be used for the effective management of risk. That is why
they must be familiar with it.
Law as a Process
The various discussion boxes are valuable from a purely pedagogic perspective: they help
to keep students engaged and interested. At least implicitly, however, they also serve two
other useful functions. First, by working through the exercises, students will begin to
develop essential skills. Risk management requires action. Students therefore should
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Copyright © 2014 Pearson Canada Inc.
Chapter 1–Risk Management and Sources of Law
Although that proposition may initially seem trite, it underlies a significant challenge in
teaching business law. Students very often arrive in class with an assumption that the law
consists of a long list of rules, and that legal education consists of memorizing as many of
them as possible. Somewhere out there, it is thought, there is a really big book with all of
the answers. That, of course, is not true. Law is constantly evolving to reflect changes in
society. (In the business context, for example, a rule of contract that was developed in the
nineteenth century may no longer be appropriate. Chapter 18, which deals with Electronic
Commerce, contains a number of illustrations.) Furthermore, those changes are
introduced by human agents, typically judges and legislators, who struggle to strike a
delicate balance between competing interests. (The text’s discussion of the Charter
clearly points in that direction. A statute that prohibits the sale of violent pornography
violates freedom of choice, but it is nevertheless justifiable given the current state of
Canadian society.) The material should be presented in a way that highlights the
malleability of rules and that stresses the human face of the law. Students should realize
that a rule that they learn today may be discarded tomorrow if judges or legislators adopt
a new position on a particular issue. Consequently, quite often, what is important is not
the memorization of rules, but rather an understanding of the process.
The Discussion Boxes can also be used to debunk another common misperception. Many
students tend to equate law and “justice” (usually with the assumption that “justice”
coincides with their intuitive notions of right and wrong). The discussion engendered by
Ethical Perspective 1.1 can be used to dispel that myth. Students should realize that while
there is considerable overlap between law and morality, those two categories are not
always consistent. Indeed, in an increasingly multicultural society, moral consensus is
becoming even more difficult to obtain. Consequently, the law very often must be content
to strike a balance between competing interests in a way that will inevitably offend some
moral perspectives.
1-3
Copyright © 2014 Pearson Canada Inc.
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"Vai niin", sanoi presidentti; "jatkakaa".
Kaksi todistajaa.
Oli katkeraa ivaa, että mies, joka oli niin kauvan urheillut kuoleman
kanssa ja hieronut sillä kauppoja, tuotiin itse tänne kuolleena,
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kujeistaan ja kemiallisista sekoituksistaan, hänen kamalista
tiedoistaan ja siitä salaperäisyydestä, johon hän oli verhoutunut.
Manala oli saanut hänet kolkon pään, mustan sydämen ja kaikki.
Niin tylsinä kuin hänen aistinsa vielä olivatkin, huomasi hän, että
kuningas istui kumartuneena eteenpäin, omituinen terävä ilme
kasvoillaan,— että tuomarit näyttivät hämmästyneiltä, että
kardinaalinkin kalvaat piirteet olivat hieman punehtuneet. Ja
yksikään heistä ei katsonut häneen. He olivat kääntyneet poikaan,
joka seisoi pöydän päässä papin vieressä. Ikkunasta osui kalsea
valo hänen kasvoilleen, ja hän puhui. "Minä kuuntelin", kuuli
madame hänen sanovan. "Niin."
"Ja kuinka pitkä aika kului ennen kuin madame de Vidoche tuli?"
kysyi presidentti, nähtävästi pitkittäen kuulustelua, jonka alkuosasta
syytetty ei tiennyt mitään.
"Varma olen."
"Ja madame?"
"Lemmenjauhetta."
"Molemmat."
"Niin."
"Niin."
Poika myönsi.
"Rolandin verestä?"
"Missä asuit?"
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