Contract Law

Lecture 7
Confidential Information
• Definition: material exchanged in a relationship that prohibits recipient
from sharing it or using it.
• Material may be confidential by agreement or by common law
• Liability may arise when confidential information:
– is improperly used by person entrusted with information
– is improperly disclosed
Breach of Confidence
• Definition: occurs when person improperly uses confidential
information it has been entrusted with
• Plaintiff must prove:
– Information was of a confidential nature
– Info was disclosed to defendant in circumstances giving rise to
obligation of confidence, and
– There was a misuse or unauthorized use of the information
• Available remedies are broad
Trade Secrets
• Special type of confidential information such as a formula or recipe or
even an invention that is used to obtain advantage over competitors
– E.g. KFC secret herb & spice recipe
• Can be exploited indefinitely, as long as the information is kept secret
• Can be a trade secret, until it is patented. Once it is patented, it
becomes a publicly disclosed property right.
Secrets and Risk Management
• Risk management
– Use of non-disclosure agreements and strict information
access controls to manage risk
– Worker may claim information as their own
▪ Expense required to prove ownership of idea
– Outsider may independently discover idea
▪ No protection against coincidental discovery
– Tell recipients info is confidential when disclosing
Plain Language
● What is plain language? The opposite of legalese? What is legalese?

● “Legalese is a language that relies on archaic language, poor grammar and sentence
structure, repetition, surplus language, and legal jargon. The predicate for use of
legalese seems to be that the parties will be represented by attorneys, and their
attorneys will understand the documents even if their clients cannot. Although such an
assumption may assist in promoting legal employment, it appears no more defensible
than having legal documents written in Arabic in reliance on the parties using persons
familiar with Arabic to explain the contents of the documents to their clients. Since legal
documents will govern the rights and obligations of the parties for whom they are
written, it seems only proper that such parties should be able to read and understand
them. The use of legalese has been criticized by the courts.” link
Translated
● Legalese is jargon used by lawyers, and is about as useful as writing in
Arabic.

● Most lawyers and institutions pay homage to plain language, but it’s difficult
to achieve -
● Communications Policy of the Government of Canada requires use of plain
language in all government communications link
● Canadian Bankers’ Association tries to draft mortgages that are
understandable. Do they? link
● Ontario Securities Commission link
Using Plain Language in Contracts
• There is fear of using plain language

• There is a fear of missing something:

• From a lawyer’s blog - Most lawyers follow tradition. Most judges do too. Having
a pleading or motion that bucks at tradition by simplifying things to plain
language puts yourself at risk of being misunderstood by the judge with 30
years experience
The law as tradition
● Legal history - It is a conservative profession. Why?

● Law Latin was used for legal opinions in English courts until 1730
● Law French was based on Old Norman French - following the Norman
conquest of England in 1066
Latin words
● Bona fide - in good faith
● Caveat emptor - let the buyer beware.
● Consensus Ad Idem - meeting of the minds
● Contra Proferentum - Against the party drafting the document
● Ex Parte - Without notifying the other party
● Prima facie - at first look or “on its face”
● Pro bono - for the public good
● pro rata - from the rate - A calculation adjusted based on a proportional value
● quantum meruit - as much as it deserves; as much as she or he has earned
● quid pro quo - this for that
● Subpoena - under penalty
● Void Ab Initio - void from the beginning
Law French
● Attorney - appointed
● Chattel - movable property - cattle
● Defendant
● Estoppel - "plug, stopper"
● Voir Dire - A hearing within a trial to see if it should be said
● Force majeure - “superior force”
● Torts - civil wrongs.
Excess language
● “The parties mutually covenant and agree” - “We agree”?
● “This is my last Will and Testament” - “This is my Will”?
● “Nominate, Constitute and Appoint” - Why not “appoint”?
● Write for the reader; speak for the audience listening.
● Make it easy to follow. Your reader would rather do something else.
● “If I had the time, I would have written you a shorter letter.” link
Plain language advice
● The Elements of Style, William Strunk Jr., published 1918 link
● Use the active voice
● Put statements in positive form
● Omit needless words
● Avoid a succession of loose sentences
● Express coordinate ideas in similar form
● Keep related words together
● In summaries, keep to one tense
Example 1
Title to property in the goods shall remain vested in the
Company (notwithstanding the delivery of the same to the
Customer) until the price of the Goods comprised in the
contract and all other money due from the Customer to the
Company on any other account has been paid in full.
Example 2
The said Lessee covenants, promises, and agrees that it will not carry on or suffer
to be carried on any business in the herein demised premises under a name or a
style other than the name of the said Lessee as designated herein, nor call or
suffer the herein demised premises or any business carried on therein to be called
by any name other than such name, without the written consent of the Lessor first
had and obtained.
Example 3
In the event of failure of Purchaser to pay any instalment when due, whether such failure be
voluntary or involuntary, the only right of Seller arising thereunder shall be that of termination
of this Agreement and retention of all sums previously paid as liquidated damages and not
as a penalty, because Seller has taken the property off the real estate market, incurred
expenses in selling the property to Purchaser, turned away other prospective purchasers and
incurred or will be incurring development and other expenses in connection with the
property. Upon such termination, any and all rights Purchaser may have in the property shall
immediately terminate and Seller may return the property to its inventory and resell it free
and clear of any claims, liens, encumbrances, or defects arising out of this Agreement or
Purchaser’s rights in the property. [138 words]
Example 4
For all personal items, in a Will,

To deliver to my said wife for her own use absolutely if she survives me for a period of thirty
(30) days, all articles of personal, domestic and household use or ornament belonging to me
at my death, including consumable stores, and all automobiles and accessories thereto then
owned by me, provided that if my said wife shall predecease me or shall survive me but die
within a period of thirty (30) days of the date of my death, the said articles shall be divided
among my children living at the date of my death in such manner as they may agree upon,
or, failing agreement, in such manner as my Trustees in their absolute discretion deem
advisable and not necessarily in equal shares. Any such articles not transferred to my
children shall fall into and form part of the residue of my estate to be dealt thereof.
Questions and Structure
Discussion of Assignment Two

Start by asking these questions: Who? What? When?

Where? Why?

Structure/Method