Midterm Study notes (chapters 4-14) TORT Chapter 4: Tort law: wrong doing - Resulted in damage to others with

the exception of a breach of trust, duty or an obligation - Wrong committed against someone else, their property or reputation - Can be intentional and unintentional - Causing injury Criminal law vs. Tort law: - Tort and crime can be because of the same incident o Criminal: Public (judge) by wrongs against society o Tort: Private (person) by wrongs against an individual Intentional interference with a person: - Assault: threat of violence or injury to a person - Battery: touching or hitting another person - False imprisonment: restraint of an individual Assault and battery: Damages: to compensate for injuries - Punitive damages Defenses: - Provocation & self-defense Vicarious liability: - When the employer is liable for actions of an employee during employment (civil only, not criminal) Interference with a persons reputation: - Defamation: false statement that injures a persons reputation o Libel: printer or published ex. Writing or cartoon (WRITTEN) o Slander: statement or gesture that is spoken (VERBAL) - Defense: o Truth (Fair comment) language used is not latent with values and morals with truthful basis o Absolute privilege: protects speaker regardless of if the statement is true or false or even made maliciously o Qualified privilege: statement made in good faith and without malicious intent, even though the facts were believed to be true at the time but were proven false Example: letters of reference allows free speech

o Death of party: cannot defame the dead Trespass: - Entering land without permission - Intentional tort claim with 2 exceptions: children, unintentional Chapter 5: Tort liability: - One should not intentionally cause injuries to another - Strict liability: responsibility for loss regardless of circumstances - Vicarious liability: liability of one person for the actions of another (ex. Employers) Proximate cause (causation): cause of injury directly related to an act of a defendant - Connection between defendants act and plaintiffs injury Duty of care: right-duty not to injure another person - Foreseeability: standard of care used to measure act of negligence o If a reasonable person would foresee their activity causing harm Yes= liable No= not liable Determining negligence: - Intentional: willful chain of events and you are proving the process - Unintentional: negligence or reckless responsibility and you are proving perceptions o Omission on the part of someone o Duty to refrain from acting negatively o No duty to act a certain way Res Ipsa Loquitor: - The thing speaks for itself - Plaintiff must prove: o Cause of injury is because of defendant o Circumstances that would not normally occur if proper care had been taken by defendant Burden shifts to defendant if proven Occupiers liability: - Duty of care owned by occupier of the land o Trespasser: lowest duty of care and is not deliberately injured o Licenses: entering land with expressed or implied permission and medium duty to protect from danger o Invitee: entering with invitation and is owed the highest duty of care Manufacturers liability: - Duty of care owed to the purchaser of goods

o If the manufacturer was negligent o If they failed to warn them about dangers associated with goods Defenses to tort: - Contributory negligence: actions of the injured party contributed to their injuries - Act of God: force majeure beyond personal control ex. Things that happen which are unexpected such as earth quakes - Waiver: notice that was signed to ward off liability release of liability ex. Rending a car but taking insurance to protect the car - Release: promise not to sue or press a claim - Statue of limitations: reasonable length of time that the person must bring action Remedies: - Compensatory damages: money for special damages (specific loses) or general damages (pain and suffering) - Nominal damages: $1, not actual damages - Punitive damages: damages to set an example to deter similar behaviour by other people o Quantifying the impact of the damage on the larger issue at hand o Measurement is based on impact or severity - Court order: telling a person to stop doing something o Contempt of court: refusal to obey the court order Chapter 6: The professional: special skills not possessed by other individuals - Usually has an accompanying professional body - System of accreditation, education and training Professional-client relationship: - Contract: contractual duty of professional to perform services - Implied: by providing the service Duty of care: - Fiduciary: duty to place clients interest above the professionals own interest - Tort: professional must perform their duty according to standards CONTRACT Chapter 7: Contract: agreement made by two or more persons Elements of a valid contract: 1) Intention 2) Offer 3) Acceptance 4) Consideration 5) Capacity to contract

6) Legality - Should also be written - Free of mistake, misrepresentation, undue influence and duress Intent: meeting of the minds - Party intended to be bound by promise made - Presumptions: intend to be bound by promises Invitation to Receive offer Statement Advertisement of goods, invietaiton to tender

Create legal relationship

Offer

Offer: - Tentative promise subject to a condition acceptance depends on what was said in the offer - Must be communicated to other party - No person can agree to an offer of which they are unaware Acceptance: response in accordance with an offer - Must be communicated in the manner requested in the offer (by words or conduct) o Non-action can mean that you want to continue receiving something such as a magazine - Acceptance can be: by post (when the letter is in the post box and postage is paid) o Email, verbal, etc o Acceptance is complete when and where it is received Nature of acceptance: - Unilateral offer: performance of the act as acceptance - Lapse: termination of an unaccepted offer by passage of time, counteroffer or death - Revocation: termination of an offer by notice communicating to the offeree before acceptance Chapter 8: Consideration: giving something and getting something of value in the eyes of the law - Example: Confirmation when purchasing something-online - Transaction between two parties when the transaction is reasonably fair o Forms: money, services, promise not to do something, delivery of property, promise for a promise - Essential in a contract and form of bargaining theory

Seal: formal mode of expressing intent to be bound by written promise or agreement o Contract under seal requires no consideration Tender: invitation to submit offer o Tender uses seal to render offer irrevocable and payment as money as consideration Adequacy of consideration: if the person was given enough consideration Consideration must be given before the contract o Cannot be received before promise is made o Cannot be something the person is already entitled to o New contract, new consideration Legality: promises cannot be illegal and cannot violate statues

Chapter 9: Capacity: ability to enter into a contract - Law protects those who are not in an equal bargaining position - Minors & insane persons Minor: a person who has not reached the age of maturity - Common law: under age of 21 - Statue: usually 19 - Minors dont understand legality, responsibility and consequences - Exceptions: o Necessaries: food, clothing, shelter etc. minors are liable o Beneficial contracts: employment or apprenticeships that are beneficial to the minor - Right of repudiation: o Is the contract: Executed contact: fully executed by the minor For non-necessary goods or services Can be repudiated at any time Normal wear and tear cannot be recovered by merchant Executory: yet to be performed - Must always determine age of person you are contracting with - Even a minor who misrepresented their age may be able to repudiate Ratification and Repudiation: - Repudiation: refusal to perform and agreement or promise - Ratification: adoption of a contract of another party that was not bound by the contract When reaching age of maturity: - Permanent nature of contract: contract must be repudiated within a reasonable time after attaining age of maturity or the contract becomes binding

Non-necessary contracts: minor must expressly ratify on attaining the age of maturity Minors engaged in business: - Sole proprietor - Partnership: not liable for debts of partnership incurred as a minor o Must repudiate after attaining age of maturity or will be bound by the contract - Not necessary therefore contracts are voidable - If minor continues to accept benefits after age of maturity, the minor will be bound Drunken and insane persons: - Mentally disabled: cannot incur liability - Temporary: physical or mental damage or drugs/alcohol - Not responsible if they can prove that at the time they were entering into the contract, they were not in the right state of mind o At that specific moment, the person had to be unable and incapable of understanding and the presence of mind was not there to understand what was going on - Difficult to sue under tort law when people get attacked and they are not in the right state of mind Chapter 10: 2 classes of contracts: - Formal: not common - Informal (simple): implied, oral, written o Meet the requirement of writing, the agreement needs to identify the parties and the terms & agreements as well as signed by the party to be charged Essentials of a valid contract: 1) Intention to create legal relationship: distinct from invitation to receive offer 2) Offer: communication to offeree 3) Acceptance: by offeree that is unconditional and communicated to offeror 4) Consideration: legal and have value move from promise to promisor 5) Capacity: excludes infants, insane/drunk people 6) Legality: applies subject matter of agreement 7) Form and writing: statue of frauds, special types of contracts such as power of attorney, deeds etc. Power of attorney: (Formal contract) legal document in which a person appoints another to act as his or her attorney to carry out the contractual act Parole evidence rule: evidence that changes the terms of the contract this is not allowed

Prevents a party from introducing evidence that would add or contradict terms of a contract

Condition precedent: a pre-condition, written or not, that must be satisfied prior to a contract coming into existence. - It is a contract conditional upon something - Different from parole evidence rule as it relates to situation and not the terms fo the contract - Example: someone reaching a certain age before the contract can come into effect Subsequent agreement: an agreement that modifies or cancels an existing written agreement - Matter of already existing agreement and is the new agreement which overrides the existing one Implied terms: term omitted by the parties when the contract was prepared - Not stated but is still a provision of a contract - Example: implied that a taxi driver must be paid when you reach your destination - Not written or spoken in words but is considered implied Collateral agreement: agreement that has its own consideration but supports another agreement - Could alter or add to the main agreement - Separate contract that has its own consideration - Link between this and the original contract is that there has to be a transaction between two parties that is bound in contract and consideration Chapter 11: Mistake: when parties enter into an agreement that doesnt express true intentions unable to understand intentions of the other party - Everyday: intentional or unintentional and just happens but no legal consequences - Types of mistakes o Mistake of law: presumed to know the law but mistaken about something o Mistake of fact: mistake about the subject matter Court may provide relief contract is usually void - No est factum: avoid liability if they can establish that they were unaware of the nature of the document o Narrow form of mistake Unilateral and mutual mistakes: - Unilateral: one party - Mutual: both parties have made mistaken assumptions

o Courts will not enforce agreements when the other party is aware of the mistake being made o If both parties make the same mistake, the contract is unenforceable Misrepresentation: - Statement or conduct that induces the other party to enter into the contract - Must be a statement and not opinion - Statement made before contract entered into o Voidable at the option of the injured party o Revocation of a contract or agreement - Non-disclosure: intention to deceive by omitting some information - Innocent: misrepresentation of a fact that the person honestly believes to be true - Fraudulent: intention of deceiving o Deceit: when a party suffers damage by acting upon a false representation made by a party with the intention of deceiving the other o Contract: recession (restoring to position before entering into the contract) is the remedy o Tort: allows for damages that are punitive - Negligent misrepresentation: statements that are sufficiently reckless but not quite fraudulent Undue influence: state of affairs that has influenced a person to do something based on power or bargaining position Two scenarios: 1) Special relationship exists: lawyer/client, doctor/patient, parent/child but not spouses 2) Special relationship does not exist Duress: threat of injuring or imprisonment if the person doesnt enter into a contract or carry out some act - Threat can be to person directly or their family - Contract is voidable if they are under duress - Threat to person not their goods Example: collection agency threatening you if you dont pay and you are forced to enter into a contract - Collection agency now has parameters of what they can do so that they are not brought to court over duress o You can collect money as damages o You can take the person you owe debt to to court RECAP: - A contract is an understanding between two parties

Starts off as a meeting of minds: used to describe the intentions of the parties forming the contract. In particular it refers to the situation where there is a common understanding in the formation of the contract. This condition or element is often considered a necessary requirement to the formation of a contract. o Expression of intent Once intent is established, one party offers to another o Offer o Acceptance o Consideration: example: signing back of employment letter But the contract may not take place due to: o Mistake o Misrepresentation o Duress o Undue influence Unenforceable: contract is there but something has happened so one party feels that the contract cant go through o Nothing has happened so no legal claim for damages or remedies because nothing has happened

Chapter 12: Privity: a person cannot be liable to a contract they are not party to - Strangers have no liability or rights under a contract - Only a party involved in the contract has liabilities/rights under the contract - Rights can be transferred in manners that are exceptions to the rules of Privity - Exceptions: o Prior interests in land: buyer takes land but someone else has prior interests in the property before the purchase is made Such rights run with the land - Trusts: agreement whereby a party (trustee) holds property for the benefit of another (beneficiary) o Third party involvement third party gets involved through an empowerment of one party o Legal transactions: someone dying and wishes to administer land or money to a trustee trustee can take care of something for the benefit of the beneficiary o Constructive trust: normally beneficiary is not a party and gave no consideration so has no rights - Promises under seal: third party can enforce agreement if made under seal o Promise that has the authority of government or Queen o Someone comes and says that they have a promise to that land under seal example: previous family ownership or promise 100 years ago under seal if it was given to them in some legal way or as a reward

Statutory rights and liabilities: third party has statutory right to enforce contract o Example: beneficiary under a life insurance polity under the Insurance Act o Banking industry: organizations that have a say in the value of money (bank of Canada) They dont get involved in the individual agreements but can change the value of instrument being used in a transaction Novation: substitution of parties to an agreement or the replacement of one agreement by another agreement o Allowed because consensual amongst the parties o Terminate original agreement and replaced it with another Equitable assignments: if one party assigns their rights to another party but isnt agreed by the party, the assignment can still be equitable as long as certain steps are followed and there was no other way o Example: switching couriers Unless this alters the contract Vicarious performance: a performance of a third party where the contracting party remains liable for performance (example: employer) Statutory agreement: assignment of rights that an assignee may enforce if certain conditions are met o Assignment in writing and signed by assignor o Assignment is absolute and not conditional o Notice of assignment is given o Assignment taken subject to the equities

Chapter 13: Performance: - Must be done according to terms of contract - Must be exact and precise in order to constitute discharge o Anything less is considered a breach - Tender: act of performing a contract or the offer of payment of money due under a contract o Legal tender: cannot be refused if tendered by buyer Seller can refuse credit card, check, bill of exchange unless specified as form of payment - Exchanging goods for performance of an act: o But can be challenged because performance isnt adequate - Ending of a contract: o Obligations fulfilled: everyone did what they were supposed to do o Discharged: everything was done (performance) or both parties agreed to end or one party couldnt fulfill what they said would (other means) Termination as a right: some time limit has expired and performance is over External events: Expressed terms & Implied terms

Implied terms: discharge by occurrence of an event that by custom of the trade would normally result in exemption from liability o Condition subsequent are implied by the courts Example: common carriers are normally liable for loss or damage to goods carried but if the loss is due to an Act of God or some other event that could not have been prevented Expressed terms: discharge by the occurrence of an event specific in the contract o Condition subsequent: a condition that alters the rights or duties of the parties to a contract, or may have the effect of terminating the contract if it should occur o Natural disasters, that are all acts of God o Force Majeure: unforeseen, inevitable events that prevent the performance of a contract or cause damage to property Frustration: Contract under which performance by a party is rendered impossible due to unforeseen or unexpected change in circumstances affecting the agreement Frustration results in the contract being discharged Should be inserted into the agreement Sale of goods act: provides for frustration in certain circumstances Agreement not performance by an implication o Example: you enter into a verbal contract that you want to rent but the company asks you to get a credit history and you dont come back the contract is not over, its frustrated o Implied in a change in state

Agreement

Before both parties have fully performed Option to terminate in agreement Performance impossible by external event (ex. war)

Obligation

Right

Frustration

Operation of law

Bankruptcy Exprss or implied term that must be fulfilled before contract may be performed Act of God, implied term, expressed term

Condition precedent

Condition subsequent

Review questions: Difference between intentional and unintentional tort: - Unintentional torts are negligent, while intentional torts are deliberate acts. o Assault, battery, libel/slander, false imprisonment, intentional infliction of emotional distress, trespass to land or chattels, and conversion are all intentional torts. o Unintentional torts are accidents. They usually happen because someone was not being careful. When someone is not careful, it is called negligence. In a case of negligence, the court figures out what happened and decides whether the defendant was careful enough. It orders the defendant to pay money only if the defendant was not careful enough. - Example of intentional tort: Jordan becomes angry that Devon is dating his exgirlfriend. Jordan confronts Devon after school and beats him up. - Example of unintentional tort: driving a car while not paying attention to the road What is the standard of proof for tort of defamation? And are there any defenses for libel or slander? - Standard of proof: plaintiff must establish that the defendants statements have seriously injured his or her reputation; otherwise, the court will award only nominal damages. If the defendants statements are true, the plaintiff will not succeed. Interference with a persons reputation:

Defamation: false statement that injures a persons reputation o Libel: printer or published ex. Writing or cartoon (WRITTEN) o Slander: statement or gesture that is spoken (VERBAL) Defense: o Truth (Fair comment) language used is not latent with values and morals with truthful basis o Absolute privilege: protects speaker regardless of if the statement is true or false or even made maliciously o Qualified privilege: statement made in good faith and without malicious intent, even though the facts were believed to be true at the time but were proven false Example: letters of reference allows free speech o Death of party: cannot defame the dead

Accountants special level of responsibility (professionalism): - Negligent performance is usually limited to the party that contracted the professional service - For a professional accountant, it can cause harm to those who relied on the accountants advice or information o Third parties= accountants and auditors can be target of complaints - Province of Ontario introduced legislation that would hold liable directors of publicly traded corporations and their accountants for releasing statements o Statutory remedies to person who relied on misstatements o Directors and accountants have to prove that they used reasonable care in preparation of statements o Shift of burden of proof to accountant or auditor of a public corporation to prove that they were not careless in preparation of financial statement What is the difference between condition precedent and condition subsequent? - Condition precedent: A condition that must be satisfied before a contract can come into effect o The agreement is prepared and signed o Example: you must complete first-aid training before becoming a lifeguard - Condition subsequent: A condition that alters the rights or duties of the parties to a contract, or that may have the effect of terminating the contract if it should occur o Example: I agree to take the training if you give me the job - Example: Precedent -- "If it snows for 5 days in row, I agree to shovel your driveway" Subsequent -- "I agree to shovel your driveway until there are 30 days of abovefreezing temperatures" What are click-wrap agreements?

Anyone who has downloaded an electronic purchase, such as software, will have used a click-wrap agreement, in which the process stops until the user accesses the agreement terms and clicks a box marked "I agree" before going further. By clicking the "I agree" box of a click-wrap agreement, the user has entered into legally binding contract After accessing the contents of the click-wrap agreement, the user will see either a box to type "I agree" or more often, two boxes to chose from: one for "I agree" and another for "I do not agree." Consideration: When a user clicks "I do not agree," the process stops. Only those who electronically "sign" the agreement by clicking "I agree" can go forward to install the software or download the Internet product.