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Bus 393 Practice Exam

What are the 4 essentials elements of contract formation

Intention to create a legal relationship

Offer and acceptance

Consideration

Legality

Signature

Lawyer approval

Match definitions with proper explanations

Unenforceable Agreements

Effectively the “price” that the parties are willing to pay for the contractual benefits that they expect to gain

Misrepresentation

Punish a party who has breached a contract, rather than compensate a party who has complied with it

Condition

Capable of being refuted

Economic duress

Unenforceable

Guarantee

Important term of a contract whose breach frees the non-breaching party from all further obligations under the contract

Duty to mitigate

Pressure to enter into a contract by the way of threat of economic harm

Punitive damages

Party may raise an objection to the enforceability of an agreement if sued for breach of that agreement

Unconscionable agreement

Agreement so inequitably one-sided that it is unenforceable

Presumption

Legal assumption that is made, subject to a party proving otherwise

Independent legal advice

Contract whereby a party assumes responsibility for another party’s financial obligations if that other party defaults on payment

Option agreement

Minor term of a contract whose breach inquires the non-breaching party to continue to fulfill their remaining obligations under contract

Capacity

False statement of fact

Quantem

Expiration of an offer

Undue influence

Amount

Seal

Contract must have a legal purpose

Counteroffer

Treat as if the contract were never made

Rescind

Pressure exerted on a weaker party that deprives that party of the ability to exercise their judgment or free will

Void

Contract in which a party gives something of value to keep an offer open for a specific period of time

Infant

Suffering from mental health, drugs or alcohol, incapable of making an agreement

Damages

The non-breaching party is free of all further obligations under the contract

Revocation

Proposal that accepts an offer on terms differing from those in the offer

Assertively

Party may raise an objection to the enforacbility of an agreement by asking a court or arbitrator to declare that an agreement is enforceable, whether or not the agreement has been breached

Rebuttable

Stem from situations in which one party feels that is has been taken advantage of, misled, or otherwise been unfairly disadvantaged

Lapse

Person under the age of majority

Condition of the contract

Taking back of an offer, can only occur any time before it is accepted

Consideration

Symbol, stamp, etc. On a contract that indicated the intention to be legally bound; takes the place of consideration

Warranty

Legal advice regarding a contract obtained from a different lawyer who drafted the contract

Defensively

Obligation to take all reasonable steps to lessen losses suffered

Legality

Losses suffered as a result of the commission of a tort or the breach of a contract, or monetary compensation awarded for these losses

What can you do about a breach of contract

Ignore the breach

Negotiate a compromise

Use ADR

Litigate

Meditate

Argue with opponent

Match definitions with proper explanations

Breach of contract

Clause in a contract that excuses parties from their contractual obligations in specified circumstances

Force Majeure

Significant and unanticipated event - such as a natural dissaster - that is beyond the control of the parties and makes fulfillment of contractual obligations impossible

Condition Precedent

Clause in a contract that requires one of the parties to pay for any losses or expenses that the other party may incur as a result of claims related to the contract

Indemnity clause

Any provision or term that forms part of a contract

Rules of construction

Doctrine that restricts the operation of a contract to those who are parties to it

Exclusion clause

Judge will prefer the interpretation offered by the party who did not draft the contract over the interpretation of the party who drafted it

Standard form contract (contract of adhesion)

Employment, service, leasing, contracts for purchase and sale of goods, insurance

BC Sale of Goods Act

Clause in a contract that provides for the payment of money if a certain event - usually a specified breach of contract - occurs

Privity of contract

Clause in a contract specifying the place where a contractual dispute will be litigated

Liquidated damages clause

Contract that is drafted by one of the parties and imposed on the other with little or no opportunity for negotiation

Types of business contracts

Term specified in writing

Condition Subsequent

Occurrence of an event or circumstance that results in the termination of contractual obligations

Disclaimer clause

Term that will be inserted by a court into a contract when necessary to give effect to the parties' intentions

Venue clause

Includes unless stated otherwise, the seller has a right to sell the goods, the goods are not subject to any claims by others, such as liens, the goods correspond accurately to a description or sample, and the goods are of merchantable quality or reasonably fit for a purpose specified by the purchaser

Express term

Additional term added on to a standard form or existing contract

Contract

Clause in a contract that limits the amount or type of damages that the parties might otherwise be required to pay

Implied term

Clause in a contract specifying that something must happen before a party is required to perform their obligations under the contract

Endorsement

Failure to fulfill contractual obligations

Contract term

Agreement between two or more parties that is enforceable by law

Contra proferentem rule

Common law rules used in interpreting disputed contracts

Why should everyone in business know about contract law

Contracts can clarify your business dealings

Contracts can prevent unexpected and undesirable results

Contracts can provide for a dispute resolution process

Contract law governs disputes

Contracts are apart of every day life

Contracts can determine issues in your workplace

Why are written contracts usually preferable to verbal contracts

Written contracts provide the parties with a record of their rights and obligations

Written contracts provide proof of the parties' agreement in the event of a dispute

Written contracts are easier to access

Written contracts provided by law to bind a relationship

What contracts need to be in writing

Consumer transactions

Sale or lease of land

Debt

I owe you's

Family related manners

What are the rules of construction

Apply an objective test

Interpret the contract against the drafter

Determine the parties' intentions

Needs to be concise

Apply a beyond reasonable doubt test

What are some benefits of standard form contracts

Standard form contracts save time

Standard form contracts reduces costs

Standard terms usually produce standard results in court

Standard terms help businesses plan for potentially advertise results

Standard form contracts provide excellent models

Standard terms only help in some situations

Examples of situations in which courts may imply contractual terms

Custom within an indusrty

Obligations of good faith

Business effectiveness

Obvious omission

It is required in every contract

What must party seeking to have the contractual term included satisfy to the court

Reflects the intention of the parties

Term is reasonable

Clear

Does not contradict an express term in the contract

Need to be a lengthy contract

Match definitions with proper explanations

Tort action

Court order requiring a party to discontinue an action or prohibiting a party from taking a proposed action

Slander

Supports the law of contracts by providing an additional remedy, in cases where the breaching party has been induced to commit the breach by a third party

Battery

Tort based on harm to a person’s or a business’s reputation through false statements made by the defendant

Pass off

Written defamation

Occupier

Subcategory of negligence based on a defendants liability for harm caused to others because of his or her defective or dangerous products

Waiver of liability

Degree to which a party must convince a jude or a jury that the allegations are true

False imprisonment

Failure to act

Duty of care

Degree of care that a person must take to prevent harm to others

Defamation

Tort in which the defendant threatens the plaintiff with physical harm

Negligence

Unintentional tort that requires no proof of negligence, unintentional

Standard of proof

Fictional person who, in negligence law, applies the appropriate standard of care in a given situation

Product Liability

Failure of a person to act reasonably, resulting in harm to someone else

Trespass to Land

Enhanced duty of care that flows from a relationship of special trust, such as that between a doctor and a patient

Professional negligence

A wrongful act, causation, quantifiable harm

Inducing breach of contract

Provides that the plaintiff is entitled to recover the full amount of the damages from either of them

3 Elements of a Tort

Requirement that a certain party prove a particular fact at trial

Injunction

Defence based on proof that a plaintiff knowingly entered into a risky situation and thereby assumed responsibilities for any injuries

Reasonable person

Tort in which the defendant, without the permission of the plaintiff, comes onto land occupied by the plaintiff

Unlawful means

Civil wrong, other than a breach of contract for which damages may be sought to compensate for any harm or injury sustained

Tort

Verbal defamation

Unintentional Tort

Torts based on intentional harm, through illegal acts, to a part’s means of earning money

Liability

The state of being responsible where there are two or more tortfeasors, or partners in a firm, or two engineers who worked on a project

Fiduciary duty

Tort in which the defendant engages in unwanted physical contact with the plaintiff

Occupiers Liability

Person or company that has control over land or buildings, including owners and tenants

Foreseeability

Expectation of whether a reasonable person could predict that a certain result might follow from their actions

Criminal prosection

Tort in which the defendant unlawful restricts the freedom of the plaintiff

Nuisance

Subcategory of negligence that imposes liability on occupiers of land or buildings for any harm caused to visitors, invitees, or trespassers

Strict Liability Tort

Legal duty owed by one person to another based on a relationship or on the doctrine of foreseeability

Negligence Act

Tort based on a professionals failure to provide services that meet that professions standards

Vicarious Liability

Makes it an offence to trespass when given notice not to

Libel

Acknowledgement of the risks in an activity an an agreement to assume them

Intentional Tort

Standard of proof in civil law indicating tht one version of events is more probable than another

Omission

Tort in which the defendant interfered with the use and enjoyment of the plaintiff’s property

Trespass Act

To punish

Balance of probabilities

Lawsuit based on tort, to compensate

Voluntary Assumption Risk

Injury deliberately caused to a plaintiff by a defendant, involving verbal or physical aggression like defamation, assault and batter, business torts like passing off

Contributory negligence

Allows courts to hold the plaintiff partially responsible for his own injuries, can reduce damages

Assault

Liability imposed on one party (often an employer) for the harmful actions or omissions of another (often an employee)

Burden of proof

Injury inadvertently caused to a plaintiff by a defendant, ex professional negligence, Product and Occupiers liability

Standard of care

Tort based on one party’s attempt to distribute its own knock-off product or service on the pretense that it is the product or service of another party

What is the importance of Tort Law for business people

Tort judgments are expensive, less predictable

Tort judgments are a public relations nightmare, can harm reputation badly

Tort laws are easy to understand

It is required by HR

What is needed to win a Negligence case

Owed a duty of care

Defendant breached the standard of care that was reasonable

Breach caused the plaintiffs loss or injury

Defendant should have foreseen the plaintiffs loss or injury

Need witnesses

What are 3 common defense's against tort actions

Failure to prove the tort

Voluntary assumption risk

Statutory compensation schemes

Hire the best lawyer possible

Match definitions with explanations

Supreme Court of BC

Appear before a court or at a court reporter's office to answer questions about its assets, debts, and ability to pay

Litigation

Time period in which a lawsuit must be commenced, after which the right to sue is lost, usually 2 years in BC

Dispute Resolution

Settle disputes between parties who have been unable to settle their differences themselves in a peaceful manner

Writ of seizure and sale

Appropriate when parties to the dispute already have a strong and trusting relationship, assist the parties in communicating effectively by helping them to define and obtain information they need to resolve their problem

Special damages

An inferior trial court (due to limited powers defined by various statutes) comprising three divisions: civil (small claims court), criminal, family, and traffic, ticket bylaws. Busiest more than 200k cases annually

Interpretation of Legislation

Court document notifying a defendant of a lawsuit against him or her and the reasons for the proceedings

Discovery

Procedure after exchange of pleadings where both parties disclose all information, including producing documents, relevant to the case

Aggravated damages

Pecuniary damages that have already been incurred and that can be precisely measured

General damages

Stipulation indicating that statements made either orally or in writing may not be disclosed to the court if attempts at settlement are unsuccessful

Fundamental fairness

Litigation expenses, including court fees and partial reimbursement of fees and expenses charged by the other party’s counsel

Small Claims Court

Damages that arte actual monetary losses

Court of Appeal of BC

Court document notifying the plaintiff in a lawsuit that the defendant is denying the claim and identifying the defendants arguments

Rights-based Mediation

The highest trial court in the province with unlimited monetary jurisdiction and both statutory and inherent powers; trials usually proceed before a single jury, but occasionally trials are heard by a single judge and jury

Alternative dispute resolution (ADR)

Short and long-term business goals as well as business concerns, priorities, and aspirations, subjective, flexible

Review of Government Agencies

A person who has no personal interest in a dispute between the parties and can help them resolve a dispute, such as a mediator or arbitrator

Facilitative Mediation

Process of resolving disputes through a formal court process

Rights

Interpret the statute to decide what it means in relation to a particular set of facts, resolve the matter for the parties in a lawsuit. Provides guidance to others affected by statute and predicts the legal consequences of their actions

Garnishment

Give Canadian Courts power to strike down laws that violate rights and freedoms like equality, freedom of expression and religion, safeguard individuals against unlawful encroachments by the state, often political and controversial

Non-pecuniary damages

Requires the third party to pay the money it owes the defendant into court so it is available to the plaintiff

Constitutional Interpretation

Claims up to $5,000 (online) up to $50,000 for certain motor vehicle accident claims, unlimited to strata properties, societies, and cooperative associations

Supreme Court of Canada

Damages that cannot be readily qualified in financial terms

Response of civil claim

Courts determine how to interpret and apply the constitution, not so easily amended. Supreme Court of Canada ruling on the interpretation of a section in the Constitution generally have the final word on the matter

Notice of civil claim

Requirements by a court that a party complete its obligations under a contract

Pecuniary damages

Settlement of conflict through a process other than the court system

Specific performance

Client provides documents like invoices, memos, and emails, lawyer advises pros and cons of proceeding and will wait for client's choice of action

Examination in aid of enforcement

Encourages parties to understand the positive aspects of their relationship appreciate wisdom of each others point of view, job to help see each other in different light

Civil Tribunal Court (CRT)

Plaintiff can obtain a document (writ of execution) and file it with the sheriff, allows to obtain property and sell it at a public auction

Neutral individual

The highest court in the province; it hears appeals from lower provincial courts, and its decisions are binding on all other courts in the province. Review BC Supreme Court decisions to ensure legally correct. Usually 3 judges, 5 justice panels might hear an appeal if the court is being asked to reconsider one of its own decisions. Hearing is brief, provide complete written arguments (factum)

Court costs

Ensure that they act fairly and do not make major legal errors in deciding cases, defer unless obvious mistake made

Protection of Rights and Freedoms

Entitlements, less flexible, objective

Consulting the lawyer

Principle encompassing the right to be heard, the right to hear the case against you, and the right to reply to the case

Provincial Court of BC

Court deal with $5,001-35,000

Transformative Mediation

A subcategory of non-pecuniary damages awarded for intangible harm, such as harm to reputation or humiliation

Without prejudice

Asses which of the parties has the stronger position by determining which party’s rights are most strongly supported by the law, tries to persuade of that basis

Interests

A federally established national appeal court that hears appeals from all provincial court systems; its decisions are binding on all courts in Canada, 9 judges appointed by the PM. Need to apply, only about 1 in 10 are successful. Gets accepted if the matter has general public significance

Limitation periods

Pecuniary damages for pain, suffering, and future economic loss, including future loss of life expectancy of quality of life

Match definitions with explanations

Crown

Paty who is sued in a lawsuit

Doctrine of paramountcy

System whereby law-making powers are divided between the federal and provincial governments according to subject matter

Federal system of government

Principle requiring that a rule set out by a court in a decided case be applied to a new case

Legislative branch

Introduce, vote on, and pass legislation(statutes)

Procedural law

A written law passed by a legislative body, rule of an organization

Executive branch

Federal and provincial governments will share law-making authority, ex agriculture, and environment

Private law

Rules that establish rights and limits, ex speed limit

Substantive law

Representative of the government who is responsible for presenting the government's case in public law matters against an accused person charged with an offence; also known as Crown counsel

Judicial branch

Rules that govern the relationship between individuals (including corporations) where there is no government involvement

Civil law

Body of rules applied to monitor decision-making powers of government agencies

Regulations

Rule that establishes that where there is a conflict between federal and provincial law, the federal law will prevail and, where it conflicts, the provincial law will be inoperative

Administrative agencies

Rules created by the executive branch of government that have the force of law

Administrative law

Rules that govern the relationship between individuals (including corporations) and government, ex tax and criminal law

Statutes

All aspects of the state in a commonwealth nation; the Monarch is the symbolic embodiment

Prosecutor

Term used to describe judges, collectively, ensure the constitutionality of the law

Rule of Law

Another way to refer to private law; concerned with the private relations of individuals, ex contracts, property

Civil law system

Administer day-to-day business of government

Defendant

Rules that establish the process of how substantive law will be enforced, ex ticket process or disputing the ticket

Public law

Principle that requires judges to follow decisions of higher courts in similar cases

Regulatory offence

Adjudicate legal matters and disputes

Common law system

Breaking of a rule contained in a statute that can result in fines or other penalties but is not a criminal offence

Stare decisis

Rules established by the federal government that governs the standard of acceptable behaviour in society, the breach of which results in fines and imprisonment

Constitution

Supreme law that establishes the basis upon which all other laws are created

Doctrine of precedent

Constitutional convention that holds the legislative branch of government supreme over the other branches, thus allowing new legislation to override judge-made law

Accused

Person accused of an offence

Criminal law

Beyond the level of power of a government or corporation

Plaintiff

Party who commences a lawsuit (the party who is suing)

Liable

Developed over time. System of law that recognizes court decisions with the same force of law as statues, where statutes mean what courts interpret them to mean and where courts have the authority to make a law where no legislative statute exists and to establish precedent, everyone else

Ultra vires

Codified law. System of law where all rules are established in statute and courts lack authority to act without a statute; judges in civil law systems are not bound by the doctrine of precedent and have the freedom to interpret statutes independently of previous decisions; another way to refer to “private law”, Quebec

Parliamentary supremacy

Standard of proof that the prosecutor must meet in a criminal trial in order for a defendant to be found guilty

Beyond a reasonable doubt

Government body that administers and enforces a particular area of law

Jurisdiction

Authority to make or enforce the law

Judiciary

Legal principle that every person has equal rights before the law and that the law is supreme; it safeguards citizens from arbitrary actions of government

Concurrent jurisdiction

Legally responsible

Under section 91 is the power of parliament and section 92 is provincial legislatures section

True

False

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