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31 Cards in this Set
- Front
- Back
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What are the Categories of Form for a contract?
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•Entirely oral
•Some terms are oral, others written •Entirely written, may be spread across multiple documents |
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What are the benefits of a Written Contract?
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The terms of a contract remain the same whatever from they take, but its always best to have them in written form
Words are slippery, need to determine what parties agreed to, words have different interpretations |
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What was the Statute of Frauds?
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Designed originally in England in 1677, statute required written evidence to eliminate perjured testimonies in lawsuits concerning land
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What were the consequences of the Statute of Frauds?
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•Rendered certain types of contracts UNENFORCEABLE (loss falls where it lies), unless they are in writing… meaning that neither party may sue on contract
•Result is that parties to oral contracts are often able to avoid their obligations solely because the contracts fall within confines of the statute while perfectly valid in every other respect •It is for this reason that courts have tried to limit the application of the statute wherever possible |
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What type of Contracts are effected by the Statute of Frauds?
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•Executor’s Promise
If you want the executor to pay for something him/herself then you need it in writing •Guarantor vs. Indemnity In case of a guarantor a bank trying to collect on their debt needs to exhaust remedies on the first guy before going after the guarantor (needs to be written for the Statute of Frauds) •Agreement made in Consideration of Marriage Designed not with respect to the marriage itself, rather to the bringing together of assets as common property. Replaced in Ontario with regulations like the Cohabitation agreements which are long term (must be in writing) •Concerning Interest in Land Land is immobile, permanent and indestructible, hence it is essential to have verified written records affecting interests in land available over many years. Agreements to build a house or obtain room and board are outside statute. Agreements for leasing land or houses are within the statute. •Agreement not to be performed by either party within one year Parliament decided that a one year limit is the extent of trust on memory. Thus, oral applies for anything under a year, must have written for anything over a year |
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What are the Requirements of a Written Memorandum?
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•Statute requires a ‘note or memorandum’ of the contract, signed by the party to be charged (ie. the defendant). All essential terms must be included (property name, name of parties involved, consideration given, etc.)
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Effects of Statutes of Frauds on contracts within its scope?
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•Recovery of money
the court will not permit the party who denounces the contract to gain further advantage •Recovery for Goods and Services Party who has accepted goods and services under a contract that is unenforceable due to statute is not permitted to retain the benefit received without paying for it •Effect of a subsequent memorandum Written memorandum can come into existence after the contract has been formed and still satisfy the statute, as long as the memorandum comes into effect before action is brought on the contract •Defendant must plead the statute A defendant who is sued upon an oral contract must expressly plead the statute as a defence |
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What are the 3 ways to discern the meaning of a contract?
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Plain Meaning: Look it up in the dictionary
Liberal Approach: Look at the contract as a whole, see if there is a hint at the meaning Trade Usage: If there are industry terms, determine their meaning |
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What is the meaning of Contra Preferentum
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Preference is given to the non-contract writer in a standard form contract, as the writer can make the contract as they want it
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What are Implied terms?
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When a contract is continually renewed, only terms which are new are put in, all others are "implied terms" (set out in Sale of Goods Act)
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Who can you sue for Breach of Contract?
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1. People you made the deal with
2. Parties to the contract (people who were supposed to deliver the service) |
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What is Privity of Contract?
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Contract cannot impose obligations on any person other than the parties to the contract
(cannot collect recourse from a contract you are not named in) |
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What are exceptions of the Privity Rule?
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•Vicarious Performance
One party pays another to fulfull the first obligation (subcontracting) •Novation the decided upon ending to the contract, obligation filled or parties changing (ie. subletting) •Exemption Clauses a term stating "i am exempt from liability if i do not keep my promise" •Trusts Trustees carry out the contract for the beneficiary, and beneficiary may sue the trustee for not fulfilling the contract •Insurance third party beneficiaries may claim from insurance company even though they do not have a contract (car crash) •Land Land outlives owners. Public record can overrule and bind prior owners even if they have not signed any documents. (once you buy land all previous contracts affect you) |
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What is Assignment and what are the two types?
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Transferring the right to collect a benefit to a third party via a second contract (third party can then enforce the contract they were not originally party to)
Types: 1. Equitable Assignment 2. Statutory Assignment |
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What is Equitable Assignment?
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A transfer of part of the benifit only. The assignor must be party to the original lawsuit, meaning essentially the third party must sue the party who still owes through the assignor
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What is Statutory Assignment?
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Falls under Conveyance Law and Property Act, under which the party need not be involved with the assignor.
Conditions that must be met: 1. have absolute and unconditional assigning 2. be laid out in writing 3. vendor has notice of term |
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What are defenses to Assignment?
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1. assignee must not be in a stronger position than assignor
2. any defense that would work against assignor works against assignee |
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When you purchase something with a credit card, who are you? (Assignee, Assignor, Promisor?)
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You are the promisor
Store is the assignor Credit Card company is the assignee |
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What are the two types of Breach of Contract?
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Minor - non essential term, can still sue but must finish contract
Major - breach of an essential term, non breaching party can discharge or continue to bind both parties to contract |
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What is an anticipatory breach?
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A breach which occurs any time before the time agreed for performance
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What are some ways in which a breach may occur?
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1. Party renders performance impossible (deliberate act which makes performance impossible)
2. Telling the other party that they will not be able to complete the contract on time 3. Tendering inadequate performance of the promise |
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Describe Failure of Performance
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Becomes apparent when time for performance arrives, or during performance itself.
Doctrine of Substantial Performance is used to test for seriousness of breach. |
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What are some Remedies for a Breach of Contract?
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1. Damages
2. Specific Performance (requires defendant to do a specified act ie. complete a transaction) 3. Injunction (court order restraining party from acting in a specific manner) 4. Mandamus (opposite of an injunction ie. mandates an apology) 5. Declaration (public declaration to demonstrate to the public that you are right) 6. Rescission (restoring parties to the positions they would be in before the contract) |
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What is the definition of Bailment?
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Transfer of possession of personal property ONLY without transfer of ownership. Owner is the Bailor, recipient is the Bailee. Can be contractual or non-contractual, contractual and involuntary
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What is Gratuitous Bailment?
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Act which may benefit both parties (car left with friend for safekeeping, friend can use it occasionally)
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What is Bailment for Value?
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Can go both ways (like Gratuitous) is.dealership gives you car for the weekend with hopes you will purchase
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Under Bailment, who does the onus fall upon if damage occurs?
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Onus falls upon the bailee who must show that they were not negligent and met the standard of care. They must provide a reasonable alternative explanation for the damages called. (reverse onus)
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Who is a sub-bailee?
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Someone who receives an object from the original bailee. (Bailor may sue both bailee and sub bailee of damage occurs)
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Other notes for Bailment:
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Standard of care is higher for more valuable, or easily damaged items
Contractual bailment - falls between bailment for value and gratuitous bailment (car in shop while being serviced) |
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What is a Lein?
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Gives the bailee a right to retain possessions until the bailor pays for what is due.
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What is the Right of Sale under Leins?
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Bailees have the statutory right to sell goods after a certain time elapses without payment. Advanced notice must be given to bailor with the intention to sell. Sale must be advertised or held in public auction. Proceeds go to reimburse bailee for costs and overdue charges then any excess goes back to the original bailor.
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