LGST Exam
Describe the implications of the separate legal existence of the corporation.
- a shareholder can be an employee or a creditor of the corporation. The share holder and the corporation are two distinct entities that can contract with eachother -the corporation is unaffected if the shareholder dies or withdraws from the business -the corporation is treated as a separate tax payer for income tax purposes. income or losses from the corporation's business are attributed to the corporation and it is liable for the applicable tax.
Identify the key elements of a partnership agreement.
- sharing profits -sharing responsibility for losses including guaranteeing partnership debts -jointly owning property -participating in management, including having signing authority for contracts and bank accounts, and enjoying access to information regarding the business -representing oneself as a partner, or allowing others to do so.
Explain why the concept of proximity is important to the duty of care, especially in the context of claims for negligent statements.
Means did the parties share a relationship of sufficient proximity. This is important in duty of care to determine if these people were strangers, family, etc. The relationship of the parties has a big impact on the decision of negligence. Ex: a pet owner leaving heir pets outside in the cold with no food or water.
Explain the role of policy under the duty of care concept, especially as it applies to the regulation of professions.
Means if an injury was reasonably foreseeable and if the parties shared a relationship of sufficient proximity then a duty of care presumably will exist. The judge might still deny a duty of care, however, on the basis of policy reasons.
Explain what is meant by corporate social responsibility and how the law can encourage it.
Means pursuing a commitment to environmental protection and sustainability as well as going beyond what the law requires to ensure that a corporation takes responsibility for the impact of its actions on the environment, consumers, employees, the local economy, and other affected stakeholders.
Explain three ways an agency relationship can be created.
-Commercial representation agreement: occurs when a manufacturer of goods agrees to allow someone to sell its goods on its behalf -actual authority: exists when the principal authorizes the agent to act on its behalf -apparent authority: exists when the principal creates the reasonable impression that the agent is authorized to act on the principals behalf. -
Explain the difference between different types of leases on the basis of how long they last.
-Fixed-term tenancy: exists when it is possible at the outset to determine when the tenancy relationship will end -Periodic tenancy: is for a fixed period and is automatically renewed at the end of each term unless one of the parties provides notice of termination -tenancy at will: exists if there is no set term and either party can terminate the lease at any time -tenancy at sufferance: occurs when a tenant continues to posses the premises at the end of a lease without the landlords permission
Identify the liability risks associated with being a director or officer and some strategies that can be used to manage these risks.
-General standards of behaviour: fiduciary duty, duty of care, oppression remedy Liability risks such as failure to remit employee withholdings of income tax can be minimized with insurance.
Explain the differences between innocent, fraudulent, and negligent misrepresentation.
-Innocent is a statement a person makes carefully and without knowledge of the fact that it is false -negligent is a false, inducing statement made by an unreasonable or careless manner -fraudulent occures when a person makes a statement they know is false or that they have no reason to believe is true or that they recklessly make without regard to the truth
Identify five employer obligations imposed by employment standards legislation.
-Know the law and draft your restrictive covenants with the legal requirements in mind. -Define the proprietary interest you are trying to protect through the clause (eg, your trade connection with your clients). -Consider whether to include non-competition, non-solicitation, and confidentiality clauses. Consider whether a non-solicitation clause would be sufficient to protect your interest, rather than a non-competition clause. -When drafting a non-competition clause, bear in mind the circumstances of your industry and the employee, and draft the restriction to be reasonable, both temporally and geographically. Do not be too broad. -Be aware that if you repudiate the employment contract, you may not be able to enforce its restrictive covenants.
Explain five ways by which an offer may cease to exist.
-Revocation -Lapse of time -Death or Insanity -Rejection -Counter-offer
Describe three different types of breach.
-defective performance: occurs when a party fails to properly perform an obligation that is due under a contract -deviation: occurs when a ship, train, or truck departs from the route agreed upon by the parties -anticipatory breach: committed if a party indicates in advance, by words or conduct, that it does not intend to fulfill an obligation that will fall due in the future
Describe the rules that the Sale of Goods Act implies with respect to delivery and payment.
-delivery and payment shall be concurrent -condition that delivery will occur on time and warranty that payment will occur on time -delivery will occur at the sellers place of business -condition that seller will deliver goods that conform to the contract.
Name three types of estates, and explain how they differ from one another.
-fee simple: is the largest package of rights that a person can hold in land -life estate: entitles a person to exclusive possession of a property for the duration of a particular life -leasehold estate: occurs when a person has exclusive rights to a property for a specific period of time
Identify seven types of parties that lack capacity or have limited capacity to contract.
-minors -mentally incapacitated persons -intoxicated persons -corporations -assosications -indian bands or aboriginal persons -public authorities
Identify three essential elements of most contracts.
1. The parties must have an intention to create legal relations 2. They must reach a mutual agreement through the process of offer and acceptance 3. They must enter into a bargain by each giving consideration
Describe the special legal requirements imposed on agents working in some areas, like real estate, that are designed to protect people who deal with them.
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Describe the process of incorporating and organizing a corporation.
A corporation is created only when certain documents are filed with the appropriate government office under either the federal CBCA or similar legislation in each province of territory. the three main filings are -articles of incorporation -a name search report on the propose name of the corporation -the fee
Explain the difference between winning a lawsuit and enforcing a judgment.
A defendant who has been found liable and ordered to pay money to the plaintiff is called a judgment debator. Unfortunately even if the court has said that the plantiff is entitled to a remedy, the judgment debtor simply may not have any assets available. The courts have to determine if there are any assets available or can implement a garnishee order.
Describe the nature and effect of a seal.
A seal is a mark that is put on a document to indicate a party's intention to be bound by its terms, even though the other party may not have given consideration.
Explain how a sole proprietorship is created and how it operates.
A sole proprietorship exists when a person carries on a business on their own, without adopting any other form of business organization.
Identify forms of alternative dispute resolution, and explain how they compare to litigation.
ADR (alternative dispute resolution) is solving a matter in any way other then going to court. The three types of ADR: Negotiation: is a discussion aimed at settling a dispute. Mediation: is a process in which a neutral party (called a mediator) helps the parties reach an agreement Arbitration: is a process in which a neutral third person (called an arbitrator) imposes a decision on the parties. all three will resolve the issue similar to litigation but without court proceedings.
Describe four ways in which personal property rights can be acquired, and four ways in which they can be brought to an end.
Acquiring personal property: 1. purchase through contract with previous owner 2. gift received from previous owner 3.first possession of things that were never owned or that were abandoned 4.finding of lost property (good against everyone except true owner) Loosing personal property: 1. sale through contract to new owner 2.gift through intention and delivery to new owner 3.abandonment with intention to give up rights 4.fixture of chattel to land or a building (subject to right of tenants fixtures)
Explain the difference between an offer and an invitation to treat.
An offer is an indication of a willingness to enter into a contract on certain terms while an invitation to treat is an indication of a willingness to receive an offer
Define the term "bailment," and list the three elements of a bailment.
Bailment occurs when one person temporarily gives up possession of property with the expectation of getting it back. Three elements to be considered a bailment. -one person voluntarily delivers property to another -for a particular purpose -with the intention that the property will be returned or disposed of as directed
Identify and explain four complete defences and two partial defences.
COMPLETE DEFENCES: Consent: voluntary choice to allow acts that otherwise would be tortious Legal Authority: statutory or common law right to perform acts that otherwise would be tortious Self-defence: right to protect oneself, or a third party, or perhaps property, from attack Necessity: right to protect oneself, or a third party, or perhaps property, from a natural disaster or general threat. PARTIAL DEFENCES Provocation: words or actions that cause a reasonable person to loose self control Contributory negligence: plaintiff is partially responsible for the injury that the defendant tortiously caused.
Outline the types of remedies that are generally available in tort law.
Compensatory damages: defendant most pay damages Punitive damages: intended to punish the defendant and deter other potential wrongdoers nominal damages: symbolically recognize that the defendant committed a tort even though the plaintiff did not suffer any loss injunctions: is a court order that requires the defendant to do something or refrain from doing something
Describe the nature of confidential information and the remedies available when confidentiality is breached.
Confidential information is material exchanged in a relationship that prohibits its recipient from sharing it or otherwise using it to take advantage of the person who communicated it. When there is a breach in confidentiality you can sue the person who commited the breach and receive compensatory damages in some cases.
Explain the basic statutory measures designed to ensure safety in the workplace.
Every employer must meet minimum standards for workplace health and safety. There is health and safety legislation aimed at preventing accidents, injuries, and industrial diseases. Employees have the right to refuse unsafe work. A workplace can be shut down if workplace is unsafe.
Explain how a cheque works by describing the events that occur between (i) the drawer and the payee, (ii) the drawer and the drawee, and (iii) the drawee and the payee.
Ex: you use a cheque to buy goods from a store. The cheque will discharge your debt to the store unless something goes wrong. By accepting the cheque the store agrees to look to your bank for payment. If your bank honors (pays) the cheque, it will make payment to the store and then debit your chequing account by the same amount.
Determine whether a particular creation is protected under copyright legislation.
For work to have copy right protection in Canada you must meet three requirements. 1) the work must be original 2) the work must be fixed 3) the author of the work must be connected to Canada (or to a world trade organization, berne, rome, or universal copyright convention member state.
Outline the special considerations that arise when a court decides whether a professional has acted carelessly.
If the defendant becomes drunk or under the influence and causes harm.
Describe the basic structure for the governance of corporations.
In Canada corporations allocate responsibility and power amongst shareholders, directors, and officers
Explain the difference between intentional torts, negligence torts, and strict liability torts.
Intentional tort: When people intentionally act in certain ways. some torts require proof that the defendant intended to hurt the plaintiff. Others merely require proof that the defendant intended to act a certain way even if no intention to cause harm. Ex. you commit the tort of trespass if you make the decision to walk on land even if you think the land is public property. Negligence Torts: occurs when a person acts carelessly Strict liability tort: occur when a person does something wrong without intending to do so without acting carelessly. It is enough that the defendant was responsible for the situation that resulted in the plaintiffs injury.
Explain the effect of a firm offer.
Is an offer that the offeror has promised to hold open for a certain time. The terminology is misleading in the sense that a firm offer may not be firm at all and the offeror can revoke such offer at anytime.
List the advantages and disadvantages of hiring lawyers and paralegals.
Lawyers: a lawyer can provide you with competent help and can increase your likelihood of success but does not guarantee. Paralegals: Is not a lawyer but can provide legal advice and services. Paralegals can be more affordable and are common in small claims and landlord tenant matters.
Describe nominal damages and punitive damages, and explain how they are calculated.
Nomial: symbolize the fact that the plaintiff suffered a wrong when the defendant broke a promise Punitive: are intended to punish the defendant and discourage other people from behaving badly.
Describe the tort of trespass to land, and explain when a business is entitled to prohibit people from coming onto its premises.
Occurs when the defendant improperly interferes with the plantiff's land. A business is typically perceived as inviting customers onto property but a business can revoke that consent as long as it does not violate human rights. (ex excluding a person on racial grounds) Ex: the owner of a racetrack may exclude a highly successful gambler from the property. One the business revokes their consent that customer becomes a trespasser.
Describe the tort of conspiracy, and explain the risks that arise when two or more companies plot together against another business.
Occurs when two or more defendants agree to act together to cause the plaintiff to suffer a financial loss. The courts must be able to prove that the two parties came together with the sole purpose to hurt the plaintiff. Ex: a group of people spread the word to boycott a paper company to draw attention to aboriginal land. Even though the paper company lost a lot of money, the group was not held repsonsible because their intention was to raise awareness about aboriginal land.
List four areas of public law and three areas of private law. Provide examples that demonstrate how each one of those areas is relevant to business people.
PUBLIC LAW: is concerned with governments and the ways in which they deal with their citizens. - Constitutional Law: provides basic rules of political and legal systems. It is concerned with who is entitled to create and enforce laws and basic rights and freedoms. Business people need to be aware of these laws to ensure their company policies are following such laws. -Administrative law: is concerned with the creation and operation of admin agencies, boards, commissions, and tribunals. Businesses are highly impacted by this law for example a human rights tribunal may find a company guilty for discrimination due to a women receiving less money then a man for the same job. -Criminal Law: deals with offences against the state. It is concerned with people who break the rules that are designed to protect society as a whole. Example: if you punch me you have committed a tort against me personally. But you have also committed a crime and done something wrong that can effect the entire community. Even if I am not upset about being hit, the state may still want to discourage and punish your behaviour. In business criminal crimes could look like theft from a company, fraud, etc. -Tax Law: concerned with the rules that are used to collect money for public spending. Businesses should be well informed on tax law and ensure that taxes are properly and honestly filed. PRIVATE LAW: concerned with the rules that apply in private matters. Usually between individuals or organizations. Ex: a theatre might sue me if I do not perform a play as promised. -Law of Tort: is a private wrong. Business consists of transactions and contracts. Ex: sales of goods, negotiable instruments, real estate transactions. -Law of contracts: is concerned with the creation and enforcement of agreements. Business people need to be aware of the importance of a contract and the legal obligations when signing one. -Law of Property: concerned with the acquisition, use, and disposition of property. Ex: copy rights, patents, personal property.
Describe past consideration, and explain why it cannot support a contract.
Past consideration consists of something that a party did prior to the contemplation of a contract. past consideration is not given in exchange for the other party's consideration so there for it cannot support a contract. Ex. a landscaping company did work on your lawn without asking you. You are surprised and happy with the result and offer to pay $250. You have no obligation to pay the $250 due to the landscaping companies past consideration.
Discuss the patentability of inventions, and identify possible grounds of infringement.
Patent law protects inventions which are defined in the patent act as "any new and useful art, process, machine, manufacture, or composition of matter. The act also allows for "new and useful improvements" of existing inventions. Patent infringement is simple anyone who uses anothers patented invention without permission
Describe the concept of privity of contract, and explain its relationship to the concept of consideration.
Privity of a contract refers to the relationship that exists between the individuals who create a contract. Privity of a contract is often expressed in terms of the consideration doctrine. The approach emphasizes the bargaining aspect of contracts and says that generally speaking only a person who has provided consideration can sue or be sued on the contract.
List four basic strategies for managing risks.
RISK AVOIDANCE: Some risks are so serious they should be avoided all together. Ex: A car that regularly explodes upon impact should be removed from the market right away. The issue of morality as well as the financial costs of being held liable will likely outweigh any profits from sales. RISK REDUCTION: Some risks can be reduced to a more acceptable level of risk. Ex: if a bank loans money to a manufacturer the bank can ask for the business to grant a mortgage over their factory. That way if there is a recession and the loan cannot be paid back the bank can have the factory. RISK SHIFTING: If a risk cannot be reduced or avoided it can be shifted onto another party. There are two strategies for shifting risk; insurance and exclusion clauses. Ex.If a construction company requires temporary use of a crane it has two options. First, it may rent a crane and hire an independent contractor to operate it. If the worker operates the crane carelessly and injures a bystander, the person can sue the crane operator but can not sue the company if the operator was an independent contractor. RISK ACCEPTANCE: Sometimes its important to accept a risk. It is possible that a wild shot might hit a factory window, and that a gold course might be held responsible for the resulting damage. If the likelihood of an accident is small, the club might decide to do nothing at all and closing the gold course to avoid the risk wouldn't make sense. Perhaps investing in a large safety net might be a good idea or buying a insurance policy to help with costs. The gold course can also hope for the best and pay for any damages that may occur.
Explain the difference between real property and personal property, and between tangible property and intangible property.
Real property is NOT moveable and personal property is moveable. Tangible property is a thing that can be touched. Intangible property is a thing that cannot be touched.
Outline the rules that determine when property and risk pass under a sale of goods.
Rule #1: an unconditional contract for the sale of specific goods that are already in a deliverable state. (PP) at the time of the contract, even if delivery and payment occur at a later date. Rule #2: a contract for specific goods that requires the seller to do something to put the goods into a deliverable state. (PP) when the seller has done that thing and the buyer has been notified Rule #3: a contract for specific goods that requires the seller to do something to the goods (such as weigh, measure, or test) in order to determine the price. (PP) when the seller has done that thing and the buyer has been notified. Rule #4: a delivery of goods "on sale or return" (PP) when the buyer has signified approval or adopted the transaction or retained the goods beyond reasonable time Rule #5: A contract for unascertained or future goods by description. (PP) when goods of that description, that are in a deliverable state, are unconditionally appropriated to the contract by one party with the other party's assent.
Summarize the rules that apply when goods are sold on the basis of a sample.
Sale by sample occurs when the parties agree to deal in goods that match a particular specimen. Ex: you were at a hardware store and saw a demonstration of a saw. You then decide you want to purchase that saw. Four Rules Apply: Description and Sample: The item bought must match the description and sample that was presented in the demonstration at the store. Quality: the store must deliver saws that are of the same quality as the sample viewed in the store. You may discharge the contract if the saw does not function as well as the sample did. Opportunity to compare: the store must give you a reasonable opportunity to compare the saws to the one that was used during demonstration Discoverable defects: the saws must be free from any defect that would make them unmerchantable and that could not have been discovered by a reasonable examination.
Outline one way in which tort and contract law are similar and two ways in which they are different.
Similar: tort and contact law both are concerned with private laws and agreements. Different: Tort is concerned with basic contracts like sale of goods which typically is finalised with payment and receipt. Contract law is typically a formally written agreement that needs to be signed.
Describe specific performance and injunctions, and explain when they are awarded.
Specific performance occurs when the court orders the defendant to fulfill a contractual obligation to do something An injunction occurs when the court orders the defendant to not to something that is prohibited by the contract.
Explain the legal standard of care that management must observe when making business judgments.
The business judgement rule is a rule that courts should defer to the business decisions of directors officers where they acted reasonably and the decision was within the range of reasonably available alternatives.
Describe the Canadian Charter of Rights and Freedoms, and provide several examples of how it can help or hurt a business.
The charter was introduced in 1982 and written into the constitution. It was added to protect basic rights and freedoms. 1) A business must provide employees with certain religions a space to practice such religion at work or during breaktimes (fundamental freedoms section 2) 2) A business must be open to the hiring of people from a different province (mobility rights section 6) 3) A business cannot search an employees belongings without permission or reasonable grounds (legal rights sectons 7-14) 4) A business must ensure no discrimination is taking place on their premise (equality rights section 15) 5) Some business might be required to have employees who speak both french and english (offical languages 16-22) 6) A business may be subject to court investigation of a basic right and freedom breach. (enforcement section 24) 7) A business may not be able to build or make adjustments to buildings they own due to a protection act to preserve multicultural heritage. (General sections 25-31)
Discuss human rights in the workplace.
There is provincial and federal statutory provisions that deal with human rights in the work place. The purpose is not to punish the employer but to bring remedy to the employee who has been discriminated against.
Explain the difference between third-party insurance and first-party insurance by giving an example of each.
Third party insurance is said to provide third party coverage because it is aimed at providing insurance to someone who is outside of the insurance contract. If the insurance policy is triggered, the insurance company pays damages to the person that was wrongfully injured by the insured policy holder. First party coverage: property insurance is said to provide first party coverage because it does not require the involvement of an outsider. If the insurance policy is triggered by loss or damage to the insured's property, the insurance company pays money to the insured party itself.
Explain the similarities and differences between torts and crimes.
Tort refers to a breach of private obligation. An obligation in tort law is owed to a person. Ex: I owe an obligation to you personally to not make defamatory statements about your past. That obligation would be broken if I falsely tell your employer that you were once convicted of theft. I will be a tortfeasor ( a person who has commited a tort). You will be entitled to sue me and if held liable I will have to pay damages to you. A crime occurs if a person breaks a public obligation. A public obligation is owed to a society as a whole, rather then to any particular person. Consequently if something goes wrong the government will prosecute the accused on behalf of the whole community. If found guilty may be subject to punishment such as fine or imprisonment.
Use the concept of risk management to explain how the difference between employees and independent contractors is important to the doctrine of vicarious liability.
Ultimately an employer can be liable for any action an employee makes. This is why some employers outsource independent contractors to minimize risk Independent contractors are not employees of the business and are not closely connected to the business. Some factors that will classify a worker as an employee are: Control, property, regular pay, integration.
Explain the term "reasonable foreseeability," and explain the ways in which that concept is relevant to the tort of negligence.
Was it reasonably foreseeable that the plaintiff could be injured by the defendants carelessness. It is used to determine if a reasonable person would commit this action without foreseeing that it could cause harm
Outline the rules associated with proving the existence of express terms.
When a contract is made orally with no witnesses the parol evidence rule(evidence that is not contained within written contract) is used.
Explain the nature and effect of a discharged contract.
a contract is discharged when a party is relieved of the need to fulfill anymore promises.
Explain the difference between voidable and enforceable contracts with a minor.
a contract is voidable if a minor is entitled to avoid legal obligations that the contract would have otherwise created. contracts can be enforced once age of majority is reached or if the contract was made within one year of becoming age of majority.
Explain the difference between overdrawn cheques and countermanded cheques.
a countermanded cheque is when a stop payment was issued by you before the cheque was processed. overdrawn is when your account does not have enough credit to cover the cheque
Define "quiet possession," and explain two ways in which a landlord can break that type of covenant.
a covenant for quiet possession prohibits the landlord from interfering with the tenants enjoyment of the premises. The landlord can break this type of covenant by; 1) the obligation may be breached if the lease is practically ineffective. That may be true if the landlord cannot provide exclusive possession because a prior tenant still occupies the premises. 2) physical interference: breach may occur if the landlord is responsible for the tenants lack of physical enjoyment. That may be true if the landlord allows carbon monoxide to seep up from a parking lot, or frequently uses a jackhammer that causes an intolerable amount of noise and vibration.
Describe situations in which an agent's fiduciary duty to act in the best interests of a principal and their duty of care protect the principal.
a fiduciary duty requires an agent to act in good faith and in the best interest of the principal. Ex: I agree to pay you 5000 if you found a suitable piece of land for me. You then arrange for me to buy your principals land for 200,000. There is a risk that your desire to obtain 5000 from me may have interfered with your obligation to find the best deal possible for your principal. You would have to pay the 5000 finders fee over to your principal. It would not matter if 200,000 was entirely a fair price for the land and that you did your best to ensure that your principal got the best price . The fudiciary duty may be breached even if the principal did not suffer any loss. AGENTS MUST ENSURE THEY NEVER RECEIVE INCENTIVES TO ACT IN THEIR OWN INTERESTS AT THE EXPENSE OF THE PRINCIPAL
Explain the nature of a lien and a right of sale.
a lien is the bailee's right to retain possession of the bailor's property until the bailor pays a debt. If the lien is not responded to in a timely manner then the bailee may also be entitled to right of sale. Right of sale allows a bailee to sell the bailors property to obtain payment of the bailors debt
Explain the difference between general and limited partnerships.
a limited partnership is a partnership in which the personal liability of at least one partner is limited to the amount of the partners investment in the business the biggest difference is the division of benefits and risks are not equal and divided differently then a general partnership
Describe a mortgage, and identify the mortgagor and the mortgagee.
a mortgage is an interest in land that provides security for the repayment of a debt. a mortgagor is the person who borrows the money and provides the interest in land the mortgagee is the person who lends the money and acquires the interest in land
Identify pre-contractual and contractual statements.
a pre-contractual representation is a statement one party makes by words or conduct with the intention of inducing another party to enter into a contract. contractual is a provision in an agreement that creates a legally enforceable obligation.
Explain the basic differences between a registry system and a land titles system, and indicate which system operates in your jurisdiction.
a registry system provides an opportunity to inspect and evaluate documents that may affect real property. a land titles system generates certificates of title that virtually guarantee the validity of the interests that are listed. durham uses a land registry system
Define the term "sale of goods," and explain when it applies.
a sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called a price. There are four points to determine a sale of good - the act applies only to a sale -the act applies only to a sale of goods -the act applies only to a sale of goods for money -the act is sometimes enforceable only if the contract is evidenced in writing
Describe the advantages and disadvantages of using a sole proprietorship to carry on business.
a sole proprietorship bears all the burdens of the business and risk. They also keep all the profit and reward from the business
Describe the differences between conditions, warranties, and intermediate terms. Explain the situations in which a contract may be discharged for breach.
a term is a condition if a breach would substantially deprive the innocent party of the expected benefit of the contract. a term is a warranty if a breach would not substantially deprive the innocent party of the expected benefit of the contract a term is intermediate or innominate if depending upon circumstances a breach may or may not substantially deprive the innocent party of the expected benefit of the contact.
Outline the basic difference between an assignment and a sublease.
an assignment occurs when a contractual party transfers its rights to a third party and a sublease occurs when a tenant grants lease to a third party
Explain the difference between employees and dependent and independent contractors.
an employee is a person who contractually agrees to work under the control and direction of an employer. an independant contractor is a person who contractually agrees to work but who is not controlled by another person in how they accomplish a task.
Explain the difference between the actual authority of agents to enter into contracts on behalf of their principals and their apparent authority to do so.
apparent authority exists when the principal creates the reasonable impression that the agent is authorized to act on the principals behalf actual authority exists when the principal authorizes the agent to act on its behalf
Explain the extent to which the Sale of Goods Act requires goods to match their description. Explain the difference between merchantability and fitness for an intended purpose.
caveat emptor (buyer beware) states unless the buyer made specific promises to you, you cannot complain if you are disapointed in the goods. The law expects you to be responsible for your purchases and requires you to inspect your goods before purchase or enter into a contract with the seller that guarantees quality. that being said goods should be of merchantable quality and fit for intended purposes. goods are merchantable if a reasonable person would buy them without a reduction in price despite knowing their imperfections. goods also must be fit for intended purposes. Ex: a computer is not defective simply because it does not have a DVD player. However, it is not fit for your purpose if you required a DVD player for use in your business.
Explain the difference between co-ownership and joint tenancy, and explain why one is often preferred in the business world.
co-ownership: occurs when two or more people share an undivided interest in a property. one party can leave their portion of property to a friend if they die joint tenancy: occurs when two or more people share exactly the same interest in a property. if one party dies their portion gets divided amoung the remaining owners.
Explain the difference between a condition subsequent, a true condition precedent, and a condition precedent.
condition subsequent- a contractual term that states that the agreement will be terminated if a certain event occurs. true conditioner precedent- a contractual term that states that an agreement will come into existence only if and when a certain event occurs condition precedent- is a contractual term that states that while a contract is formed immediately, it does not have to be performed unless and until a certain event occurs.
Explain the nature of consideration and the role it plays in the formation of contracts.
consideration exists when a party either gives (or promises to give) a benefit to someone else or suffers (or promises to suffer) a detriment. The creation of a contract generally depends on an exchange of value and therefor consideration must be provided by both parties
Explain when a corporation will be liable for contracts, crimes, and torts because of the actions of people working on its behalf.
contracts become liable only as a result of actions by agents (a person of a corporation authorized to act on behalf of the corp) These agents must have actual or apparent authority. crimes depend on the type of offence. person acting on behalf of the corporation commits prohibited (absolute liability). person is acting on behalf of the corporation commits prohibited act but subject to defence that person who is directing mind took responsible steps to prevent offence. (strict liability) person acting on behalf of the corporation commits prohibited act and a senior officer had required intention or knowledge to commit offence or knew an employee would commit offence and failed to take all reasonable steps to prevent offence. (mens rea) tort- may be liable in two ways. Directly liable when a person who is a directing mind of the corporation commits the tort. Or may be virariously liable for acts of employees in the course of their employment
Explain what it means for a corporation to act beyond its capacity.
corporations are treated as legal persons. The law will distinguish between chartered corporations and statutory corporations. Chartered corporations are treated the same as individuals who have reached the age of majority. Statutory corporations have more limited capacity to contract and is limited by the powers given to them through legislation. If a statutory corporation attempts to contract in a manner that exceeds its statutory powers, it acts ultra vires, literally "beyond the authority". When a corporation acts ultra vires it lacks capacity to contract because it has exceeded the limits of authority.
Describe the court hierarchy, and explain how it is related to the doctrine of precedent and the rule of law.
courts are arranged in a hierarchy according to their importance. Rather then having a single court hierarchy there is separate hierarchies for each province and territory. There are 14 separate court systems in Canada and each one ends in the same place: The supreme court of canada. The doctrine of precedent requires a court to follow any other court that is above it in a hierarchy. With the court hierarchy and doctrine of precedent we now look at the third concept which is the rule of law. The rule of law states that disputes should be settled on the basis of laws, rather than personal opinions.
Define the term "damages," and explain why the courts will generally award only damages for a breach of contract.
damages is an award of money that is intended to cure a wrongful event such as a breach of contract.
Explain the nature of condominium ownership.
exist when several people share ownership of some parts of a building while individually owning other parts.
Describe the nature and function of the concept of a duty of care.
exists if the defendant is required to use reasonable care to avoid injuring the plaintiff.
Describe expectation damages, and explain how they are calculated.
expectation damages represent the monetary value of the benefit that the plaintiff is expected to receive under the contract. expectation damages= expected benefits under the contract - costs under the contract.
Explain the tort of false imprisonment, and describe how a business can protect itself against liability.
false imprisonment occurs when a person is confined within a fixed area without justification. A busienss can protect itself from liability by ensuring all people are out of building before closing for the night. By ensuring that a customer who was caught shop lifting was not forced into a back room for detainment without resonable cause of proof Calling a police officer to deal with matters instead of taking matters into your own hands Business can be liable for false imprisonment even if they did not order police to make an arrest but their statement lead to an arrest and jail time but later proved to be innocent. (malicious prosecution)
Outline the types of contracts that must be evidenced in writing, state the basic writing requirements that must be proved, and summarize the legal effect of non-compliance.
guarentees: a contractual promise by a third party called a a guarantor to satisfy a debtors olbligation if that debtor fails to do so. contracts for sale of interest in land: and contracts not to be performed within a year.
Explain how a promissory note operates.
is a signed document containing a written promise to pay a stated sum to a specified person or bearer at a specified date or on demand.
Summarize and apply the various judicial approaches to interpreting express terms.
literal approach- assigns words their ordinary meaning contextual approach- goes beyond the 4 corners of the document by looking at parties presumed intentions and cirumstances
Explain the difference between non-competition and non-solicitation covenants.
non competition clause is a form of restrictive covenant that prohibits or restricts an employee's ability to work for competitor or to start a business that would compete with the employer. A non solicitation clause is a form of restrictive covenant that prohibits the employee from soliciting the customers of the employer, but otherwise leaves the employee free to compete.
Briefly describe the defence of contributory negligence.
occures when a loss is caused partly by the defendant carelessness and partly by the plaintiffs own carelessness.
Outline the elements of the tort of deceit.
occurs if the defendant makes a false statement, which it knows to be untrue, which it intends to mislead the plaintiff, and which causes the plaintiff to suffer a loss. A false statement can include: Half-Truth: ex: presenting gross profits as net profits Failure to update info: provided old records that were no longer true Caveat Emptor: the commercial rule "let buyer beware" which means I am under no obligation to volunteer information as a seller. There are some exceptions like I am required to inform you of hidden defects if I am selling my house that make the building unsafe
Describe the concept of vicarious liability, and explain how it affects business people.
occurs when one person is held liable for a tort that was committed by another person. Ex: the owner of a vehicle is responsible for any damages that occur even if a friend is driving. This can affect business usually by a business being responsible for their employees actions. Compensation: if an employee gets sued for damages the company can be held liable to pay Fairness: a company is responsible to pay for losses when if the fault of an employee. Ex: made the wrong burger and have to throw it out and start over.
Explain the nature of reliance damages, and explain how they are different from expectation damages.
reliance damages represent the monetary value of the expenses and opportunities that the plaintiff wasted under the contract. This is different from expectation damages because it is compensating for money the plaintiff spent and opportunity the plaintiff missed out on.
Describe the reasonable person, and explain how that person is relevant to the standard of care.
requires the defendant to act in the same way that a reasonable person would act in similar circumstances. Standard of care tells the defendant how to act. The reasonable person test is how the judge determines the standard of care, the defendant must act in a way that a reasonable person would act in a similar situation, if not, they have breached the standard of care
Outline the nature and function of the "but-for" test.
requires the plaintiff to prove that they would not have suffered a loss but for the defendants carelessness. If the plaintiff would have suffered the loss regardless of the defendants actions then the defendant is not liable
Explain the difference between summary dismissal, wrongful dismissal, and constructive dismissal, and define just cause for dismissal as well as the notice periods that must be provided when dismissing an employee without cause.
summary dismissal occurs when an employer dismisses the employee and thereby terminates the employment relationship without notice. Summary dismissal requires just cause for the dismissal and could include reasons such as: absenteeism, substance abuse on job, incompetence and carelesness, dishonesty and disobedience, conflicts of interest, criminal behaviour. wrongful dismissal: occurs when an employee is dismissed without cause and without reasonable notice or money in lieu of notice. constructive dismissal: occurs when an employer fundamentally changes the nature of a person's job.
Describe the postal rule, and explain when it will apply.
the postal rule states that an acceptance that is communicated in a non-instantaneous way is effective where and when it is sent.
Outline the purpose of an agreement of purchase and sale, and explain the role of the conditions that are frequently contained in that type of agreement.
the purpose is to create a contract for the sale of land. Conditions are clauses in the contract that must be met to keep the contract valid and to complete the transaction.
Explain the difference between undue influence and unconscionable transactions, and identify when a presumption is created in each case.
undue influence is the abuse of a relationship in order to influence someone to induce an agreement. An unconscionable transaction is an agreement that no right-minded person would ever make and no fair-minded person would ever accept.
Describe the process of certification, and explain how it affects the rights of the parties to a cheque.
when a bank guarentees that there will be enough cash available in the holder's account when the recipient decides to use the cheque.
