• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/33

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

33 Cards in this Set

  • Front
  • Back

What is a contractual term? How does it differ from a pre-contractual representation?

A contractual term is a provision in an agreement that creates a legally enforceable obligation


A pre-contractual representation is a statement made by a party in words or conduct with intent to induce another party into entering a contract

If a contractual term is false, what can you sue for?


If a pre-contractual representation is false, what can you sue for?

Breach of contract


Tort of misrepresentation

Misrepresentation is defined as:


and is actionable if:

A statement of an existing fact that is false when made


(May be) actionable if induced a contract

Misrepresentation must be a statement of fact, and not:

Personal opinion


Prediction of future


Statement of law

Silence can only be interpreted as misrepresentation if:

It distorts a previous statement - an earlier statement is no longer accurate due to circumstances


A statement is a half-truth


The contract requires a duty of utmost good faith - legal obligation to disclose all necessary information


A special relationship exists between parties


When a statutory provision requires disclosure


Facts are actively concealed



What are some remedies for/legal consequences of misrepresentation?

Rescission


Restitution


Damages


Affirmation

How does rescission work? What kinds of misrepresentation is it available for?

Rescission terminates a contract 'ab initio' (as if it never existed), restoring parties to pre-contractual status


Often accompanied by order for restitution


Available for all types of misrepresentation: innocent, negligent, fraudulent

How does restitution work? What kinds of misrepresentation is it available for?

Restitution is the act of restoring money, land or goods


Available for all types of misrepresentation: innocent, negligent, fraudulent

How does affirmation work?

Occurs when the misled party declares an intention to carry out the contract or otherwise act as if bound by it


Rescission will not be available as a remedy afterwards

How do damages work? What kinds of misrepresentation are they available for?

Damages are monetary awards to repair wrongful loss


Available for fraud and negligence only (innocent misrepresentation = damages not available)

What tort are damages in misrepresentation covered under?

The tort of deceit

What are the types of misrepresentation?


Describe them

Innocent - a carefully made statement without knowledge that it is wrong


Negligent - a false, inducing statement made in a unreasonable or careless fashion


Fraudulent - a statement or misleading silence, known to be false or made with no belief in its truth, made recklessly

What are the limitations to claiming fraudulent misrepresentation?

If a party cannot prove the allegation, they may face costs against them

What types of contractual terms are there?

Express terms


Implied terms

What are express terms? What types are there, and how do they differ in proving them?

Terms expressly included by parties; conditions


Oral agreement: primarily a question of evidence, must prove what words were spoken


Written agreement: easier to prove since evidence is written somewhere, subject to parol evidence rule

What is the parol evidence rule?

When contracts are reduced to written terms, there cannot be additional terms/side evidence added elsewhere (e.g. email); you are stuck with whatever was in writing - Peter Pocklington selling the Oilers on the back of a napkin

What are some exceptions to the parol evidence rule?

Rectifying or fixing a mistake in a contractual document


Proving the contract was never fully formed/was defective


Resolving ambiguities in the original document


Demonstrating the document does not contain the complete agreement


Collateral contracts

What is a collateral contract?

A separate agreement one party makes in exchange for the other party's entry into the main contract - party A will only buy a TV from B if B buys a bike from A, so two different contracts but innately connected

In contractual interpretation, what different approaches are there?


Describe them


What rules determine the correct method of interpretation?

Literal approach - assigns words their ordinary meanings


Contextual approach - examines the parties' presumed intentions and circumstances


Golden rule - words are given their ordinary meanings unless to do so would result in absurdity


Contra proferentem rule - the meaning least favourable to the author of the contract will prevail

When are implied terms examined?

Arises by operation of law, either through common law or under statute


Most important consideration for a court to imply a term is whether it is clearly justified with regard to the parties' intentions when they contracted

In what situations would courts determine there are implied terms?

The business efficacy test - a contract is advertised as being accepted by email, but the offeror accepts a contract by phone instead; the contract terms are still implied to be applicable


Usage and custom - terms in clauses cannot be seen as vague if they are common to the area of business e.g. 'fixtures' in real estate


Previous dealings between parties - because of precedent, terms become implied

The Sale of Goods Act is an example of implied terms by statute, what is it?

A good being sold is new and unused unless otherwise described - consumer protection

What are standard form agreements, and what is their disadvantage? What form do they often take?

Mass-produced documents usually drafted by a party who is in an economic position to offer certain terms on a 'take it or leave it' basis


A valid means of reducing transaction costs


They have the potential for abuse


Often take the form of 'ticket' contracts

What are the requirements for enforceability of exclusion clauses?

Terms must be clear and unambiguous


There must be reasonable notice to affected party


Assent by affected party - signature is best evidence of acceptance of clause

How do signed forms work?


What are some exceptional cases?

Signature is usually proof of assent to terms


Signer bound even if document not read


Signer bound even if terms not understood


Possible exception if no chance to read


Possible exception of unexpected terms

What is a boilerplate clause?

A boilerplate clause is a standard provision that can be reused in various contractual settings in a virtually unchanged form

What are some examples of boilerplate clauses?

Exclusion clauses


Force majeure clauses


Confidentiality clauses


Arbitration clauses


Justification clauses


Entire agreement clause

What does a force majeure clause do?

It aims to protect the parties when part of the contract cannot be performed because of events outside of their control

What does a confidentiality clause do?

It prevents the disclosure of certain information (about the agreement) to third parties

What does an arbitration clause do?

It outlines who should act to resolve a dispute and what method of arbitration should be used

What does a justification clause do?

It predetermines the locale of the court and whose law will apply in the event of a legal dispute between the parties

What does an entire agreement clause do?

It states that the entire agreement between parties is contained within the four corners of the contract

What is the purpose of having plain language in contracts?

Plain language protects consumers from having to deal with 'legalese', i.e. the formal and technical language of traditional legal documents