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174 Cards in this Set

  • Front
  • Back

a voluntary exchange of prom-ises creating obligations that, if defaulted on, can be enforced and remedied in the courts


an agreement under seal

formal contract

written or verbal con-tract not under seal, also called a parol contract

simple contract

a simple contract that may be verbal or written but is not under seal

parol contract

contract in which the parties have expressly stated their agree-ment, either verbally or in writing

express contract

an agreement inferred from the conduct of the parties

implied contract

an agreement legally bind-ing on both parties

valid contract

an agreement that is not legally binding because an essential ele-ment is missing

void contract

an agreement that has legal effect but that one of the parties has the option to end

voidable contract

an otherwise binding contract that the courts will not enforce, such as a contract that does not satisfy the Statute of Frauds

unenforceable contract

one that is void because it involves the performance of an unlaw-ful act

illegal contract

a contract in which there is an exchange of promises: both parties assume an obligation

bilateral contract

a contract formed when one party performs what has been requested by the other party; there is a promise followed by an act, but not an exchange of promises

unilateral contract

a tentative promise to do some-thing if another party consents to do what the first party requests


binding contract that will subsequently be put into a more for-mal document; now usually referred to as an agreement of purchase and sale

interim agreement

term making a con-tract conditional on future events

“ subject- to” clauses

contractual relationship involving a request for goods and ser-vices where there is no agreement on price before the service is performed; courts impose obligation to pay a reason-able price; also known as quantum meruit

quasi- contracts

invitation to engage in the bargaining process

invitations to treat

when a person cannot understand the nature or consequences of his acts


withdrawal of an offer before acceptance ( must be communicated to the offeree)


a new offer, proposal of which rejects and terminates the offer available until then


contract with fixed terms prepared by a business

standard form contracts

agreement by one party to the terms of the offer made by another


principle that mailed accep-tance is effective when and where it is dropped into a mailbox

postbox rule

a one- sided agree-ment that the courts will not enforce

gratuitous promise

something com-pleted before an agreement is made; it is not valid consideration

Past consideration

a promise to com-mit an unlawful act or to do something against public policy, which is not valid consideration and will not be enforced by a court

illegal consideration

the principle that when a gratuitous promise to do some-thing in the future causes a person who relies on that promise to incur an expense, the promisor will not be allowed to enforce other contractual rights that are inconstant with that promise; the promise can only be used as a defense by the promisee; also known as equitable estoppel

promissory estoppel

persons under the age of major-ity ( also called minors)

infants or minors

the essential goods or ser-vices required to function in society, such as food, clothing, and shelter


a contract yet to be performed; a contract at the stage when an agreement has been made but before performance is due

executory contract

a contract at the stage when one party has performed and the other has not

partially executed contract

a fully performed con-tract; a contract at the stage when both parties have performed or fulfilled their obligations

executed contract

an indication by one party to the other that there will be a failure to honour the contract ( expression can be expressed or implied)


the public good; some acts, although not illegal, will not be enforced by the courts because they are socially distasteful ( against public policy)

public policy

a primary obligation of a third party to pay a debt along with the debtor


any document that provides information or proof

evidence in writing

an untrue statement of fact; an incorrect or false representa-tion


a failure to reveal facts; if a duty to disclose exists, silence may constitute misrepresentation

non- disclosure

another term for fidu-ciary duty

utmost good faith

a false state-ment made honestly and without care-lessness by a person who believed it to be true

innocent misrepresentation

amounts to the undoing of a contract, returning the parties to the posi-tions they were in before the contract


absence of wrongdoing on the part of a person seeking an equitable remedy

clean hands

force or pressure to enter into a contract


pressure from a domi-nant, trusted person that makes it impos-sible for a party to bargain the terms of a contract freely

undue influence

equitable principle allowing courts to set aside a contract in which a party in a superior bargaining position took advantage of the other party, and the consideration was grossly unfair

unconscionable transactions

an error about some aspect of a contract that destroys consensus


a windfall that one party to a contract stands to make at the expense of the other

unjust enrichment

the same mistake made by both parties to a contract

shared mistake

correction, by the court, of the wording of a mistake in the contract


a mistake made by only one of the parties about the terms of a contract

unilateral mistake

It is not my act

non est factum

principle that courts will not permit outside evidence to con-tradict clear wording of a contract

parol evidence rule

a separate contractual obligation that can stand alone, indepen-dent of the written contract

collateral contract

principle that contract terms apply only to the actual parties to the contract

privity of contract

provision in equity whereby one person transfers property to a second person obligated to use it to the benefit of a third


a trust inferred by the courts to benefit a third party to a contract

constructive trust

creation of a new contract through the substitution of a third party for one of the original parties to a con-tract, by the consent of all


the transfer of rights under a contract to another party


the thing or benefit that is transferred in an assignment; intangi-ble personal property, such as a claim or the right to sue

chose in action

performance by another designated person of the obli-gations under a contract rather than the actual contracting party

vicarious performance

an assignment that meets certain qualifications and under which the assignee can enforce a claim directly without involving the assignor

statutory assignment

assignment of rights that takes place involuntarily, as in the cases of death and bankruptcy

involuntary assignment

completion by both parties of the terms of a contract


performance of a contract in all but a minor aspect of it

substantial performance

an unsuccessful ( because it is rejected or prevented by the other party) attempt by one of the parties to a contract to perform its obli-gations under the contract

Tender of performance

failure to live up to conditions of a contract

Breach of contract

terms essential to the substantial performance of a contract

major terms of a contract


minor, insignificant terms or terms that are peripheral to the central obligation of the contract


an attempt to limit lia-bility under an agreement ( also exclusion or exculpatory clause)

Exemption clauses

breach of a fun-damental aspect of the contract that is not covered by an exclusion clause; a breach that goes to the very root of the contract

fundamental breach

repudiation of con-tract before performance is due

anticipatory breach

agreement by parties that a contract is ended

discharge by agreement

agreement by both sides to terminate the contract or to dis-regard a term of the contract

bilateral discharge

agreement to end a contract, with extra consideration to be supplied by the party benefiting from the discharge

agreement by both parties on some change in the contract

a substitute in consideration accepted by both parties

accord and satisfaction



condition under which the obligations of a contract will begin; also called “ subject- to” clause

condition precedent

condition under which the obligations of a contract will end

condition subsequent

interference with a contract by some outside, unforeseen event that makes performance impossible or essen-tially different in nature


frustration aris-ing when one of the parties to a contract causes or fails to prevent a frustrating event; treated as a breach of contract

Self- induced frustration

lessen a loss, for example, by victims of a breach, who have a duty to take all reasonable steps to minimize losses suffered


a contractual term that comes into effect when there is a failure to make an instalment payment and which requires that the entire debt plus expenses be paid

acceleration clause

a remedy requiring party responsible for a breach to pay an amount specified in the contract

liquidated damages

money prepaid with the provi-sion that the funds are to be forfeited in the event of a breach


a portion of the purchase price paid to the seller at the time of sale

down payment

involves an order to refrain from some offensive conduct

court order to stop offending conduct


court order issued before a trial to stop an ongoing injury

interlocutory injunction

undue delay; neglect, or omission to assert a right or claim


land, buildings attached to the land, and items called fixtures, that is, items which are attached to the land or to a building or to another fixture attached to the land

“ real property”

tangible, movable personal property that can be measured and weighed; also known as goods

Chattels ( or goods)

control over the use and repro-duction of the expression of creative work; type of intellectual property


government- granted monopoly prohibiting anyone but the inventor from profiting from the invention; gives inventors the right to profit from their inventions


any term, symbol, design, or combination of these that identifies a business service or product and distin-guishes it from a competitor


unique shapes or pat-terns that distinguish manufactured arti-cles; type of intellectual property

industrial designs

confidential information that gives a business competitive advan-tage

trade secrets

right to uninterrupted pos-session of land for a time. The amount of time is determined by the nature of the estate

estate in land

highest interest in land, equivalent to ownership; an estate grant-ing possession for an infinite time

fee simple

an interest in land ending at death

life estate

right of original owner to retake possession of property upon death of life tenant

reversionary interest

third party with the right to the remainder of the fee simple after the death of a life tenant


protection of the rights of spouse in certain matrimonial property; have been modified or abolished in most jurisdictions

Dower rights

rights giving a spouse a claim to a substantial portion of family property

homestead rights

the right of a person other than the owner to use a portion of private property


type of easement that allows the crossing of another’s land

right of way

property that has the advantage of an easement

dominant tenement

the property subject to an easement

servient tenement

easements giv-ing utilities or other bodies rights to run power or sewer lines across private prop-erty

Statutory easements

a non- exclusive right to use prop-erty; revocable permission to use anoth-er’s land


a right to the use of land, acquired through free use of that land without interference over a number of years

easement acquired by prescription

a right to actual pos-session, which can be acquired by non-contested use of the land

adverse possession

set of restrictions placed on all the properties in a large development

building scheme

ownership of land by two or more people with equal undi-vided interests in it

tenancy in common

shared property ownership with right of survivorship

joint tenancy

owner’s removal of chattel he or she has affixed; separation or division of joint ownership; action by one of the co- owners that is inconsistent with joint tenancy


a subsidiary contract creating an obligation to hold an offer open for acceptance until the expiration of a specified time

option agreement

an agreement where title will be transferred at some time in the future, typically once the property is fully paid for; an agreement that grants possession of property to the purchaser pending full payment of the price

agreement for sale

first stage in the purchase of real property; also referred to as an interim agreement between vendor and purchaser

agreement of purchase and sale

document transfer-ring an interest in property

deed of conveyance

a means of register-ing and tracking property deeds

registration system

registration system that guarantees title to real property

land titles system

company composed of members holding shares in it; method of acquiring residential accommodation


means of securing loans; title of property is held by the moneylender as security in some jurisdictions; in other jurisdictions, a mortgage is simply a charge against title


an interest in land retained by the mortgagor even after default

equity of redemption

court process ending the mortgagor’s right to redeem


Court order that property be sold during redemption period

order for judicial sale

automatically renewing tenancy with no specific termination date

periodic tenancy

lease a secured arrangement whereby possession of the goods goes to the les-see, while the title to the goods remains with the lessor


lease executed by lessee of land or premises to a third party for a shorter term than that which the lessee holds


an obligation to deliver possession of vacant premises to the tenant at the beginning of the lease period

vacant possession

situation in which tenant fails to leave after lease has expired and owes compensation to the landlord

tenancy at sufferance

a court order to reduce the rent to be paid to compensate for breach of lease by landlord


requirement by the landlord that the tenant who breached the lease vacate the property


equitable prin-ciple that when a landlord retakes a prop-erty because of a failure to pay rent prior to the end of the lease term, the tenant can pay the arrears and apply in the court to have the lease reinstated

relief against forfeiture

seizure by landlord of any prop-erty left by tenant and holding of it until the rent is paid or sale of it to pay rent owing

distress (or distraint)

temporary possession by one person of chattels owned by another


the owner giving up possession of property in a bailment


person acquiring possession of personal property in a bailment


goods being of such a nature that one part or quantity may be replaced by another equal part or quantity of simi-lar quality


bailment involving a mutual benefit or consideration flowing between the parties

bailment for value

author’s right to prohibit others, including any new owner of a cre-ative work, from distorting or degrading it

moral rights

category of works that are no longer copyrighted and may be used by anyone

public domain

use of copyrighted material ( as permitted under Canadian law) for the purpose of research or private study, criticism or review, or news reporting

fair dealing

determination of who will suffer the greatest injury if the damage were allowed to continue

balance of convenience

court order to seize offending material before trial

Anton Pillar order

court order pro-hibiting offending conduct (seems the same as injunction)

permanent injunction

order directing the defen-dant to deliver all copies of the infringing items in his or her possession or control to the copyright owner

delivery up

a new remedy enabling a court to award damages that it “ considers just” in the circumstances

statutory damages

a new remedy allowing a court to order a wrongdoer to refrain from future infringements of copyright in other works owned by the plaintiff copyright owner

enhanced injunction

an arrangement allowing a court to make a decision based on affidavit evidence

summary procedures

a business’s reputation and ongoing relations with customers and product identification


potential loss due to destruction or damage to goods, injury, or other even-tuality


sales contracts in which one of the parties has been designated as being responsible for paying the costs involved in the shipping of those goods as well as arranging insurance

CIF Contracts ( cost, insurance, and freight)

sales con-tracts in which the parties have agreed that the seller will bear the risk until a specified point in the transport process

FOB Contracts (free on board)

sales contracts in which the seller main-tains the proprietary rights or title as well as control over the possession of those goods until they are delivered to the buyer’s premises and paid for

COD Contracts ( cash on delivery)

a receipt for goods in the care of the shipper, accompanied by an undertaking to move the goods or deliver identical goods to a designated place

Bill of Lading

a condition that the seller, or anyone claiming through the seller, will not interfere with the buyer’s use and enjoyment of the property

quiet possession

a claim registered against property, such as a mortgage; charge giving the creditor the right to retain what is in his possession until his demands for pay-ment are satisfied


freedom of goods from defects that, if known, would impact the price

merchantable quality

seller who holds the goods has a lien against defaulting purchaser

seller's lien

seller’s right to stop the shipment during transit in event of default

stoppage in transit

purchases by individuals of goods or services for per-sonal use and not for resale or for busi-ness purposes

consumer transactions

a merger in which one competitor buys out another

horizontal merger

a merger of a supplier and a retailer

vertical merger

a merger of com-panies not in direct competition

conglomerate merger

sales made to consumers at their dwellings or places of business

door-to-door sales or direct sales

a statutorily defined period during which purchasers in door-to- door sales may change their minds and rescind a contract

cooling-off period

a type of sales practice in which the purchaser supplies a seller with a list of friends or acquaintances and receives a benefit when sales are made to those people

referral selling

an innocent third party entitled to collect on a negotiable instrument despite any claims of the original parties

holder in due course

person creating the negotiable instrument


the person designated on the instrument to receive the money to be paid out


a negotiable instrument by which the drawer directs the drawee to pay out money to the payee; drawee need not be a bank, and the instrument may be made payable in the future

bill of exchange

bill of exchange drawn on a bank, payable on demand.


a promise to pay the amount stated on the instrument

promissary note

means of transferring funds by cheque where payment is, in effect, guaranteed by the bank

certified cheque

person who signs the back of a cheque, usually assuming the obligation to pay it if the drawee or maker defaults