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174 Cards in this Set
- Front
- Back
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a voluntary exchange of prom-ises creating obligations that, if defaulted on, can be enforced and remedied in the courts |
contract |
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an agreement under seal |
formal contract |
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written or verbal con-tract not under seal, also called a parol contract |
simple contract |
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a simple contract that may be verbal or written but is not under seal |
parol contract |
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contract in which the parties have expressly stated their agree-ment, either verbally or in writing |
express contract |
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an agreement inferred from the conduct of the parties |
implied contract |
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an agreement legally bind-ing on both parties |
valid contract |
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an agreement that is not legally binding because an essential ele-ment is missing |
void contract |
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an agreement that has legal effect but that one of the parties has the option to end |
voidable contract |
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an otherwise binding contract that the courts will not enforce, such as a contract that does not satisfy the Statute of Frauds |
unenforceable contract |
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one that is void because it involves the performance of an unlaw-ful act |
illegal contract |
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a contract in which there is an exchange of promises: both parties assume an obligation |
bilateral contract |
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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 |
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a tentative promise to do some-thing if another party consents to do what the first party requests |
offer |
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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 |
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term making a con-tract conditional on future events |
“ subject- to” clauses |
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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 |
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invitation to engage in the bargaining process |
invitations to treat |
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when a person cannot understand the nature or consequences of his acts |
insanity |
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withdrawal of an offer before acceptance ( must be communicated to the offeree) |
Revocation |
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a new offer, proposal of which rejects and terminates the offer available until then |
counteroffer |
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contract with fixed terms prepared by a business |
standard form contracts |
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agreement by one party to the terms of the offer made by another |
acceptance |
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principle that mailed accep-tance is effective when and where it is dropped into a mailbox |
postbox rule |
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a one- sided agree-ment that the courts will not enforce |
gratuitous promise |
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something com-pleted before an agreement is made; it is not valid consideration |
Past consideration |
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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 |
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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 |
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persons under the age of major-ity ( also called minors) |
infants or minors |
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the essential goods or ser-vices required to function in society, such as food, clothing, and shelter |
Necessaries |
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a contract yet to be performed; a contract at the stage when an agreement has been made but before performance is due |
executory contract |
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a contract at the stage when one party has performed and the other has not |
partially executed contract |
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a fully performed con-tract; a contract at the stage when both parties have performed or fulfilled their obligations |
executed contract |
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an indication by one party to the other that there will be a failure to honour the contract ( expression can be expressed or implied) |
repudiation |
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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 |
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a primary obligation of a third party to pay a debt along with the debtor |
indemnity |
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any document that provides information or proof |
evidence in writing |
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an untrue statement of fact; an incorrect or false representa-tion |
Misrepresentation |
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a failure to reveal facts; if a duty to disclose exists, silence may constitute misrepresentation |
non- disclosure |
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another term for fidu-ciary duty |
utmost good faith |
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a false state-ment made honestly and without care-lessness by a person who believed it to be true |
innocent misrepresentation |
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amounts to the undoing of a contract, returning the parties to the posi-tions they were in before the contract |
Rescission |
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absence of wrongdoing on the part of a person seeking an equitable remedy |
clean hands |
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force or pressure to enter into a contract |
duress |
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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 |
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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 |
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an error about some aspect of a contract that destroys consensus |
mistake |
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a windfall that one party to a contract stands to make at the expense of the other |
unjust enrichment |
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the same mistake made by both parties to a contract |
shared mistake |
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correction, by the court, of the wording of a mistake in the contract |
rectification |
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a mistake made by only one of the parties about the terms of a contract |
unilateral mistake |
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It is not my act |
non est factum |
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principle that courts will not permit outside evidence to con-tradict clear wording of a contract |
parol evidence rule |
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a separate contractual obligation that can stand alone, indepen-dent of the written contract |
collateral contract |
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principle that contract terms apply only to the actual parties to the contract |
privity of contract |
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provision in equity whereby one person transfers property to a second person obligated to use it to the benefit of a third |
trust |
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a trust inferred by the courts to benefit a third party to a contract |
constructive trust |
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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 |
novation |
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the transfer of rights under a contract to another party |
assignment |
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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 |
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performance by another designated person of the obli-gations under a contract rather than the actual contracting party |
vicarious performance |
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an assignment that meets certain qualifications and under which the assignee can enforce a claim directly without involving the assignor |
statutory assignment |
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assignment of rights that takes place involuntarily, as in the cases of death and bankruptcy |
involuntary assignment |
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completion by both parties of the terms of a contract |
performance |
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performance of a contract in all but a minor aspect of it |
substantial performance |
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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 |
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failure to live up to conditions of a contract |
Breach of contract |
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terms essential to the substantial performance of a contract major terms of a contract |
Conditions |
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minor, insignificant terms or terms that are peripheral to the central obligation of the contract |
warranties |
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an attempt to limit lia-bility under an agreement ( also exclusion or exculpatory clause) |
Exemption clauses |
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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 |
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repudiation of con-tract before performance is due |
anticipatory breach |
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agreement by parties that a contract is ended |
discharge by agreement |
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agreement by both sides to terminate the contract or to dis-regard a term of the contract |
bilateral discharge |
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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 accord satisfaction |
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condition under which the obligations of a contract will begin; also called “ subject- to” clause |
condition precedent |
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condition under which the obligations of a contract will end |
condition subsequent |
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interference with a contract by some outside, unforeseen event that makes performance impossible or essen-tially different in nature |
Frustration |
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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 |
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lessen a loss, for example, by victims of a breach, who have a duty to take all reasonable steps to minimize losses suffered |
mitigate |
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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 |
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a remedy requiring party responsible for a breach to pay an amount specified in the contract |
liquidated damages |
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money prepaid with the provi-sion that the funds are to be forfeited in the event of a breach |
deposit |
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a portion of the purchase price paid to the seller at the time of sale |
down payment |
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involves an order to refrain from some offensive conduct court order to stop offending conduct |
injunction |
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court order issued before a trial to stop an ongoing injury |
interlocutory injunction |
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undue delay; neglect, or omission to assert a right or claim |
laches |
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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” |
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tangible, movable personal property that can be measured and weighed; also known as goods |
Chattels ( or goods) |
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control over the use and repro-duction of the expression of creative work; type of intellectual property |
Copyright |
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government- granted monopoly prohibiting anyone but the inventor from profiting from the invention; gives inventors the right to profit from their inventions |
patents |
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any term, symbol, design, or combination of these that identifies a business service or product and distin-guishes it from a competitor |
trademarks |
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unique shapes or pat-terns that distinguish manufactured arti-cles; type of intellectual property |
industrial designs |
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confidential information that gives a business competitive advan-tage |
trade secrets |
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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 |
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highest interest in land, equivalent to ownership; an estate grant-ing possession for an infinite time |
fee simple |
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an interest in land ending at death |
life estate |
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right of original owner to retake possession of property upon death of life tenant |
reversionary interest |
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third party with the right to the remainder of the fee simple after the death of a life tenant |
remainderman |
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protection of the rights of spouse in certain matrimonial property; have been modified or abolished in most jurisdictions |
Dower rights |
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rights giving a spouse a claim to a substantial portion of family property |
homestead rights |
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the right of a person other than the owner to use a portion of private property |
easement |
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type of easement that allows the crossing of another’s land |
right of way |
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property that has the advantage of an easement |
dominant tenement |
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the property subject to an easement |
servient tenement |
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easements giv-ing utilities or other bodies rights to run power or sewer lines across private prop-erty |
Statutory easements |
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a non- exclusive right to use prop-erty; revocable permission to use anoth-er’s land |
licences |
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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 |
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a right to actual pos-session, which can be acquired by non-contested use of the land |
adverse possession |
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set of restrictions placed on all the properties in a large development |
building scheme |
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ownership of land by two or more people with equal undi-vided interests in it |
tenancy in common |
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shared property ownership with right of survivorship |
joint tenancy |
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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 |
severance |
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a subsidiary contract creating an obligation to hold an offer open for acceptance until the expiration of a specified time |
option agreement |
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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 |
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first stage in the purchase of real property; also referred to as an interim agreement between vendor and purchaser |
agreement of purchase and sale |
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document transfer-ring an interest in property |
deed of conveyance |
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a means of register-ing and tracking property deeds |
registration system |
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registration system that guarantees title to real property |
land titles system |
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company composed of members holding shares in it; method of acquiring residential accommodation |
cooperative |
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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 |
mortgage |
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an interest in land retained by the mortgagor even after default |
equity of redemption |
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court process ending the mortgagor’s right to redeem |
foreclosure |
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Court order that property be sold during redemption period |
order for judicial sale |
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automatically renewing tenancy with no specific termination date |
periodic tenancy |
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lease a secured arrangement whereby possession of the goods goes to the les-see, while the title to the goods remains with the lessor |
leases |
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lease executed by lessee of land or premises to a third party for a shorter term than that which the lessee holds |
sublet |
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an obligation to deliver possession of vacant premises to the tenant at the beginning of the lease period |
vacant possession |
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situation in which tenant fails to leave after lease has expired and owes compensation to the landlord |
tenancy at sufferance |
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a court order to reduce the rent to be paid to compensate for breach of lease by landlord |
abatement |
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requirement by the landlord that the tenant who breached the lease vacate the property |
forfeiture |
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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 |
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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) |
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temporary possession by one person of chattels owned by another |
bailment |
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the owner giving up possession of property in a bailment |
bailor |
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person acquiring possession of personal property in a bailment |
bailee |
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goods being of such a nature that one part or quantity may be replaced by another equal part or quantity of simi-lar quality |
fungibles |
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bailment involving a mutual benefit or consideration flowing between the parties |
bailment for value |
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author’s right to prohibit others, including any new owner of a cre-ative work, from distorting or degrading it |
moral rights |
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category of works that are no longer copyrighted and may be used by anyone |
public domain |
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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 |
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determination of who will suffer the greatest injury if the damage were allowed to continue |
balance of convenience |
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court order to seize offending material before trial |
Anton Pillar order |
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court order pro-hibiting offending conduct (seems the same as injunction) |
permanent injunction |
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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 |
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a new remedy enabling a court to award damages that it “ considers just” in the circumstances |
statutory damages |
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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 |
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an arrangement allowing a court to make a decision based on affidavit evidence |
summary procedures |
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a business’s reputation and ongoing relations with customers and product identification |
goodwill |
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potential loss due to destruction or damage to goods, injury, or other even-tuality |
risk |
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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) |
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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) |
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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) |
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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 |
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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 |
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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 |
lien |
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freedom of goods from defects that, if known, would impact the price |
merchantable quality |
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seller who holds the goods has a lien against defaulting purchaser |
seller's lien |
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seller’s right to stop the shipment during transit in event of default |
stoppage in transit |
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purchases by individuals of goods or services for per-sonal use and not for resale or for busi-ness purposes |
consumer transactions |
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a merger in which one competitor buys out another |
horizontal merger |
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a merger of a supplier and a retailer |
vertical merger |
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a merger of com-panies not in direct competition |
conglomerate merger |
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sales made to consumers at their dwellings or places of business |
door-to-door sales or direct sales |
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a statutorily defined period during which purchasers in door-to- door sales may change their minds and rescind a contract |
cooling-off period |
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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 |
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an innocent third party entitled to collect on a negotiable instrument despite any claims of the original parties |
holder in due course |
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person creating the negotiable instrument |
drawer |
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the person designated on the instrument to receive the money to be paid out |
payee |
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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 |
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bill of exchange drawn on a bank, payable on demand. |
cheque |
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a promise to pay the amount stated on the instrument |
promissary note |
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means of transferring funds by cheque where payment is, in effect, guaranteed by the bank |
certified cheque |
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person who signs the back of a cheque, usually assuming the obligation to pay it if the drawee or maker defaults |
endorser |
