LAW 2101 LECTURE VIDEO NOTES ➢ MODULE 10: PROPERTY LAW ➢ VIDEO 1: REAL PROPERTY ● Feudalism: king owned all the land in the entire country ○ Only the king could grant rights in the land ↳ Granted to those who provided services to him and were loyal to him ○ Owing Land = wealth, power, and influence ○ Those who were granted property, they became tenants - ○ This is how king maintained an army Foundation of property law in UK and CAD is feudalism ● Property is a relationship between people with respect to things. ● REAL PROPERTY is land and buildings and anything attached to them. ○ ● REAL PROPERTY is fixed and not moveable. FIXTURES are goods that are attached to real property. ○ Fixtures begin as personal property but when attached to real property they become real property. ○ Ex: toilet in a house ↳ Toilet is a personal property, but once attached in the house, it becomes part of the house (real property) ○ ● How to determine if something was intended to be fixtures? ↳ Was the attachment intended to be permanent or temporary? ↳ How much damage would be caused if the thing was removed? PROPERTY is a relationship between people with respect to things ● PROPERTY RIGHTS are not absolute. ○ They are always relative ↳ EX: Money finding after it was lost and someone else claimed that the money is theirs because they saw it first even though you were the one that picked it up ● Property law involves answering: ○ Who has rights to the thing? ○ What rights do they have? ● WHAT KINDS OF RIGHTS CAN PEOPLE HAVE IN REGARDS TO PROPERTY? ● Possessory interests in land (right to possession) ○ Fee Simple ↳ Normally ownership ↳ Greatest bundle of rights one can have privately in land ↳ It’s not absolute - There are other people who have rights in regards to your home - Ex: Government can take your house and built something through it and pay you ○ Life Estate ↳ Person who has interest, has right to possess that property but only during their lifetime ↳ After they die, it goes somewhere else ↳ Must be a remainder interest - Ex: i give life insurance to my parents (during their lifetime) but remainder interest is to my kids (after parents die) ○ Leasehold Estate ↳ Rights to possession under a contract ↳ Under a lease ↳ The lease gives a possessory interest in the land called leasehold estate - ● Landlord has fee simple Non possessory interests in land ○ Easements ↳ Give people rights to use estate ↳ Right to use the land for a specific purpose ↳ Ex: the pipe going through my house is easement for the pipeline company to fix pipelines ○ Rights of Way ↳ Give people rights to use estate ↳ Ex: shared driveway between two houses - Driveway actually belong to one of the properties but it’s subject to a right of way in subject to the one that doesn’t own it ○ ○ Licenses ↳ Gives right to profit off of the land ↳ Commonly thought of as real property (controversial) Restrictive Covenants ↳ Promises that run with the land ↳ Contrast it with a contractual right - Ex; there's a contract that says “neither you or me can build a pool in the backyard”. But if someone else buys the house who is not listed on the contract, he can build a pool - But if the contract says “no owner should ever build a pool” then the person who bought the house are now not allowes as they are part of the contract since they are the owner ↳ Must be negative - Can’t have an affirmative restrictive covenant - You can’t have a contract that forces someone to build a home ↳ ○ ● Lockmath holdings v earl Mortgages ↳ Interests in land that intend to secure repayment in a loan ↳ Used to be transfer of title ↳ Foreclosure: mortgagee can take possession of the property - We use power of sale - Lender has right to sell the property and use the $ to repay ↳ Mortgage is a security for a loan ↳ Bank lends you money to buy house ↳ You give interest in your house to secure payment of the loan (mortgage) ↳ Mortgagor: borrower (owes the money) ↳ Mortgagee: the bank (lender) Joint tenancy vs tenancy in common ○ Joint Tenancy (joint ownership) ↳ Right of Survivorship - If one joint owner dies, their interest in the property passes to the survivor ↳ ○ Equal Interests Tenancy in Common (co-ownership) ↳ No Right of Survivorship - ↳ If one wonder dies, interest goes to their estate not the other person Potential Unequal Interests - Ex: ownership of 20%, 20%, 60% ↳ Ex: business ownerships ↳ Peters v Peters Case - About a cottage that three brothers owned but couldn’t separate it equally so the court ruled that they must sell it and share the profit ● Transfer of interests in land ○ Agreements of Purchase & Sale ○ Land Registry System ↳ ○ Land Titles System ↳ ○ Used to be one place where all the documents of land ownership were Computer based electronic system that has all ownerships Title Insurance ↳ Common place in residential and commercial property ↳ Ensures against defects in title ↳ Covers fraud ↳ Reimburses for any loss suffered ↳ Semelhago Case ● Condominiums ○ Combination of: ↳ Fee Simple (apartment or unit) - ↳ Exclusive rights of possessions Co-ownership (common areas) - ● Land is no longer unique Stairwell, laundry Cooperative housing ( another method for co-ownership) ○ Not for profit that owns the property ○ Much less expensive and upfront cost is much lower because they don’t own the place ↳ ● There’s no profit ○ Members do not own their units. ○ Members pay enough to cover actual costs and repairs. ○ Members have a right to vote on how the co-op is run. Landlord and tenant ○ Contractual and Property Rights ○ Run with the Land (leases) ○ Must be for Definite Term ○ Rent is an intangible form of personal property ● Residential tenancies ● The renter are protected from: ○ Discrimination ○ Dispute Resolution ○ Deposits ○ Rent Increases ○ Termination and Eviction ○ Landlord’s Right of Distress ● Commercial tenancies ○ Basic Rent and Additional Rent ○ Gross vs. Net Leases ○ Permitted Use of Premises ○ Rights of Renewal ○ Assignment and Sublease ○ Term and Termination ○ Remedies for Breach ➢ VIDEO 2: PERSONAL PROPERTY ● PERSONAL PROPERTY is everything that is not real property. ○ PERSONAL PROPERTY is either tangible or intangible. ↳ See and touch or stuff you can’t see and touch - ↳ Shares, insurance (intangible) It sometimes gets lost (only tangible personal property) - Ex: A car, ring, wallet ➢ Finders - Keepers (when you lose a personal property) ● A person who finds personal property has a right to claim it against anyone except the true owner. ● Ownership is the person who lost the item ● Possession of item is the one that finds the object ○ Weaker property claim than the true owner but stronger property claim compared to a stranger ● Private property can be divided into two things ○ Private property that can be accessible to the public ↳ ○ (Ex: university campus) Private property that is not publicly accessible ↳ Ex: My house or my office at the university campus ➢ Bailment (with tangible things) ● A bailment is when one person (the bailee) is in possession of goods that belong to another person (the bailor). ● Possession ● Bailor ● Examples of bailment: Bailee ○ renting a bike ○ taking a car to a mechanic for repairs ○ having a piano moved ○ lending a computer to a friend ○ storing goods in a warehouse ○ sending goods by FedEx ● If something bad happens to the goods, then who is responsible for the goods? ● Bailment – Standard of Care (reasonable standard of care) ○ The standard of care will depend on: ↳ the value and nature of the goods ↳ who the bailment benefits ↳ The terms of a contract - Sending goods by fedex, you agree to the contract of Fedex that they are not reliable if something gets damaged ● Bailments are common in lending a friend something, car renting ● There is a higher standard of care when: ○ goods are valuable or fragile ○ bailor informs bailee of value/sensitivity ○ bailee is an expert ○ bailment is for the benefit of the bailee ➢ VIDEO 3: INTELLECTUAL PROPERTY * ● Intellectual property protects creations of the mind but not ideas. ○ ● Protects the application of the ideas but not the ideas themselves All IP acts are all federal laws ○ Rights that are conferred are also federal ➢ Trademarks ● ● ● TRADEMARKS are words, logos or symbols that distinguish goods or services. ○ may be registered or unregistered. ○ Sound can be trademarked ○ Colors can’t Registered Trademarks provide: ○ More affective ○ Provide rights of use across Canada ○ The registered trademark is protected for 5 years ○ Protection against a challenge based on prior use after 5 years ↳ Lasts 15 years of protection (renewable) ↳ Only affective in Canads Trademark infringement is either ○ Both are torts ○ Passing Off ↳ Essentially misrepresentation causing damages ↳ Knockoffs, fakes ↳ Passing off requires: ○ - Goodwill or reputation in the mark - Misrepresentation of the public - Damages Trademark Dilution ↳ involves using a mark in a non-confusing manner that tarnishes another mark or diminishes its value. ↳ Attempt to devalue a mark ↳ Intentional tort to cause harm ↳ Ex: “ Lose the McGut” - ○ The mcdonalds logo is used as a negative trait You can use a competitor's logo in an ad but you have to emphasize the difference between the two companies (not the similarities between the two companies) ● Remedies for trademark infringement: ○ Damages ○ Injunctions ↳ Order of the court for someone to not do something ○ Accounting of Profits ○ Delivering Up ➢ Copyright ● COPYRIGHT protects original literary, artistic, musical and dramatic works. ● It protects against unauthorized copying. ● Arise automatically ○ ● If you satisfy the copyright criteria, then you automatically qualify for it Criteria for valid copyright: ○ Original (skill and judgment) ○ Fixed medium (storage) ↳ ○ Saved somewhere Some connection to Canada to gain right to Canadian copyright ● Copyrights can be registered but there’s minimal to none advantages so most people don’t register for copyright ● Performances videotaped can be shared to everyone however, the performance itself is copyrighted ● Fairdealing allows you to do something that would normally not be allowed due to copyright as long as you fit into a certain category ● FAIR DEALING is an exception to copyright protection: ○ Review ○ Criticism ○ News reporting ↳ ○ Private study ↳ ○ Copying an article from the library for personal needs Parody or satire ↳ ● Using a picture in a news reporting to find something that was stolen Saturday night live MORAL RIGHTS are the rights of the author or artist to be associated with the work and not to have the work disparaged or humiliated. ○ Moral rights cannot be transferred. ○ Moral rights belong to the artist and creator ○ Ex: the eaton center geese work of art and them tying ribbons on the geese for christmas season ➢ Patents ● PATENTS protect inventions. (not the idea of the invention, but the invention itself) ● PATENTS provide exclusive rights to “practice” an invention. ○ To practice is to make, use or sell. ● They don’t arise automatically ● Inventions are: these can be patented ● ○ Products ○ Compositions ○ Process ○ Improvements on any of these To be patented, an invention must be: ○ ○ ○ ● ● New ↳ Misleading because it’s a disclosure requirement ↳ Most common attack for patents Useful ↳ Applied science ↳ Has to serve a useful purpose to society Not obvious Remedies for patent infringement: ○ Damages ○ Injunctions ○ Accounting of Profits ○ Delivering Up To apply for a patent ○ There needs to be a full description about the invented product ↳ ○ Set of drawings Claims of exclusivity ↳ Claim how the invention will be used exclusively ● Patent protection lasts 20 years ● Artificially created genes can be patented but naturally created genes cannot ○ Myriad ➢ Industrial designs ● INDUSTRIAL DESIGNS protect the visual appearance of a product. ○ e.g. the shape or pattern ● Industrial designs protect against manufacture, sale, rent or importation. ● INDUSTRIAL DESIGNS: ○ Must be registered for protection ○ Must be registered within 1 year of Initial use ○ Last for 10 years ○ Cannot be renewed ● Industrial designs do not extend to functional components or composition – only design or appearance. ● Estoppel means you can’t have it both ways ➢ MODULE 11: LEGAL FORMS OF BUSINESS ORGANIZATION ● List the basic forms of business organization in Canada. ● List the advantages and disadvantages of different forms of business organization. ● Analyze and solve basic forms of business organization problems. ● Explain the legal concept of sole proprietorship. ● Explain the legal concept of partnership. ● Explain the legal duties and potential liabilities of a partner. ● Describe the concept of a corporation as a legal person. ● Summarize the basic structure of a corporation. ● Describe the roles and responsibilities of people who are involved with a corporation. ● Outline basic corporate governance. ● Explain basic securities regulation. ● Analyze and solve basic corporate law problems ➢ VIDEO 1: AGENCY ● Agency results in a legally binding agreement between the Principal and the 3rd Party. ● Agency is an exception to the doctrine of privity. ● Contract is really between the principal and the third party ● Two contractual relationships ● ○ Main contract ○ Agency agreement Agents may be: ● ○ Employees ○ Partners ○ Independent Contractors ○ Directors and officers of a corporations Agency is usually created by contract ○ ● ● All that’s necessary is the agreement of both parties The “agency agreement” may cover: ○ the scope of authority ○ the duties to be performed ○ the fees to be paid Ex: need a loan for business so you go into the bank and ask the manager “how to get a million dollar loan” ● Gets told to Talk to tina and then you show her business plan ● Tina says this is a good deal for the bank so we will approve your loan on the behalf of the bank ● But the bank manager calls and says that you have to reapply for the loan because Tina did not have the authority to approve that loan ● Do you have to reapply for the loan? ○ No ↳ Tina had apparent authority which she acted in - They told you that tina will be able to help you with million dollar loan so as a result this was the authority she appeared to have ● Actual authority is the authority the agent actually has. ● Apparent authority is the authority the agent appears to have. ○ She can have this even if she has no actual authority ○ What you appear to have in front of clients ○ Apparent authority comes from the words or deeds of the principal ↳ It doesn’t come from the agent ↳ Comes from what the principal has said and done ➢ RATIFICATION ● If an agent exceeds her authority, the principal can “ratify” or adopt the agreement. ○ If an agent over exceeds their authority but the principal likes the idea, the principal can ratify the agreement if they choose ↳ Tina over exceeded their authority by approving a million dollar loan which she doesn’t have authority for ↳ but if the bank likes the business plan they can ratify the loan ● Ratification may occur by conduct. ● If the principal is unnamed(i.e. anonymous), then the agent has no apparent authority. ➢ UNDISCLOSED PRINCIPAL ● If the principal is undisclosed(i.e. it is unknown there is a principal), then the contractual relationship is between the agent and the 3rd party. ➢ AGENCY DUTIES ● Duties of the Agent: ○ ○ Fiduciary duty to the principal (best interests, etc.) ↳ Highest duty there’s in law ↳ Breach of trust ↳ Agent must act in best interest to their principal Duty of Care (act reasonably) ↳ ○ To be reasonably careful Contractual (honor the contract) ↳ Agency contract must be honored with the principal - ● Abide by the terms in the contract Duties of the Principal: ○ Contractual (honor the contract, pay the agreed upon fees, etc.) ➢ VICARIOUS LIABILITY ● Principals are vicariously liable for: ○ Agents who are employees acting in the scope of their employment ○ Agents who are acting in the scope of the agency duties ↳ sometimes, fraud, theft, etc. ● Agency agreement is based on consent of both parties between agency and principal ● Can be terminated multiple ways ● Death or insanity of either party will terminate the contract ● If the agency agreement has been terminated, but the agent goes to a 3rd party and makes an agreement on your behalf, you are abided by that contract because the 3rd party though that the agent can still make decisions on your behalf ○ Must give notice to all third parties you have encountered with that your agent no longer works with you to make sure this doesn’t happen ➢ VIDEO 2: SOLE PROPRIETORSHIPS AND PARTNERSHIPS ➢ PARTNERSHIP ● Two or more people carrying on business together for profit. ● Factors relevant in determining whether a partnership exists: ● ● ○ the sharing of profits ○ the sharing of decision making ○ the sharing of capital Default rules amongst partners: ○ Partners are equal ○ Every partner may manage ○ No remuneration for managing ○ Unanimous consent for new partners ○ No expulsion of partners ○ Death or insolvency dissolves the PP Rules regarding dealings between the partners and others: ○ Every partner is an agent of the partnership ○ Every partner is jointly and severally liable for the debts of the partnership ● Partnership is a form of business organization based on agency. ➢ LIMITED LIABILITY PARTNERSHIP ● Innocent partners are not personally responsible for the negligence of another partner. ● Consist of a General Partner and one or more Limited Partners. ● Limited partners enjoy limited liability provided they do not participate in managing the partnership business. MODULE 12 TORTS VIDEO 1: INTRODUCTION TO TORTS ● A tort is a civil wrong for which a plaintiff sues a defendant to obtain damages ○ Private wrong between private parties ○ ONE ON ONE ○ Sue someone to get money ○ Tort is about getting compensation ● Tort action brought by plaintiff ○ The one that sues ● Seeks to redress a private wrong ● Goal is monetary compensation ○ Money (damages) ● Defendant may be found liable ○ Liable: committed the act ● Lower burden of proof ○ Burden of proof in torts is “balance of probabilities” whereas in criminal law it’s “beyond a reasonable doubt” ○ Lower burden of proof because in tort law, there are less consequences ■ No jail ● Contract involves prior agreement between parties, with mutual obligations ● Torts actions involve strangers ● Tortious obligations are imposed by law ● Damages serve different purposes ○ In tort law, the parties are put in position that they were in before the act ○ In contract: put person in position that the contract put them in ● Goals of tort law ○ Compensation ■ Primary purpose of tort law, especially for plaintiff, monetary compensation ■ Barries - Fault requirement : someone needs to WIN and someone will walk away with nothing - Expenses of litigation - Defendant may not have money - Embarrassment - Ex: plastic surgery gone wrong - Insufficient evidence - Disruptive of relationships - Family may be broken up ■ We usually only sue people who are worth suing: government, people with money, companies ○ Deterrence ■ Laws ability to deter defendant from engaging in same behavior again ■ Depends on swiftness, certainty, and severity of penalty ■ Problem: tort law may impose severe penalties, but is neither swift nor certain ■ Problem : hard to deter negligence - Defendant has not sufficiently foreseen the damages ■ Affective in deformation ○ Vindication ■ Was more important historically with respect to property ■ Nominal damages may still be available, but are rarely worth pursuing ■ May have some value in defamation ○ Punishment Plaintiff wants to clear its name and make a statement that they’re innocent ■ Has declined in importance with growth of criminal law system ■ Possibility of “punishment damages” - Rarely awarded - Some jurisdiction don’t allow this ■ Suggests some moral blameworthiness - Moral wrongdoing - Failure to appreciate or guard against a risk - Moment of carelessness will lead to catastrophic loss ■ Defendant is typically not the one to feel the brunt of punishment - Not usually the defendant that has to pay in modern day - Usually paid by the insurance, employer, shareholders VIDEO 2: INTENTIONAL TORTS ● Plaintiff has a burden of proving the elements of the tort ● Battery ○ Intentionally causes harmful or offensive contact with another person ○ Protects physical integrity ○ Harmful contact: punching, slapping, kicking, striking ○ Also includes non consensual medical treatment, sexual contact - If doctor does resuscitation when patient aked Do not resuscitate ○ Plaintiff has burden of showing harmful or offensive contact ○ Burden then shifts to defendant to prove that contact was consensual ○ Consent may be implied in some circumstances - Ex: Holding out arm for flu shot - Ex: Socially accepted practices (handshake) - Ex: Participation in contact sports ○ Bettel v yim - Coal set on fire in store - Store owner starts shaking the person - And hit his nose by accident - Plaintiff had to prove that he wanted to hurt him - Intended to grab him: battery ○ Where person intends to commit harm he is to deal with the consequences even if the consequences is not what he wanted to happen - He just wanted to shake the client but by accident the person's nose was hit and started bleeding ● Assault ○ The creation of a reasonable apprehension of imminent physical contact ○ Ex: approaching someone with fists raised ○ Often a prelude to battery - Assault part is trivial but actually hitting is now battery ● Conditional threats ○ Generally not assault - Ex: if i weren’t such a nice person, I would smack you right now ○ May be assault if the defendant has the apparent intent and ability to cause imminent physical contact ○ Holcombe v whiteaker - Plaintiff wants to unaul marriage - If you take me to court ill kill you - First he just said it but second time he was banging on the door and prying to open it - Now he might cause imminent harm ○ How imminent must contact be? ● False imprisonment ○ 1 Intentionally bringing about total restraint of plaintiffs movement ○ 2 Barriers can be physical or psychological - Campbell v Kresge - Plaintiff was suspected of shoplifting - Off duty police officer followed and said “obey so there’s no embarrassment” - Police officer exerted psychological imprisonment because even though he didn’t physically do anything, he hinted with words that if she doesn’t follow his orders, something will happen that will embarrass her - Court found this to be wrongful action ○ Once plaintiff establishes total restraint, defendant may prove legal authority - Police officers VIDEO 3: DEFENSES TO INTENTIONAL TORTS ● CONSENT ○ Defendant is not liable if plaintiff consented to the alleged action ○ Can be expressed or implied ○ Extends to risks normally inherent in that act ↳ In a fist fight, you agree to being punched and getting hurt, but you don’t give consent to being stabbed or shot ↳ Wright v Mclean - ↳ Two guys in a mud fight and one of them got struck in the head - Guy got hurt and sued the other - Court said that the plaintiff consented to getting hurt in the mud fight Contact sports - Hockey, football, - Includes contact that is legal in the sport - May include rule infractions that are common in the sport - - Getting tripped or elbowed Does not extend to violent conduct that is outside the normal scope of the sport - Getting hit by a stick in hockey on purpose ● FACTORS VIOLATING CONSENT: FRAUD ○ Only if defendant responsible for or aware of plaintiff’s misapprehensions ↳ You consent to a procedure because the doctors says you are sick, but he takes your organ because another patient needs it ○ May include non-disclosure ↳ If you are HIV positive and you have sex with someone but not telling them ○ Nature of act vs collateral matters ↳ Ex: marital status - ○ If you have sex with someone that is married but they tell you they are single, that’s just collateral matter ↳ Ex: fame/ identity ↳ Ex: STI’s R v Cuerrier ↳ Defendant withheld that they had HIV before having sex ↳ Does non disclosure of HIV- positive status vitiate consent to sex ↳ May effectively change the nature of the act - Withholding that information, changes the consent of the plaintiff - They consented to having sex with someone healthy, not having sex with someone that has a serious life threatening disease ↳ Deception + detriment ↳ Significant risk of serious bodily harm - Recent interpretation i R v Mabior - If risk of transmission is low, (person used a condom or they didn’t finish in the other person) ● FACTORS VITIATING CONSENT: PUBLIC POLICY ○ Sometimes courts may disallow to just use the defense of consent if they think that the consent is simply not enough ○ Mismatched opponents to consensual fights ○ Consent to serious bodily harm ○ Exploitation or abuse of trust ↳ Norberg v wynrib - Plaintiff was addicted to prescription drugs and doctor knew she was addicted but said that if she had sex with him, he would prescribe her drugs ○ Blood sports ↳ Too much of a risk of harm sometimes ● Self defense: requirements ○ Honest and reasonable belief that harmful contact is imminent ↳ You have to honestly know there’s ○ Must use reasonable force ○ Cannot be used once danger has passed ○ Same requirements where defending third parties ↳ Gambriell v Caparelli - Son was involved in a fight and the mother came out to see them fight - The mom warned multiple times to stop the fight with words but nothing happened - She went and grabbed a garden tool and hit the neighbor - She didn’t cause serious injuries and was protecting ○ Preemptive force ↳ Need not wait for plaintiff to strike the first blow only if it’s necessary ↳ R v Lavallee - Woman was abused for years and the husband said that if she didn’t kill him, he would kill her so she shot him as he was walking away - Battered woman syndrome - She felt truly in danger and with a history of being abused she truly believed that he would kill her - Court said she was justified for using primitive force VIDEO 4: INTRODUCTION TO NEGLIGENCE ● Common examples of negligence claims ○ Motor vehicle crashes ○ Defective products: failure to warn ○ Medical malpractice ○ Slip and fall (occupiers liability) ↳ You slip in a type of property ↳ Property owner has responsibility to make the property safe ○ Misrepresentation leading to economic loss ↳ You have an accountant and she misrepresents something to you, as a result you lose money ● Elements of a negligence claim ○ Duty of care ○ Breach of standard of care ( carelessness) ↳ Act like a reasonable person ↳ Must be proven that the defendant was acting carelessly and that is the result of the damaged not because of other factors ○ Causation of harm to plaintiff ○ Damages ( plaintiff must suffer actual loss) ● Defense arguments ○ Damages were too remote ↳ Ex: you drop a cigarette and catches fire, and burns down house - Unfair to hold someone responsible because they did such a small act even though such a big catastrophe happened ○ Contributory negligence ○ Voluntary assumption of risk ↳ Ex: When someone signed a waiver - They know that there are risks involved in an act ○ Inevitable accident ↳ No matter how much care the defendant did, the damages still would have occurred VIDEO 5: THE DUTY OF CARE ● Donoghue v Stevenson ○ The snail in the ginger beer bottle ○ Glass made of opaque glass ○ Plaintiff suffered from gastric problem after drinking it ○ Liability of food/ drink manufacturers in the absence of contract ○ Before 1920’s there was the issue that you had to be in direct contact with the manufacturer ↳ But in this case, the manufacturer sold it to the bar, the bar sold the drink to the plaintiffs friend who then gave the drink to her friend - Thredore, the manufacturer had no contact with the actual plaintiff ○ Case established that there must be duty of care between manufacturer and the customers ○ Important case because of neighbor principle ↳ Basis of all future duty decisions ● The modern test in canada: cooper v Hobart ○ Stage 1: establishes prima facie duty ↳ Reasonable foreseeability of harm ↳ Proximity of relationship between plaintiff and defendant ○ Stage 2 : residual policy considerations ( burden of proof for defendant) ↳ Indeterminate liability - Large liability; impossible for defendant to control ↳ Government policy decisions ↳ Interference with other legal relationships ● Example of residual policy: dobson v dobson ○ After a motor vehicle accident ○ The unborn child was injured ○ Should duty of care be imposed on a pregnant woman towards her unborn child? ○ Majority: maternal autonomy dedicates against imposing a duty of care: “ lifestyle choices” would become subject of litigation ○ Dissent : allowing child to claim against mother in case of negligent driving imposes no additional burdens on mother and to collect from insurance ● Duty to rescue ○ No general common law duty to rescue ○ Exceptipons ↳ Special relationship between parties (parent/ child) ↳ Where defendant prevents others from assisting the plaintiff - Zelenko ↳ Where defendants worsens the plaintiffs situation ↳ Where defendant induces reliance ● Duty to control/ protect ○ Defendant places plaintiff in dangerous situation ↳ Crocker case - Defendant resort served the plaintiff alcohol and then allowed the person to participate in tubing competition while drunk - Guy was paralyzed - Bar was liable for his injuries because they let him get drunk and allowed him to participate ○ Where defendants role is aimed at protecting those in the plaintiffs positions ↳ Child services ○ Where defendant's role is to protect from dangerous person ↳ Prison or parole officers ● Manufacturers duty to warn ○ Where product may be dangerous when misused ○ Need not warn of obvious risk ↳ Ex: knives will cut you ○ More stringent duty for pharmaceuticals or products that might be ingested ● Duties related to reproduction ○ Wrongful pregnancy ↳ Claim by parent for cost associated with unwanted child ○ Wrongful life ↳ Claim by child born with disability VIDEO 6: OTHER ELEMENTS OF NEGLIGENCE ● The standard of care ○ The reasonable person test: arland v Taylor ○ A reasonable person description ↳ Is not perfect or superhuman ↳ not someone who is risk averse or completely reckless ○ The test sets the base idea of how a citizen should act and the expectations are in the middle because no one is perfect ● Other factors affecting the standard of care ○ Probability of injury ○ Severity of injury ↳ Bolton v Stone - Plaintiff walks by cricket ground and a ball hit him across the head - Probability of injury is low but the severity could be high because you can get head injuries - Given how unlikely this could happen, should the defendant be thinking about this and act in accordance that this could happen? - The court ruled no because for this to happen the probability of injury is very small ○ Cost of avoiding the risk ↳ A reasonable person may disregard some risks if cost of avoidance is too high ↳ More lenient id the defendant is an important task for society - Police, firefighters, doctors ○ A social utility of defendant's conduct ● Professional standards, customs ○ Standard of care of reasonable professional in the field ○ Compliance with customary practice usually gives sufficient, unless practice itself is fraught with obvious risk ↳ Even a lay person would understand that it is not professional to do the task ○ Important experts ↳ White v Turner - ↳ Plastic surgeons Ter Neuzen v Korn - Customary practice - Defendant did not test semen for HIV when inseminating someone ● Causation ○ The but for test (barnett) ○ But for the defendants negligence would this have made a difference in the plaintiff’s injury ○ Barnett case: arsenic poisoning ● Modification : Cook v Lewis (adopted in Clements v Clements) ○ A few men were out hunting, two men who shot towards the defendant and ended up shooting his eye ○ The issue was that the plaintiff was not able to tell the court which men was the one that actually shot the eye ○ Variation in causation ○ Two or more negligent defendants ○ Clear that the defendants were responsible for plaintiff’s injury ○ Plaintiff is unable to prove which one caused the loss (through no fault of own) ○ Material contribution to risk ● Plaintiff can only sue in negligence if they suffer loss and actually lost something ○ Physical injury ○ Psychiatric injury ↳ Consider related losses: lost earning capacity, costs of future care, pain and suffering ○ Property damage ○ Economic loss ● Remoteness of damages ○ May allow defendant to avoid liability if losses are unforeseeable or disproportionate to the negligent act ↳ Can be difficult to predict ↳ Ex: falkenham - Defendant crashed into fence, plaintiff’s cows ate the staples from the fence and died- not too remote ○ Thin skulled plaintiff ○ Drop a cigarette on the floor and it starts a huge fire ● Defenses to Negligence ○ Contributory negligence ↳ Allows apportionment of loss ↳ Ex: gagnon seatbelts - ↳ The plaintiff wasn’t wearing a seatbelt when riding a motorcycle and when there was an accident, this contributed to their damage Plaintiff’s damages will be reduced if the court believes that the plaintiff contributed to the loss ○ Voluntary assumption of risk ↳ Ex: waivers ↳ Must accept physical and legal risk ○ Participation in criminal or immoral act ↳ Constructed narrowly ↳ Hall v Herbert - Impaired driving when the accident happened ↳ Will not prevent plaintiff from collecting compensation ↳ Cannot profit from criminal wrongdoing VIDEO 7: DEFAMATION ● Elements of a defamation action ○ Defamation is the action of damaging the good reputation of someone; slander or libel. ○ Defamatory material ↳ Anything that lowers the plaintiff in the esteem of ordinary members of society ↳ Includes literal meaning and innuendo (insinuation) ↳ Words, images, gestures,overall impression ○ Reference to the plaintiff ↳ ↳ Includes name or image ↳ Includes identification by association ↳ - Story about the plaintiffs mother - You associate plaintiff with its mother Does not generally include individual members of large groups ○ Publication ↳ Need to prove that the defamatory statements were published ↳ Need not be in traditional media ↳ Includes communication to a third party who hears and understands it ↳ Every repetition is a new publication ↳ Anyone involved in publication can be found liable ● Defenses: justification (truth) ○ Maybe the best defense because it’s a complete defense ○ Plaintiff cannot complain about damage to reputation that plaintiff essentially deserves ○ Includes publication out of spite or malice ○ Does the truth seem fair? The truth hurts. ○ Hakim v Laidlaw Transport ↳ Plaintiff was a school bus driver who was accused of sexual assault against a girl ↳ Then the school sent out an email to the parents of the school stating that he was charged ↳ The bus driver then sued to school for defamation saying that he was innocent until proven guilty ↳ The court ruled that the school did not do anything wrong because in the email the school stated that he was only charged - They only said the truth ● Defenses: absolute privilege ○ Attaches to specific occasions or parties only ↳ Executive officers of government ↳ Parliamentary proceedings - ↳ Anything said in the parliament Judicial proceedings - Anything said in the court ○ Honesty and candor so important that the person must be allowed to speak freely ○ Includes publication out of malice ● Defenses: qualified privilege ○ While speaker has duty to make statement and receiver has duty to receive it ○ This defense has less protection ○ Defeated by evidence of malice ↳ Erickson v X ○ Includes ↳ Protection of own or others interests - ↳ Protection of common interests - ↳ Ex: your reputation is under attack and you rebuttal Ex: employment reference letter, credit report Protection of public interest - Ex: you talk to your boss about you are worried about at work - ↳ You are concerned about the well being of work Fair and accurate reporting of public proceedings ● Defenses: fair comment ○ Usually used by media coverage ○ Protects statements of opinion ( not fact) ↳ Your opinion has to be based on at least facts ○ Comments must be based on true facts ○ Must relate to matter of public interest ○ Defeated by evidence of malice ↳ Trash your restaurant because my friend own a restaurant (not because the restaurants food is bad) ○ Includes political speech, but also sporting commentary, books and music reviews, restaurant reviews ● Defenses: Responsible communication ○ Recognized by supreme court in 2010 in decision of Grant v Torstar ○ Protects statements of fact on matters of public interest, if standard of responsible communication (journalism) met ○ Public interest is defined broadly here ○ Seriousness of allegation ○ Reliability of source ↳ If journalist uses a third party, they have to make sure that the source is honest and reputable ○ Whether plaintiff’s side of story sought out and reported ○ Urgency of matter ○ Whether inclusion of defamatory statement justifiable ○ Other considerations ● Remedies ○ If plaintiff is successful then these are the remedies ○ Injunction ○ Damages (hill v church of scientology ↳ Damages are at “large” - Jury doesn’t have to pick a specific number to a damage - It’s just a ballpark to say how much ↳ Consider totality of defendants conduct( retractions, apologies) ↳ Deterrence factor ↳ Punitive damages MODULE 13: FAMILY LAW VIDEO 1: FAMILY LIFE IN CANADA ● “continuity and change” of a family in Canada ● Changes in: ○ Social, ○ Cultural, ○ Economic, and ○ Technological environment ● Question: how to understand the continuing importance and centrality of family in a constantly changing world? ○ One of the most universal aspects of human experience. ○ One way of demonstrating how individuals accept responsibility for each other. ○ “What families do” for one another is important ● Factors relating to the change in Canadian families: ○ Aging population ○ Changing family structure ○ Declining fertility rate ○ Conjugal status over life course ○ Declining rate of marriage ○ Increase in common-law unions ○ Increased rate of divorce ● Definition of “Census Family” ○ “Census family is defined as a married couple and the children, if any, of either and/or both spouses; ○ a couple living common law and the children, if any, of either and/or both partners ○ or a lone parent of any marital status with at least one child living in the same dwelling and that child or those children.” ○ All members of a particular census family live in the same dwelling. ○ A couple may be of opposite or same sex. ○ Children may be children by birth, marriage, common-law union or adoption regardless of their age or marital status as long as they live in the dwelling and do not have their own married spouse, common-law partner or child living in the dwelling. ○ Grandchildren living with their grandparent(s) but with no parents present also constitute a census family.” ● In 2016, the number of one-census family households was 65.5% ○ 32.5% lived in non-census family households ○ 28.2% lived in one-person households ● Changing Family Structure (According to 2016 Census): ● 14.07 million private households in Canada ● 9.84 million census families in private households ● 8.23 million couple families (83.6%) ○ 6.47 million married couples (65.8%) ○ 1.75 million common-law couples (17.8%) ● 1.61 million lone parent families (16.4%) ○ 1.26 million lone female parent (12.8%) ○ 350 thousand lone male parent (3.6%) ● Birth rate ○ Total Fertility Rate (TFR) in 2019 was 1.47 births per woman ↳ Compared to 3.94 in 1959 ● Average age of first time mothers was 29.4 in 2019 ○ Compared to 23.2 in 1959 ● Because of low fertility rate, immigration likely to drive population growth in the near future ● Aging Population ○ According to the 2016 census: ↳ 16.9 % of the Canadian population was 65 or older ↳ 66.5% of the Canadian population was 15-64 ↳ 16.6% of the Canadian population was 0-14 ● Conjugal Status Over the Life Course (According to the 2016 Census): ○ 25 to 29 years: ↳ Married or common law – 1.00 million - Married – 478 thousand - Common-law – 526 thousand ○ Never married and not living common law – 1.28 million ○ 30 to 34 years: ↳ Population – 1.52 million ↳ Married – 1.01 million ↳ Common-law – 501 thousand ● Not married and not living common law – 810 thousand ● Declining Rates of Marriage ○ In 1981, approximately 65% of men and women could expect to marry at least once by the age of 50 ○ By 2004, only 46% of women and 44% of men could be expected to marry by age 50 ○ As of 2017, there were 19.9 million people between the ages of 25 and 64 in Canada. Of these: ↳ 56% were married ↳ 15% were in a common law relationship ↳ 13% had never been married or in a common law relationship ↳ 6% were separated or divorced from a marriage ↳ 8% were separated from a common law relationship ↳ 1% were widowed ● Increase in the number of common law unions (According to 2016 Census) ○ 21.3% of all couples in Canada were in a common law relationship ↳ In 1981, only 6.3% of all couples in Canada were common law ● Increase in Rate of Divorce ○ Statistics Canada stopped tracking divorce rates in 2008 ○ However, in 2008, 43.1% of marriages entered into were expected to end in divorce prior to the 50th year of of marriage ○ Again, the impact of Covid-19 on this rate remains to be seen VIDEO 2: MARRIAGE AND DIVORCE ● Differences and similarities between rights and obligations of common law and married couples ● Examples of differences and similarities: ○ Part III of Ontario’s Family Law Act same support obligations if common law couple lives together for three years continuously or has a child together ○ Part I of Family Law Act does not apply to common law couples (family property) ● Formal Requirements for Marriage in Ontario ○ Marriage Act, R.S.O. 1990, c. M.3. ○ Marriage license or have a “publication of banns” during religious worship services ○ Who can perform marriage ○ Must be two witnesses ○ Parties must be present ○ Must be over 18 (or over 16, with parental consent) ○ Some procedural defects can be ”cured” by s. 31 of the Marriage Act ○ Valid consent ● Same-sex marriage in Ontario ○ Ontario Court of Appeal case of Halpern v Canada (Attorney General) 2003 CanLII 26403 (ON CA) ○ Traditional definition of marriage discriminated on the basis of sexual orientation, and therefore violated section 15(1) of the Canadian Charter of Rights and Freedoms ↳ Declared the common law definition of marriage should be as follows: - ↳ “the voluntary union for life of two persons to the exclusion of all others” This new definition was confirmed in the Civil Marriage Act, SC 2005 ● Prohibited Degrees of Consanguinity and Affinity ○ “Consanguinity” (relationship by blood) ○ Affinity – Family Ties ○ Set out in the Marriage (Prohibited Degrees) Act, SC 1990 ↳ Included adopted siblings ● No prior existing marriage ○ Criminal Code (R.S.C., 1985, c. C-46), section 293 includes polygamy as a criminal offence ● Divorce ● Two grounds set out in federal Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)): ○ 1. lived “separate and apart for at least one year” ○ 2. since the celebration of the marriage, the person against whom the divorce proceeding has been brought: ↳ Committed adultery, or ↳ “Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.” VIDEO 3: FAMILY PROPERTY ● Two sets of rules: ○ Law Governing Unmarried Couples ○ Law Governing Married Couples ↳ Law Governing Married Couples ↳ Family Law Act, Part I ↳ Section 5(1): - When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them ↳ Section 5(7) - The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). ● Key to determining entitlement under s. 5(1) is the calculation of each spouse’s net family property so that one-half of the difference can be calculated. ○ S. 4(1): ↳ “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting, - (a) the spouse’s debts and other liabilities, and - (b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage. ● Certain property is excluded from this calculation, as set out in subsection 4(2) ● Includes the following: ○ Gift or inheritance from third-person after the date of marriage ○ Damages or right to damages for personal injury ○ Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property ● 6-part analysis of net family property: ● Step 1: Determine Valuation Date ● Earliest of the following: ○ Separation date (with no reasonable prospects for reconciliation) ○ Date divorce granted ○ Date marriage declared a nullity ○ Date of one spouses commences an application for “improvident depletion” that is subsequently granted ○ Date before the the date on which one of the spouses dies, leaving the other one surviving ● Step 2: List the property interests owned by the spouse on valuation date and determine value at that time. ● Step 3: Determine if any property interests excluded by s.4(2) and, if so, deduct the value of such property interests from total in Step 2. ● Step 4: Calculate debts and liabilities on valuation date and deduct these from total in Step 2. ● Step 5: Determine the marital property deduction by calculating all property interests, other than matrimonial home, and subtract that from total in Step 2. ● Step 6: If the result is negative, then deemed to be zero by subsection 4(5). ● Once net family property is determined, deduct the smaller from the larger number and divide by two. This is the entitlement of the spouse with the lesser amount. ● Some examples in the textbook which may assist in understanding this calculation ● Special rules governing matrimonial homes ○ Set out in Ontario’s Family Law Act, Part II ↳ Definition – “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.” (subsection 18(1)) ↳ Both spouses have equal right to possession of matrimonial home (subsection 19(1)) ↳ When only one of spouses has an interest in a matrimonial home, the other spouse’s right of possession - Is personal as against the first spouse, and - Ends when they cease to be spouses, unless a separation agreement or court order provides otherwise ● Issues that arise with a matrimonial home ○ Alienation of matrimonial home ↳ Number of rules regarding disposing or encumbering an interest in the matrimonial home - Essentially, requires agreement or court order ○ Order for possession of the matrimonial home ↳ Number of rules relating to the possession of the matrimonial home - Court can grant an order for possession of a matrimonial home, for a variety of reasons ● Law governing unmarried couples ○ Increased rights and obligation of common-law partners ○ Federal legislation treats unmarried partners who have lived together for at least a year in the same way as they treat married partners ○ Because of Constitution Act, 1867, it is provincial legislation that determines the rights and obligations that one has towards a common-law partner in Ontario, as well as any rules relating to their property ○ The materials include an interesting discussion about the the Supreme Court of Canada case, Quebec (Attorney General) v. A, 2013, SCC 5 VIDEO 4: SPOUSAL SUPPORT ● Spousal Support Guidelines ○ Guidelines for determining quantum and duration of spousal support ↳ Intended to provide structure to law in this area, but not legally binding ● Please note that the Guidelines do not deal with entitlement, just amount and duration once entitlement determined ● Two basic formulas: ○ Without child support formula ↳ Without Child Support Formula ↳ “Merger over time” - ↳ ↳ ↳ ↳ Longer marriage lasts, the greater level of economic and non-economic integration, and greater justification for more support over a longer period of time Two variables: - Gross incomes - Length of marriage Basic range: - 1.5 - 2% of gross income difference for each year of cohabitation, up to a maximum of 50% - Range fixed for marriages 25 years or longer at 37.5 to 50% of gross income difference Length of support - Guidelines suggest 0.5 to 1 year of support for each year of marriage - Suggests indefinite support for marriages 20 years or longer, or if 5 years or longer and the years of the marriage and age of support recipient added together total 65 or more With child support formula - With Child Support Formula - Rationale for support – presence of child or children - - - Different considerations, as priority must be given to child support, because: - Usually a reduced ability to pay, and - tax implications and state benefits must be taken into account Calculation - - Still in “parental partnership” – ongoing child care responsibilities are shared (not only compensation for ”merger over time”) more complicated – should normally leave the lower income spouse with between 40 and 46% of spouses’ combined net disposable incomes Duration - Should continue until later of: - One year of support for each year of marriage, or - The time that the youngest child finishes secondary school ● Also includes list of exceptions ● Even though these are just ”guidelines” and not legally binding, significantly influenced negotiation and adjudication of spousal support ● The use of the Guidelines was endorsed in the case of Fisher v. Fisher (2008), 88 O.R. (3d)241 (C.A.) ○ Summary of this decision is included in text ↳ 94 … “The objective of the Guidelines is to bring certainty and predictability to spousal support awards under the Divorce Act. … ↳ 97 [Nevertheless], the Guidelines cannot be used as a software tool or a formula that calculates a specific amount of support for a set period of time. They must be considered in context and applied in their entirety, including the specified considerations of any applicable variables and, where necessary, restructuring. … VIDEO 5: CHILDREN ● This section deals with two issues: ○ Custody and Access ↳ Custody and Access ↳ “A person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child.” (Children’s Law Reform Act, subsection 20(2)) ↳ If cohabiting, both entitled to custody (Children’s Law Reform Act, subsection 20(1)) - Assumes that parents will act with the necessary cooperation and trust ↳ If dispute about custody or access, can apply for a court order under Children’s Law Reform Act, section 21 ↳ Part III of the Children’s Law Reform Act governs custody and access applications in Ontario - One of purposes of Part III is, “to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children” - ”Best interests” test has legal meaning - Specifically takes into consideration a number of factors, as set out in section 24(2) of the Children’s Law Reform Act ↳ However, some commentators in the material refer to the fact that in practice the best interests test can become an exercise in discretion ↳ The court can make custody and access orders: - Under the Divorce Act in divorce proceedings, or ↳ In corollary relief proceedings after the divorce. Traditional custody and access order - One parent has sole custody after separation, while the other has access - The access parent has less of a voice in the upbringing of the child - With some exceptions, as set out in the text - ↳ Also cases in which parents awarded “joint custody” - ↳ Both parents active and meaningfully involved in the upbringing of the child or children Changes to the Divorce Act - Traditional language of ”custody” and “access” suggests a winner and loser - ↳ E.g. Chauvin v Chauvin As a result, courts moving away from this Upcoming changes to Divorce Act - “Parenting time” replaces ”custody order” - “Contact order” used for order that sets out time with people not in a parenting role (e.g. grandparents) - “Parenting”, “parenting time” and “contact” replace the word ”access” - Concept of “decision-making authority” introduced (again as alternative to language of custody and access - NOTE: These changes are anticipated to come into effect on March 1, 2021 ↳ Bill 207 – Moving Ontario Family Law Forward Act, 2020 ↳ This Provincial Bill also aims to change the language in Ontario’s principal statutes as well ↳ ↳ For example, proposed changes to the Children’s Law Reform Act include: - “Custody” will become “decision-making responsibility” - “Access” by parent will become “parenting time” - “Access” by non-parenting will become “contact” with respect to a child Received Royal Assent on November 20, 2020 ○ Child Support ↳ ↳ ↳ ↳ Child Support Under Family Law Act, parents have obligation to support their children - Determined by mandatory Child Support Guidelines - Generally determined strictly by income of the payor spouse Also covered under Divorce Act - If launch divorce application, then the Divorce Act applies - Federal Child Support Guidelines are identical to Ontario’s NOTE: Guidelines are a starting point or “Ballpark” figure VIDEO 6: DOMESTIC CONTRACTS ● A couple may choose to govern their relationship through a domestic contract ● Three main kinds: ○ Cohabitation Agreements (for common law couples) ○ Marriage Contracts (for married couples) ○ Separation Agreements (for separated couples, whether married or not) ● Couples can contract, through marriage contract, that in the event of separation, neither will seek spousal support or equalization of net family properties under Part I of the Family Law Act. ● Section 52(2) of the Family Law Act stipulates that couples cannot agree to a term in a marriage contract limiting a spouse’s rights under Part II (matrimonial home) ● Pursuant to section 56(4) of the Family Law Act, a court can set aside a domestic contract under certain circumstances: ○ Failure to disclose significant assets, debts or other liabilities when the domestic contract was made ○ A party did not understand the nature or consequences of the domestic contract ○ Otherwise in accordance with contract law (e.g. if there were reasons why the contract would not be valid) MODULE 14: CONTRACT LAW VIDEO 1: OFFER ● Corbin on Contracts ● “An offer is an expression by one party of his assent to certain definitive terms, provided that the other party involved in the bargaining transaction will likewise express his/her assent to the identically same terms.” ● “An offer looks forward to an agreement – to mutual expression of assent.” ● In order for an expression to constitute an offer; it must have ○ Inclusive Terms ○ Outward Directed Expression ○ Objective a. By what the offeror says not intends to say ● Pharmaceuticals Society of Great Britain v. Boots Cash Chemists (1953 CA) ● Facts ○ S. 18 of the Pharmacy and Poisons Act makes it an offense to sell certain drugs without supervision of a pharmacist. ○ The Society alleged that Boots was breaching the Act since they allowed people to help themselves to drugs which they then took to the cashier. ○ Boots argued that the display with priced goods was an invitation which turned into offer and acceptance at the cashier’s area which was under the supervision of the pharmacist. Therefore, the cashier could refuse to sell (not accept the offer) if there was a problem. ○ The Society argued that sale took place when the customer put the item in the basket since the item with a price tag was an offer that the customer accepted. Therefore, the cashier could not refuse since the sale had already occurred. ○ Held ↳ The display of goods is an invitation which turns into offer and acceptance at the cashier’s area. ↳ Any other interpretation would mean that the customer could not change their mind (and return the item to the shelf) once it had been placed in the basket. ● Relying on the subjective of the parties never solves a problem ● Storer v. Manchester (1975 CA) ● Facts ○ A city council adopted a policy of selling its community housing and offered the houses to the tenants who were living in the buildings. They devised a simple plan to accomplish this. ○ The city council had written to S informing him that it might be willing to sell. ○ S filled in an application form to buy. ○ There was further correspondence whereby the council sent a letter with the terms and S signed the form and returned it. ○ Before the official contracts could be sent out, there was a change of local government and the new City council decided to undo the policy of selling council homes and ceased making offers to sell the houses. ○ They decided to go ahead with any legally binding contracts and revoke any outstanding offers. ○ The council law clerk decided that since the contracts had not been exchanged, there was no legally binding contract, and the council was not obligated to conclude the deal with S. ○ Issue ↳ Did S have a contract with the council. Has there been an offer and acceptance? ○ Held ↳ Yes, since there was a contract written up in existence and it was signed, the councils defense to say that “they didn't intend to contract” does not matter ○ Lord Denning: ↳ “In contracts you do not look into the actual intent in a man’s mind. You look at what he said and did. A contract is formed when there is, to all outward appearances, a contract. A man cannot get out of a contract by saying; ‘I did not intend to contract,’ if by his words he has done so.” ● OFFER AND UNILATERAL CONTRACTS ● Two Types of Contracts: ○ 1)Bilateral Contract ↳ Mutual promises made in exchange for each other by each of the two contracting parties. ↳ Both parties are promisors and promisees. ↳ The contract creates mutual rights and duties. ↳ A contract can exist prior to performance by either party. ↳ Offer: I promise to sell you my horse tomorrow for $1,000. ↳ Acceptance: I promise to buy your horse tomorrow for $1,000. ○ 2)Unilateral Contract ↳ Promise or group of promises made by only one of the contracting parties (i.e. the promisor/offeror). ↳ The promisor/offeror is the only party under an enforceable legal duty. ↳ The other party (i.e. the promisee/offeree) is the only party who has an enforceable legal right. ↳ It is an agreement to pay in exchange for performance, if the promisee/offeree chooses to act. ↳ It is not an outstanding offer, which is not a contract. ↳ Offer: I will pay you $100 if you mow my lawn before noon on Friday. ↳ Acceptance: You mow the lawn before noon on Friday. ↳ Gives certain issues about offer and acceptance - An example is the case below ● Carlill v. Carbolic Smoke Ball Co., (1893 C.A.) ○ Facts ↳ CSB manufactured smoke balls, which was a preventative treatment for the flu. ↳ CSB issued an advertisement offering a £100 reward to anyone who used the product according to the directions and still managed to catch the flu. ↳ Mrs. Carlill used the ball according to its instructions but still caught the flu. ↳ She sued for the £100 reward. ↳ Was Mrs. Carlill entitled to the reward? ↳ Was there a contract? ○ Can an Advertisement Constitute an Offer? ↳ Too vague. ↳ You cannot make an offer to the world. ▪ Mrs. Carlill never accepted the offer ↳ A unilateral contract (promise for act) is just as enforceable as a traditional contract (promise for promise). ↳ It is legally permissible to make an offer to the world. ↳ Where the offer indicates, performance of the requested act can constitute acceptance of the offer (use of the smoke ball is the acceptance of the offer) ● Held ○ Mrs. Carlill was entitled to the reward. VIDEO 2: ACCEPTANCE ● Acceptance ○ An offer creates a power of acceptance in the offeree. ○ Once accepted the contract is clinched ● Requirements of an Acceptance ○ Clear and unconditional ○ Made in response to offer (i.e., not a “cross-offer” or “counter-offer”) ○ Communicated to offeror in compliance with terms stated in offer ○ Made with knowledge of offer (motive is irrelevant ● What is necessary to communicate acceptance? Stated in case below ● Larkin v. Gardiner (1895 Div Ct) ● Facts ○ L retained a real estate agent to sell her Property. ○ The agent was approached by G with an offer of $1900. ○ The agent took the offer to L and she signed the agreement. ○ The agent took no steps to communicate L’s acceptance of the offer to G. ○ A few hours later, G gave notice to the agent that he withdrew his offer. ● Issue: ○ Was there acceptance prior to withdrawal? ● Held ○ No, not valid ○ Contracts are not formed on the basis of subjective mutual consent, but rather upon the objective interpretation of externally manifested action. ○ A contract will not be formed until the acceptance of the offer has been communicated to the offeror. ○ The offeror may revoke the offer prior to acceptance. ● What about the placement of the acceptance? ● Eliason v. Henshaw (U.S.S.C. 1819) ● Facts ○ E offered to purchase flour from H. ○ In the offer E stipulated that the acceptance had to be made by return wagon which was headed to Harper’s Ferry (which is where E would be at the time). ○ H purported to accept the offer by sending an acceptance to E at Georgetown. ○ E denied that a contract had been made on the basis that their term as to acceptance had not been complied with. ● Issue ○ Was there acceptance of the offer? ● Held ○ No. ○ The offeror is the master of the offer and may insist on acceptance in any way (including acceptance at a particular place) ● Manchester Diocesan Council for Education v. Commercial & General Investments Ltd. [ChD 1969] ○ Notification may come through any means ↳ What is important is that the offeree makes his or her intention to accept known to the offeror ○ Even if the offer provides for a specific means of acceptance, the courts will generally find that any means of acceptance that is no less advantageous to the offeror will conclude the contract. ○ If the offer makes it abundantly clear that only one means of acceptance is permitted (e.g. “by post and by no other means”) then acceptance will be limited to such means. ● What is the effect of a counter offer? ● Livingstone v. Evans, (1925 Alta SC) ● Facts ○ E offered to sell his land to L for $1,800. ○ L responded by telegram, saying, “Send lowest cash price. Will give $1600 cash." ○ E answered by telegram, "Cannot reduce price“. ○ L wrote accepting the original offer. ○ E refused to sell. ● Issue ○ Was there acceptance of E’s offer? ● E argued there was no contract for the following three reasons: ○ The statement by L (to pay $1600) was not on the same terms as the offer and therefore could not be an acceptance. ○ Instead, it was a counter-offer. It is a general rule that a counter-offer kills the original offer (to sell for $1800). ○ Therefore, there was no longer an offer for L to accept. ○ The counter offer was $1600, however, when E said “cannot reduce the price” that was a reply to the counter offer (declining it) and bringing back the original offer. Therefore, L’s acceptance of the original offer is valid ● Held ○ L had accepted E’s offer and a contract was formed. ○ Although the original counter-offer by L had terminated E’s offer, E’s subsequent communication “Cannot reduce price“, revived the original offer. ● Does silence constitute acceptance? ● Felthouse v. Bindley (1862 Ex Ch) ● Facts ○ F thought he had reached an agreement to purchase a horse from his nephew for ₤30, but the nephew informed F that the agreed price was 30 guineas (the equivalent of ₤30 and 30 shillings). ○ F appreciated that there had been some confusion as to price and made a new offer of ₤30 15 shillings (i.e. he split the difference) saying “If I hear no more about him, I consider the horse mine at ₤30 15 shillings”. ○ Subsequently, the nephew’s farming stock was sold at auction. ○ The nephew had informed the auctioneer that the horse should not be included, but the auctioneer still sold the horse at the auction. ○ After the horse had been sold, F received a letter from the nephew acknowledging his acceptance. ○ F brought action against B (the auctioneer). ○ In order to be successful in the action it was necessary to establish that F had a right to the horse at the time it was sold. ● Issue ○ At what point in time was there a valid contract between F and his nephew? ● Held: ○ At best, the contract was formed when F received the letter from the nephew (i.e. after B had sold the horse at auction). ● A condition in an offer that the offeree’s inaction/silence will constitute acceptance is generally not valid ● Consumer Protection Act, 2002 (Ontario) ○ 13. (1) Except as provided in this section, a recipient of unsolicited goods or services has no legal obligation in respect of their use or disposal. ○ (2) No supplier shall demand payment or make any representation that suggests that a consumer is required to make payment in respect of any unsolicited goods or services despite their use, receipt, misuse, loss, damage or theft. ● Acceptance and certainty ○ If the terms of an agreement are not sufficiently certain and definitive, there will be no contract. ○ However, courts will strive to give force to agreements through reasonable and just interpretation. ○ The courts will try, wherever possible, to give the proper legal effect to any clause that the parties reasonably understood and intended was to have legal effect. ● Scammell (G.) and Nephew Limited v. Ouston (1941 H.L.) ● Facts ○ O agreed to purchase a van from S for ₤268. ○ S agreed to take O’s 1935 Bedford van in trade with the remaining purchase price to be paid by a hire-purchase agreement (rent-to-own). ○ S notified O that the van would be ready for pick-up in a few days, “subject to mutual acceptance of the hire-purchase agreement. ○ Before the hire-purchase agreement was entered into S refused to proceed with the sale. ● Issue ○ Is there a contract? ● Held ○ No. ○ The language used in the agreement was obscure and incapable of any precise meaning. ○ In order to be binding an agreement must be sufficiently definite to enable the court to give it a practical meaning (i.e. to attribute to the parties a particular contractual intention). ○ A court may import terms on the proof of custom or by implication, but it cannot make an entire contract for the parties. ○ The parties had not reached agreement on the terms of the hire-purchase agreement. ○ A hire-purchase agreement is a complex arrangement. The law has not defined (nor can it define) what are the normal and reasonable terms of a hire-purchase agreement. ○ An agreement to agree is not a contract. ● When is an offer terminated? ○ Where a time limit is stipulated for acceptance, at that time (and that time has passed) ○ Where no time limit is stipulated, after a reasonable time ○ Upon the revocation by the offeror ● Dickinson v. Dodds (1876 C.A.) ● Facts ○ Dodds offered to sell land to Dickinson. ○ The offer was open until 9 am on Friday. ○ Dickinson decided to buy the house but believing that he had until Friday to accept did not immediately make this known to Dodds. ○ Before Friday Dickinson heard that Dodds has sold the house to a third party (Allan). ○ Before the deadline for acceptance, Dickinson found Dodds at the train station and attempted to hand Dodds acceptance of the offer. ○ Dodds stated that he could not accept as he had sold the house to Allan. ● Issue ○ Is the acceptance valid? ● Held ○ No. ○ An offer is a mere nudum pactum (naked promise), which can be revoked at any time prior to acceptance. ○ Knowledge which is sufficient to indicate revocation to the reasonable person (even if indirect) invalidates the power of acceptance. ○ A promise to hold an offer open for a certain time is unenforceable unless there is consideration for the promise and dickinson had not provided any consideration for the promise VIDEO 3: CONSIDERATION ● What is consideration? ● “If there’s no consideration, there’s no contract?” - Fridman ● Currie v. Misa (1875) ○ “A valuable consideration, in the sense of the law, may consist either in some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other.” ● Westlake v. Adams (1858) ○ “It is an elementary principle, that the law will not enter into an enquiry as to the adequacy of the consideration.” ● Allegheny College v. National Chautauqua County Bank Of Jamestown (1927) ○ The detriment and promise must be mutually related, i.e. the detriment suffered must be requested by the other side. ○ They must be motive for one another. ● Hamer v Sidway (1891) ○ An uncle promised to pay his nephew $5,000 if the nephew did not drink, smoke, swear or gamble until age 21. ○ The nephew did not do any of these things and asked for the $5,000. ○ The uncle told his nephew that he would give the nephew the $5,000 but died before he paid it. ○ The Executor refused to pay on the basis that there was no consideration for the uncle’s promise. ● The Defendant’s Argument ○ There was no consideration ○ The uncle did not receive any material benefit and the nephew did not suffer any factual detriment ↳ (i.e. he was the better for not smoking and drinking). ● Was there consideration for the uncle’s promise? ○ Yes. ○ The nephew gave up his liberty to do these things on the strength of his uncle’s promise (i.e. he suffered a legal detriment). ● Tobias v Dick and T. Eaton Co (1937) ○ T entered into an agreement with D. ○ Under the terms of the agreement T had an exclusive right to sell machines in the Prairie Provinces that were manufactured by D. ○ T was not very successful and D allowed E to sell its machines in the Prairie Provinces. ○ T sued D for breach of contract ○ Was there a contract? ↳ No. T had not promised anything in return. ↳ ▪ “In my opinion, it is not a contract at all. It has no mutuality – it is entirely a one- sided arrangement. By it, Tobias gets the exclusive right “to sell” Dick’s machines within a stated territory for a stated time, but does not promise to sell any of the machines.” ● Wood v Lucy, Lady Duff-Gordon (1917) ○ Lady Duff-Gordon and Wood entered into an Agreement. ○ Under their agreement Wood had the exclusive right to use Lady Duff-Gordon’s name on clothing designs. ○ In return for this right Lady Duff-Gordon was entitled to 50% of Wood’s profits. ○ Lady Duff-Gordon allowed her name to be used by other designers and did not share her profits with Wood. ○ Wood sued for his share of the profits. ○ Lady Duff-Gordon argued that there was no contract, because Wood had not promised to do anything (i.e. he did not have to sell anything by the terms of the agreement). ○ His promise was illusory and therefore there was no consideration. ○ Was there a contract? Was there consideration? ↳ Yes. ↳ On these facts, you can imply a promise that Wood would use reasonable efforts to earn profits from the use of Lady Duff-Gordon’s name. ↳ There is a bilateral contract here because Lady Duff-Gordon promised to let Wood use her name in return for Wood’s promise to use his best efforts to earn profit from it. ↳ If you imply this term the whole contract, then it makes sense. ● What do the Cases Tell Us? ○ Consideration must be mutually related to the promise. It must be requested by the Promisor. It must be the reason for the promise (Allegheny) ○ Consideration must be either a “legal benefit” to the promisor or a legal detriment to the promisee (Currie, Hamer). ○ Consideration must not be illusory. A promise that does not obligate the promisor to actually do anything is not consideration (Tobias, Wood); ○ Consideration can be nominal (Westlake, Thomas). ● Past consideration ● Allegheny College v. National Chautauqua County Bank Of Jamestown (1927) ○ The promise and the consideration must purport to be the motive for each other. ○ It is not enough that the promise induces the detriment or that the detriment induces the promise. ○ If a promise is made: ↳ In return for an act that has already been performed, or ↳ For a benefit that has already been received, ○ The promise is not the motive for the act or benefit (i.e. the consideration). ○ The consideration for the promise is “past” and does not support the promise. ● What if the act is performed, or the benefit given: ○ At the request of the promisor, and ○ In circumstances that suggested payment would be made? ● Then the promise may be enforceable since the consideration may not be in the past. ● Pao On v. Lau Yiu Long [1980] AC 614 (PC) ○ Consideration will not be “past” if: ↳ The act is performed at the promisor’s request; and ↳ The parties understood that the person performing the act would receive a benefit ↳ NOTE: This understanding can be implied based on the facts ● Pre existing Duty ● Gilbert Steel v University Construction (1976) ○ Gilbert Steel entered into a written contract with University Construction for the purchase of steel at a fixed price ○ The market price of steel increased and Gilbert Steel asked University Construction to pay a higher price. ○ UniversityConstructionverballyagreedtothehigherprice. ○ Gilbert Steel continued to deliver steel (which University Construction accepted) and charged University Construction the higher price. ○ UniversityConstructionrefusedtopaythehigherprice. ● Issue: ○ Was the oral promise made by UCL to pay a higher price for steel enforceable? ● Held: ○ No. ○ Gilbert Steel was already obligated to deliver steel at the lower price. Gilbert Steel provided no new consideration for University Construction’s promise to pay a higher price. VIDEO 4: INTENTION TO CREATE LEGAL RELATIONS ● Balfour v Balfour [1919] 2 KB 571 (CA) ○ The wife (Plaintiff) and her husband (defendant) were married in 1900. ○ They spent most of their time from 1900 to 1915 in Ceylon (know as Sri Lanka today) where H had a civil service position. ○ In 1915 they returned to England while H was on leave. ○ W became ill with arthritis and it was decided that she should remain in England to recuperate. ○ H returned to Ceylon once his leave had finished. ○ Before H left he promised to pay W £30 per month for her maintenance until such a time as she was well enough to rejoin him or until he returned to England. ○ Eventually differences arose between them as to their living arrangements and it was decided that they should live apart (i.e. separate). ○ H stopped paying the £30 per month. ○ W obtained an order for alimony and sued H for the money promised from 1916 until 1918 when alimony payments began. ○ At trial, Sargent J found that H had an obligation to support W. ○ Accordingly the consent of W to the agreement for support was consideration. ○ H appealed. Was H’s promise enforceable? ↳ No. ○ Duke LJ – W gave no consideration for the promise. ○ Warrington LJ – W & H did not intend to make a bargain that could be enforced at law. ○ Atkins LJ – There are some situations in our law where, although all the requirements of formation are met, there is no legal contract. ○ Examples include an agreement to take walks together or an offer and acceptance of hospitality. ○ As a general rule, agreements made between husband and wife living in amity, peace, goodwill or harmony are also of this character. ● Why are they not enforceable? ○ The parties did not intend that these arrangements should be sued upon or transfer legal rights. ○ The family is an inner private sphere where the parties decide amongst themselves how to allocate their resources and in which they rely on natural love and affection. ○ This presumption of “no intention” must be overcome by W who must establish that the agreement was to have legal significance. ○ The facts of this case, do not support the interpretation that a legally binding relationship was intended. ○ It would seem odd that an amiable husband would legally bind himself to pay £30 per month under all circumstances ○ It is also unlikely that W, who was in ill health and alone in England, would limit herself to that amount whatever the development of her illness. ○ This leads to the conclusion that neither party contemplated this result and therefore there was no contract which could be sued upon. ● Rose and Frank Company v JR Crompton & Brothers, Limited [1923] 2 KB 261 (Eng CA) ○ RFC, was an American distributor of JRC’s products. They had been in business together since 1905. ○ In 1913 the parties entered into a new agreement. The agreement provided for such matters as the duration of the arrangement, the regions covered, the prices etc. ○ In the body of the document, there was a clause which stated that the agreement was not “formal or legal” and that the parties could not litigate the matter in either English or American courts. ○ After becoming dissatisfied, JRC refused to continue the arrangement and RFC sued. ○ Was the agreement legally enforceable? ↳ No. ○ It is acceptable for parties to come to agreements which do not give rise to legal relations (this is presumed in social or family settings). ○ In commercial arrangements there is a factual presumption that the parties intended to create legal relations. ○ This presumption may be rebutted with compelling evidence (for example stating “this agreement is binding in honor only”). ↳ Jones v Vernon’s Pools,Ltd.[1938]2AllER626(KB)
