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163 Cards in this Set
- Front
- Back
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Business Law |
A set of established rules governing commercial relationships, including the enforcement of rights |
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Law |
A set of rules and principles to guide conduct in society |
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Breach of Contract |
Failure to comply with a contractual promise |
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Contract Law |
Rules that make agreements binding and therefore facilitate planning and enforcement of expectations |
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Litigation |
The process involved when one person sues another |
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The three types of dispute resolution and the main idea of each |
1. Mediation (a process through which the parties to a dispute endeavour to reach a resolution with the assistance of a neutral person) 2. Arbitration (a process through which a neutral party makes a decision that is usually binding that resolves a dispute) 3. Litigation (to prosecute or defend through legal action, ie. a lawsuit) |
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Legal Risk Management Plan |
A comprehensive action plan for dealing with the legal risks involved in operating a business |
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Business Ethics |
Moral principles and values that seek to determine the right and wrong in the business world |
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Statement of Claim |
A document setting out the basis for a legal complaint |
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The Legislative Branch of Government |
Passes laws (statutes) that impact business operations - consists of federal, provincial, and municipal levels of government) |
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The Executive Branch of Government |
Consists of the formal executive (responsible for the ceremonial features of the government) and the political executive (responsible for day-to-day operations such as government policy and the Cabinet) |
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The Judicial Branch of Government |
Refers to judges who establish precedent |
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Constitution Law |
The supreme law of Canada that constraints and controls how government exercise power |
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Liberalism |
Legal philosophy which elevates individual freedom and autonomy |
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Jursidction (and the two types) |
The power a given level of government has to enact laws (Exclusive Jurisdiction - one level of government has on its own and is not shared, Concurrent Jurisdiction - shared between levels of government)
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Doctrine of Paramountcy |
A doctrine that provides that federal laws prevail when there are conflicting or inconsistent federal and provincial laws - federal laws are "supreme" |
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Bylaws |
Municipal legislation |
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Regulation |
Detailed provisions that are passed to provide the detailed provisions of a statute (rules that have the force of law), created by the executive branch of government |
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The Two Types of Trial Courts |
1. Inferior Courts - has limited financial jurisdiction whose judges are appointed by the provincial government (criminal, family, small claims court) 2. Superior Courts - have unlimited financial jurisdiction with appointed federal judges (much serious issues) |
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The Canadian Charter of Rights and Freedoms |
A guarantee of specific rights and freedoms enshrined in the Constitution and enforceable by the judiciary - remember that the rights and freedoms are not absolute |
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The Four Sources of Law |
1. Constitutional Convention (the Canadian Constitution( 2. Royal Prerogative (historical rights and privileges of the Crown) 3. Statute Law (set laws written down by a legislature) 4. Common Law (judge-made law via precedent) |
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Rules of Equity |
Judge application focusing on what would be fair given the specific circumstances of the case as opposed to what the strict rules of common law might dictate (e.g, "clean hands") |
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Domestic Law vs. International Law
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1. Domestic Law - internal law of a given country 2. International Law - between states and other entities |
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Substantive vs. Procedural Law |
1. Substantive Law - defines rights, duties, and liabilities 2. Procedural Law - governs the procedures to enforce those rights, duties, and liabilities |
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Public Law vs. Private Law |
1. Public Law - involves areas of law that regulates the relationship between persons and governments at all levels (criminal, tax, constitutional, administrative law...) 2. Private Law - involves dealings between persons (torts, property, company law...) |
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Civil Law vs. Common Law |
1. Civil Law - legal system where its core principles are codified into a referable system which serves as the primary source of law 2. Common Law - characterized by case law and where the law is developed by judges through precedent |
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Divisions/Classifications of the Law (image) |
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Summary of Constitutional Law |
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Administrative Law |
Rules created and applied by those having government powers - primary legal area dealing with governments and businesses |
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Bill |
Proposed law under consideration by a legislature |
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Natural Justice |
The right to a fight trial and the right to a fair hearing |
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Negotiation |
Process of deliberation and discussion intended to reach a mutually acceptable resolution to a dispute - first step is to investigate the nature and extent of the dispute - remember to define limits of the negotiation - negotiation sealed with a settlement agreement and confidentiality clause |
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Apology Legislation |
An apology made by on behalf of a person in connection with any matter |
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Mediation |
Process done by a mediator who helps parties resolve a dispute - Is less expensive than formal resolution methods - Can be tailored - Helps preserve relationships Mediators is a facilitator who assists in developing options and achieving a solution |
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Arbitration |
Done by an arbitrator (past judge or professional) who listens to the parties in a dispute and makes a ruling that is usually binding (final and enforceable by the courts) |
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Plaintiff |
The party that initiates a lawsuit against another parties |
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Defendant |
The party being sued |
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Limitation Rules |
Specific time periods specified by legislation for commencing legal action
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First Stage of a Lawsuit |
Pleadings - the exchange of formal documents concerning the basis for a lawsuit - Plaintiff prepares document outlining the claim (allegations) - Defendant decides if they have a defence or not, or a counterclaim |
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Second Stage of a Lawsuit |
Discovery - process of disclosing evidence to support claims - Both parties reveal and demonstrate facts |
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Third Stage of a Lawsuit |
Trial - a formal hearing before a judge that results in a binding decision
- Burden of Proof falls on the plaintiff - must prove the case with evidence - Judge makes a decision |
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Fourth Stage of a Lawsuit |
Appeals - arguing to a higher court that the decision made was wrong/executed incorrectly
- Appellant vs. Respondent |
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A Contract and its elements |
An agreement by two parties that is enforceable by a court of law; must have/be: - Agreement - Complete - Deliberate - Voluntary - Between two or more competent persons - Not necessarily in writing (some contracts have to be in writing) |
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Objective Standard Test |
Test based on how a reasonable person would view the matter |
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Equal Bargaining Power |
Courts assume individuals look after themselves and will work to maximize their own self interests - courts are not normally entitled to assess the fairness or reasonableness of contracts |
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Offer |
A promise to perform specified acts on certain terms |
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Invitation to Treat |
An expression of willingness to do business |
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Standard Form Contracts |
"Take it or leave it contract" where customers agree to a standard set of forms that favour the other side (e.g, renting a car) |
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Offeror vs. Offeree |
1. Offeror - a person making an offer 2. Offeree - a person whom an offer is being made too |
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Events allowing Offer Termination |
1. Revocation (withdrawal of an offer) - Option Agreement - in exchange for payment, an offeror keeps an offer open for a specified period of time 2. Lapse (expiration of an error after a time period) 3. Rejection (refusal to accept) 4. Counteroffer (rejection of one offer and proposal of a new one) 5. Death or Insanity (offer instantly withdrawn) |
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Acceptance |
Unqualified willingness to enter into a contract on the terms in the offer - Only occurs when the receiving party is informed of the intended acceptance |
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Postbox Rule |
Acceptance is effective at the time of mailing of acceptance |
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Consideration |
The price paid for a promise |
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Gratuitous Promise |
A promise for which no consideration is given - Offering something at no charge and later changing your mind is not a contractual breach |
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Pre-Existing Legal Duty |
A legal obligation that a person already owes |
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Promissory Estoppel |
Doctrine whereby someone who relies on a gratuitous promise may not be able to enforce it (used as a defence where an innocent party changed his/her position because of a promise made by the other party - if it materially affects you, the courts may be able to enforce it) |
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Rebuttable Presumption |
A legal presumption in favour of one party that the other side can seek to rebut or dislodge by leading evidence to the contrary - "Innocent until proven guilty" is an example |
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Family Agreements |
Courts see them as non-contractual unless demonstrated as otherwise |
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The Uniform Electronic Commerce Act (UECA) |
1. Sets out basic functionally equivalency rules 2. Provides special rules for the formation and operations of contracts 3. Sets provision for the carriage of goods |
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Express Term |
A provision of a contract that states a promise explicitly such as price and quantity - Drafter of the contract bears the risk of unclear language |
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Rules of Construction |
Guiding principles for interpreting or "constructing" the terms of a contract |
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Implied Term |
A provision not expressly included in a contract but that is necessary to give effect to the partie's intention - courts apply terms based on grounds of: - Business Efficacy - Customs in the Trade of the Transaction - Previous Dealings between the Parties - Statutory Requirements - Contractual quantum meruit (as much as merited or deserved) |
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Entire Contract Clause |
A term in a contract in which parties agree that their contract is complete as written (all obligations are outlined) |
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Parol Evidence Rule |
Limits the evidence a party can introduce concerning the contents of the contract |
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Conditional Subsequence |
A condition that, when it occurs, brings an existing contract to an end |
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Conditional Precedent |
A condition that, when it occurs, suspends the parties' obligations to perform their contractual obligations |
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Limitation of Liability Clause |
A term of a contract that limits liability or breach to something less than would be otherwise recoverable |
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Exemption or Exclusion Clause |
A term of a contract that identifies events causing loss for which there is no liabilitiy |
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Liquidated Damages Clause |
A term of a contract that specifies how much one party must pay to the other in the event of breach |
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Shrink-Wrap, Click-Wrap, and Browse-Wrap Agreements |
1. Shrink-Wrap Agreement - terms are enclosed with a product such as prepackaged software 2. Click-Wrap Agreement - terms appears on computer screen when a user attempts to download software or purchase goods (license) 3. Browse-Wrap Agreement - user agrees that-by virtue of accessing a website that he/she is bound by the terms associated with the website |
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Voidable Contract |
A contract that, in certain circumstances, an aggrieved party can keep in force or bring to an end |
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Void Contract |
A contract with a defect so substantial that it is of no force or effect |
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Legal Capacity |
The ability to make binding contracts (age of majority, mental capacity etc.) |
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Age of Majority |
The age at which a person becomes an adult |
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Duress |
The threat of harm that coerces the will of the other party and results in a contract |
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Undue Influence |
Unfair manipulation that compromises someone's free will (actual pressure, presumed pressure) |
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Actual Pressure |
A transaction that arises because one party has exerted influence on the other |
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Presumed Pressure |
A relationship that already exists between parties that gives rise to a presumption that the ensuing agreement was brought about by one party's unfair manipulation of the other |
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Unconscionability |
An unfair contract where one party takes advantage of the weakness of the other |
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Misrepresentation |
A false statement of fact that causes someone to enter a contract (fraudulent, negligent, innocent) |
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Rescission |
The remedy that results in the parties being returned to their pre-contractual positions |
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Fraudulent Misrepresentation |
The speaker has a deliberate intent to mislead or makes the statement recklessly without knowing or believing that it is true |
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Negligent Misrepresentation |
The speaker makes the statement carelessly or negligently |
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Innocent Misrepresentation |
The speaker has been misrepresented a fact innocently |
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Mistake |
An error made by one or both parties that serious undermines a contract and is rarely proven |
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Common Mistake |
When both parties share the same fundamental mistake |
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Illegal Contract |
Contracts that cannot be enforced due to contrast with legislation or public policy |
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Public Policy |
The community's common sense and common conscience |
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Non-Solicitation Clause |
A clause forbidding contact with the business's customers |
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Non-Competition Clause |
A clause forbidding competition for a certain period of time |
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Contracts of Guarantee |
A promise to pay the debt of someone else, should that person default on the obligation |
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Termination of a Contract |
When a contract is brought to an end through: - Performance - Agreement - Frustration - Breach |
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Vicarious Performance |
To perform a contractual obligation through others |
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Types of Termination Through Agreement between Parties |
- By entering into a whole new contract (novation) - By varying certain terms of the contract - By ending the contract - By substituting a party |
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Assignment |
A transfer of contractual rights |
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Frustration |
The termination of a contract by an unexpected event or change that makes performance functionally impossible or illegal |
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Force Majeuere |
Clauses defining what events frustrate the contract |
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Balance of Probabilities |
The plaintiff must prove that there is a better than 50% chance that the circumstances of a contract are as the plaintiff contends |
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Privity of Contract |
Plaintiff says there is a contract between the two parties - parties in the contract are the only ones who can enforce the rights and obligations it contains |
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Condition |
An important term involving the breach of a contract that, if breached, gives the innocent party the right to terminate the contract and claim damages |
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Warranty |
A minor term involving breach of a contract that, if breached, gives the innocent party the rights to claim damages only |
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Innominate Terms |
Terms that cannot be easily classified as conditions or warranties |
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Fundamental Breach |
A breach of contract that affects the foundation of the contract |
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Anticipatory Breach |
A breach of contract that occurs before the date for performance |
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Damages |
Monitory compensation or contractual breach (expectation damages, punitive damages) |
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Expectation damages |
Damages which provide monetary equivalent of contractual performance |
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Punitive Damages |
Damages which punish the defendant |
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Duty to Mitigate |
The obligation to take reasonable steps to minimize the losses resulting from the breach of contract or other wrong |
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Equitable Remedies |
Where damages are an inadequate remedy for breach of contract - the defence must undertake specific performance (injunction, interlocutory injunction, recission) |
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Injunction |
Promise not to engage in specified activities |
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Interlocutory Injunction |
Order to refrain from doing something for a limited period of time |
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Tort |
A harm caused by one person to another, other than through breach of contract, for which the law provides a remedy - imposes liability based on fault |
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Tort-Feasor |
A person who commits to tort |
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Vicarious Liability |
Liability an employer has for the tortious acts of an employee committed in the ordinary court or scope of employment
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Joint Tort-Feasors |
Involves two or more persons whom a court has held to be jointly responsible for the plaintiff's loss or injuries |
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Contributory Negligence |
Defence claiming that the plaintiff is at least partially responsible for the harm that has occured |
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Worker's Compensation Legislation |
Provides no-fault compensation for injured employees in lieu of their right to sue in tort |
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Non-Pecuniary Damages |
Compensation for pain and suffering, loss of enjoyment of life, loss of life expectancy |
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Pecuniary Damages |
Compensation for out-of-pocket expenses, loss of future income, cost of future car |
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Punitive Damages |
Awarded to the plaintiff to punish the defendant |
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Aggravated Damages |
Compensation for intangible injuries such as distress and humiliation caused by the defendant's conduct |
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Negligence |
Failure to take proper care in doing something |
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Reasonable Care |
The care a reasonable person would exhibit in a similar situation |
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Steps to a Negligence Action |
1. Does the defendant owe the plantiff a duty of care? 2. Did the defendant breach the standard of care? 3. Did the defendant's careless act cause the plaintiff's injury? 4. Was the injury suffered by the plaintiff too remote? |
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Duty of Care |
The responsibility owed to avoid carelessness that causes harm to others |
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Neighbour Principle |
Anyone who might be reasonably affected by the defendant's conduct |
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Standard of Care |
The watchfulness, attention, caution, and prudence that a reasonable person in the circumstances would exercise |
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Reasonable Person |
The standard used to judge whether a person's conduct in a particular situation is negligent |
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Causation |
The relationship that exists between the defendant's conduct and the plaintiff's loss or injury |
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Remoteness of Damage
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The absence of a sufficiently close relationship between the defendants action and the plaintiff's injury |
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Thin Skull Rule |
The principle that a defendant is liable for the full extent of a plaintiff's injury even where a prior vulnerability makes the harm more serious than it might be |
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Pure Economic Loss |
The financial loss that results from a negligent act where there has been no accompanying property or personal injury damage to the person claiming the loss |
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Contributory Negligence |
The defence that the plaintiff contributed, or partially caused, the injuries that were suffered |
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Voluntary Assumption of Risk |
The defence that no liability exists as the plaintiff agreed to accept the risk inherent in the activity |
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Negligent Misstatement |
Incorrect statement made carelessly |
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Product Liability |
Liability relating to the design, manufacture, or sale of a product |
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Strict Liability |
Principle that liability will be imposed irrespective of proof of negligence (for fires, for dangerous animals, for escape of dangerous substances etc.) |
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Occupier |
Someone who has some degree of control over land or buildings on that land |
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Contractual Entrant |
Any person who has paid (contracted) for the right to enter the premises |
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Invitee |
Any person who comes onto the property to provide the occupier with a benefit |
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Licensee |
Any person whose presence is not a benefit to the occupier but to which the occupier has no objection |
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Trespasser |
Any person who is not invited on to the property and who presence is unknown to the occupier or is objected by |
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Defences to actions based on occupier's liability |
- Duty to take reasonable care does not apply to risks voluntarily assumed but the defendant must show that the plaintiff assumed both the physical and legal risks involved - Exclusion of liability clauses - Contributory negligence |
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Nuisance |
Any activity on an occupier's property that unreasonably and substantially interferes with the neighbour's right to enjoyment on the neighbour's own property (must be significant and reasonable, be on nuisance grounds, and courts will consider trade-offs of interest) |
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Trespass to Land |
Wrongful interference with someone's possession of land (someone who comes into land without express or implied permission, is not leaving after asked, a person who leaves an object on land) |
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False Imprisonment |
Unlawful detention or physical restraint or coercion by psychological means |
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Assault |
Threat of imminent harm by disturbing someone's sense of security |
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Battery |
Actual physical contact or violation of that bodily security |
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Deceit |
A false representation intentionally or recklessly made by one person to another that causes damage |
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Passing Off |
Presenting another's goods or services as one's own |
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Interference with Contractual Relations |
Incitement to break the contractual obligations of another |
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Defamation |
Public utterance of false statement or fact of opinion that harms another's reputation (slander for oral form, libel for print form) |
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Justification |
Type of defamation defence; based on the defamatory statement being true |
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Qualified Privelage |
Type of defamation defence; based on the defamatory statement being relevant, without malice, and communicated only to a party who has legitimate interest in receiving it |
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Fair Comment |
Type of defamation defence; the plaintiff cannot show malice and the defendant can show that the comment concerned a matter of public interest was factually based, and expressed a view that could honestly be held by another |
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Responsible Communication on Matters of Public Interest |
Type of defamation defence; where some facts are incorrectly reported but the publication is on the matter of 'public interest', and the publisher was diligent in trying to verify the allegation |
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Legal Risk |
Business risk with legal implications |
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Approaches to a Legal Risk Management Plan |
1. Preventative Approach - requires a thorough evaluation of the risks associated with the business's activities in order to minimize impact 2. Reactive Approach - strategy to deal with legal problems that may materialize |
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Four Steps of a Legal Risk Management Plan |
1. Identifying Legal Risks 2. Evaluating the Risks 3. Devising a Risk Management Plan 4. Implementing the Plan |
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Risk Avoidance |
Involves ceasing a business activity because the legal risk is too great |
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Risk Reduction |
Implementing practices in a business to lower the probability of loss and its severity |
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Risk Transference |
Involves shifting the risk to someone else through a contract
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Risk Retention |
Involves absorbing the loss if legal risk materializes |
