-
What is capacity?
Legal power to give consent.
-
What are 7 groups of persons who have no capacity or limited capacity to create a contract?
Minors
Mentally disabled persons
Intoxicated persons
Corportions
Associations
Indian bands and Aboriginal persons
Public authorities
-
What is the age of majority?
The age at which a person is held fully accountable in law. (Different ages in different provinces)
-
Who are minors?
People who have not reached the age of majority.
-
What happens if a minor is entitled to avoid the legal obligations hat it created?
The contract is voidable.
-
A 15 year old boy enters a cell phone contract for 1 year. After 2 months he elects to avoid it. Does he have to pay for those 2 months? Does he have to pay for those 10 months?
Yes to the 2 months. No to the 10 months.
-
If minors elect to avoid contracts do they have to give back their benefits?
Of course.
-
What are some contracts that minors can not avoid?
Food, clothing, education, medical treatment and legal advice.
-
If a court has declared a person to lack mental capacity what happens?
Contract is void and cannot be enforced at all.
-
If there is no court declaration can a person still be considered to be mentally incompetent?
Yes, if he/she lacks mental capacity to contract at the time the contract is formed.
-
Is a minor's contract voidable if the other party didn't know that they were a minor?
Yes.
-
Is a mental person(Jess...) contract voidable if the other part didnt know that they were mental?
Only if the other party should have recognized the problem.
-
Are the rules of drunkness(Brandon) similar to those for mental incapacity(Jess)?
Yes.
-
What 2 condidtions for drunkness must be met?
1. Been so drunk, that they could not know/appreciate what they were doing.
2. The other party must have been alerted of that fact. (vomit on shoes)
-
When can the intoxicated party able to avoid a contract?
As soon as they are sober.
-
How are corporations treated?
As legal persons.
-
How are statutory corporations limited in their contractual capacity?
Capacity to contract is limited by the powers given to them through legislation.
-
How are chartered corporations treated?
Same as individuals who have reached age of maturity.
-
What does ultra vires mean?
"Beyond the authority." (In a manner that exceeds its statutory powers.
-
What are associations?
Unincorporated business organizations that lack contractual capacity.
-
Can a member of an association enter into a contract for its benefit?
Yes, but it is that specific member who becomes liable under the agreement.
-
What is an Indian band?
A body of Aboriginal people whose land and money are held by the Crown.
-
Do Indian bands have the same contractual capacity as associations?
No, they have the same as corporations, they can sue or be sued.
-
What are some restrictions on their capacity to contract?
They cannot use reserve land in any way, shape or form. (Cannot be used as security for a credit transaction.)
-
Can the land in a reserve be transfered to another member of the band?
No. Any deed, lease contract, instrument, document, or agreement is void unless approved by the crown.
-
Other than reserve land, do Aboriginal persons have the same contractual capacity as everyone else?
Of course.
-
What requirement arose from an old piece of english legislation - The Statute of Frauds?
That certain types of contracts must be evident in writing.
-
Why did the Statute of Frauds require some contracts to be evidenced in writing?
Reducing the risk of perjury, or lying in legal proceedings.
-
Is it still as important today to have a written document under the Statute of Frauds?
No, electronic and paper documents can now be produced, altered and reproduced with a few clicks of a mouse.
-
Does the Statute of Frauds apply to guarantees?
Yes.
-
What is a guarntee?
Contractual promise by a third party (guarantor) to satisfy a debtor's obligation if that debtor fails to do so.
-
Does the guarantor promise to pay not mattet what?
No, they give a conditional promise. (Only if the debtor cannot pay.)
-
What is an indemnity?
An unconditional promise to assume another's debt completely.
-
Are contracts for the sale of land enforceable if they do not have evidence in writing?
Nope, only enforceable with writing.
-
If a contract is not going to be preformed within a year, do they have to be evidenced in writing?
Yes, otherwise they are unenforceable.
-
Are there writing requirements for the Statute of frauds?
Yes, the court must decide if the writing requirement was satisfied.
-
Does a Statute of Fraud have to take any particular form?
Nope, it just has to:
1. provide evidence of the essential elements of the contract (party names, subject matter, price)
2. Be signed by the party against whom the agreement is being forced.
-
If the Statute of frauds renders a contract unenforceable because of unsufficient evidence in writting, is the contract void?
Nope, just unenforceable.
-
What is consensus ad idem?
A shared mutual agreement to enter into an enforceable transaction on a particular basis. Similar to a meeting of the minds.
-
When will a mistaken identity render a contract defective?
1. The mistake was known to the other contractual party.
2. The mistake was material.
-
What is a material mistake?
One that matters to the mistaken party in an important way.
-
What mistake puts the parties at cross-purposed and therefore prevent the formation of a contract?
When the parties are mutually mistaken about the subject matter of an agreement. (Mistake about subject matter)
-
What happens in a mistake about existence of the subject matter?
Both parties make the same mistake based upon a false assumption.
-
What is a force majeure/irrestible force clause?
States which party bears the hardship if the subject of the contract is destroyed/unexpected event occurs. Affected party should then get insurance.
-
What is it called when the parties make an erroneous assumption about the future.
The contract is frustrated.
-
When does a frustrating event take place?
Sometime after the contract is already in place.
-
When is a contract frustrated?
When some event make performance impossible or radically undermines its very purpose.
-
Common law jurisdictions use and all-or-nothing rule which means?
A purchaser can recover all of its contractual payments if it has NOT recieved any benefit from the seller. If the purchaser recieved SOME benefit, it cannot recover any payments.
-
What is non est factum?
Means "this is not my deed." Allows mistaken party to avoid obligations under the contract.
-
When can non est factum be used?
When there is a fundamntal, total or radical difference between what a person signed and what they thought they were signing.
-
Does non est factum apply when a mistaken party signs an agreement without carefully reading it?
Nopers.
-
What are 3 types of unfair barganining?
Duress
Undue influence
Unconscionable transactions
-
What is duress of person?
Refers to physical violence or the threat of violence against a person or that person's loved one.
-
What happens if a contract is the product of duress?
It is voidable.
-
What is duress of goods?
When one person siezes or threatens to seize another person's goods to force that person to create a contract.
-
What is economic duress?
When a person enters into a contractual arrangememnt after being threatened with finanical harm.
-
Is a contract more likely to be considered voidable if the victim succumbed to the pressure without legal advice?
Yes, otherwise argeement tends to look more like a sounds business decision.
-
When should the victim of duress start legal proceedings for the courts to be more sympathetic?
Promptly after the effect of the pressure has passed.
-
Does it affect the courts decision if the victim of duress protested when presented with the pressure?
Yuppers.
-
What must a victim of duress show?
That they could not have reasonably resisted.
-
What is undue influence?
Abuse of a relationship inorder to influence someone and induce an agreement.
-
What are the two types of undue influence?
Where parties are in a fiduciary relationship.
Where there is no special relationship between the two parties.
-
What is a fiduciary relationship?
When one person is in a position of dominance over the other.
-
What happens if the fiduciary proves that the transaction was fair?
The contract will stand.
-
What is an unconscionable transaction?
An agreement that no right-minded person would ever make and no fair-minded person would ever accept.
Characterized by its one-sidedness.
-
What must the weaker party prove in unconscionable transaction?
1. there was an improvident bargain.
2. there was an inequality in the bargaining position of the two parties.
-
What is an improvident bargain?
Bargain made without regard to the future.
-
What are illegal agreements?
Expressly or implicitly prohibited by statute.
-
What is a regulatory statute?
The purpose is to not punish individuals for wrongdoing, but rather to regulate their conduct through an administrative regime.
-
Are some agreements illegal even if they do not contravene a particular statute?
Yes.
-
What is a covenant in restraint of trade?
A contractual tern that unreasonably restricts one party's liberty to carry on a trade, business, or profession in a particular way.
-
What are some examples of a covenant in restraint of trade?
Trade or not trade with someone in particular.
Work for some in particular, or at least not work for anyone else besides said person.
|
|
