Contracts
What is a contract?
An agreement between two or more parties that is recognized and enforceable by law
What is a tort?
A wrong done to another (outside of contract) that causes that party to suffer loss or harm.
What is the initiating document?
Civ: Statement of Claim or Plaintiff's Claim
Crim: Information
How do you prove a contract?
Facts of your client's case + applicable legislation and case law = contract
What are the three elements of a contract?
1) an offer by one party
2) an acceptance by the other party
3) an exchange of consideration
What are the three branches of tort law?
1) Intentional torts (ex. defamation, trespassing)
2) Negligence (non-intentional)
3) Strict liability (non-intentional)
Who bears the onus of the case?
Civ: Plaintiff
Crim: the Crown/Prosecution
What are the sources for tort and contract law?
Legislation (statute law) which are passed by;
- the provincial government (t+c)
- the federal government (somewhat to c, not usually t)
And case law, passed by the courts
Freedom to Contract vs Power Imbalances
It poses that as adults we are free to contract as we wish and bargain on our own terms. However, we all don't have the same power or the other party holds more power than the other party.
What is the role of the plaintiff?
The plaintiff is the party to whom the tort occurred to. They bring forward the Statement of Claim. They have to have burden of proof to prove their case.
What is the role of the victim?
Civ: Plaintiff
Crim: Witness
What is an example of legislation that codifies an aspect of contracts?
Sale of Goods Act, Residential Tenancies Act, Consumer Protection Act
An example of how legislation has intervened with contract law.
Cellphone contracts, to help even the playing field between company and customer.
Is a tort a crime? Is a crime a tort?
A tort can, but not always, be a crime. A crime can be a tort.
What needs to be proven?
Civ: a balance of probabilities
Crim: beyond a reasonable doubt
What legislation can shield parties from liability?
Occupier's Liability Act, Negligence Act
What must a contract have to be binding?
• A binding contract must have a mutual exchange of promises.
• The promises must be intended to be binding and enforceable.
• The parties must promise something of value to each other, with some exceptions such as where a contract is under seal.
• The parties must have the legal capacity to contract, for example, by having reached the age of majority and by being of sound mind.
• The contract must comply with legal formality requirements, for example, by being in writing or under seal in some cases.
What does a balance of probabilities mean?
It means more likely than not, and is used in civil cases.
Why may someone be found not guilty in criminal court, but be held liable in civil court?
In criminal court, the defendant must be proven beyond a reasonable doubt in order to be held liable, whereas in civil court it is down to a balance of probabilities; and they can be found more likely than not to be liable for the lawsuit against them.
How can case law help prove liability or a contract?
Case law can help see how the law applies to specific facts when the legislation is not clear or there (ie. Dog Owner's Liability Act, follow the precedent of higher courts). The same can be said of helping to see how the law applies to a particular contract.