General Principles
Rule of privity (bonus points for every historic exception you can name)
“Only a person who is party to a contract can sue upon it” (Dunlop Pneumatic Tyre Co)
Ray arrived at LaRonde in Montréal, paid and received her non-refundable ticket. The front of the ticket included the price of the day-pass, the date, a barcode, and a massive logo of Six Flags. Since the printer ink was on its last legs, the waiver was printed lightly and illegibly on the back. After entering the park, each ride included large signs with smaller text, repeating the waiver on the back of the ticket.
Unfortunately, Ray gets injured on the Goliath. Counsel for LaRonde pointed to the several large signs next to the rides stating the waiver of liability. Is LaRonde likely to succeed on this reasoning?
No, post-contract notice does not count.
“By the time Mr Apps arrived at the Terrain Park, he paid for his non-refundable ticket, took the lift up the mountain, and had begun snowboarding. It was far too late to give notice of what was in the waiver. That had to be done at or before the ticket booth.”
Apps at para 58.
Ben offered to sell Liam his bike for $150 but did not specify a time to accept. Liam responds three years later to accept. Would this be considered a valid acceptance?
No, if the offeror doesn’t specify a time by which they want a response, the offeree has a reasonable time to accept. Three years is unlikely to be a reasonable amount of time.
Taylor Swift famously feuded with this (now former) manager of a teen pop sensation over purchasing her masters of her first six studio albums.
Scooter Braun
Medium vanilla iced coffee from Tim Hortons
What does the “mirror image rule of offer and acceptance” refer to?
The “mirror image” approach to contract formation is a recognized model where one party (offeror) states all the terms on which they are prepared to do business and present the terms to the other as the “offer.” The other party (offeree) can accept or reject the offered terms.
In the course of a tendering process, the owner selected a bid that did not substantially comply with the tendering requirements. The owner argues that he can exercise his privilege clause to choose this bid. Are they correct?
No, the privilege clause is compatible with the obligation to accept only a compliant bid (MJB Enterprises)
Lauren is an employee who is wanting to benefit from a clause in a lease contract between her employer and another party (she is not a party to the contract). She is worried that, strictly on the basis of it being a lease contract, she will not be able to benefit from it. Is this true?
No. The court in Orange Julius found that “as to the form of the agreement, I see nothing in London Drugs to suggest that relaxing the doctrine of privity should turn on whether the contract in question is a lease, a contract of storage or any other particular form of agreement.” What matters is the presence of services.
This pop singer diva sued her ex-husband for a $50 million inconvenience fee after he called off their wedding, essentially wasting her time. She settled out of court for $5 million and got to keep the ring! Guess he wasn’t as "obsessed" with her as she thought!
Mariah Carey
Pop Culture: In 2014, a guy named Michael Fiore filed a lawsuit claiming that a Miley Cyrus music video caused him emotional distress, as he was “emotionally crushed” by the song’s lyrics. He sought millions in damages, arguing that the video was just too much for him to handle. Needless to say, the case was dismissed. What video/song was it?
Wrecking Ball
General organization principle of good faith
The organizing principle of good faith exemplifies the notion that, in carrying out his or her own performance of the contract, a contracting party should have appropriate regard to the legitimate contractual interests of the contracting partner. It merely requires that a party not seek to undermine those interests in bad faith (Bhasin).
Kaiden offers to sell Kestrel his contracts text book for $70, saying he would keep the offer open for a week. Kestrel thanks him and four days later, tells him that she wants to accept his offer. Kaiden apologizes and explains that he takes back his offer, telling her that someone offered him more money. Kestrel wants to argue that Kaiden was obligated to keep the offer open until his deadline and had no right to revoke the offer. What can Kaiden argue?
Dickinson v Dodds establishes that the offeror holds a right to revoke the offer before it is formally accepted so long as there was no consideration given to keeping the offer open. Although Kestrel gave no consideration for keeping the offer open, she accepted the offer within the time provided, so Roman was not entitled to revoke the offer.
Uber and Bhasin both talk about the tension between these two interests.
Freedom of contract and equity.
This former, award-winning NHL player juggled both a professional hockey career and his law school education at this Canadian law school. (Bonus points [+20 points] of each that you can name: Name the player and/or the team he was part of).
Ken Dryden balanced his legal studies at McGill University while playing for the Montreal Canadiens.
Torts: Consent can be used as a defence to an intentional torts. Name factor(s) vitiate consent (how a plaintiff can show that their consent was vitiated): (20+ bonus points for every factor named)
Fraud (deceit), mistake, duress, public policy.
Unconscionability
Unconscionability is an equitable doctrine that is used to set aside “unfair agreements [that] resulted from an inequality of bargaining power.” [...] It evolved to cover any contract with the combination of inequality of bargaining power and improvidence (para 53 of Uber).
Amy works at a bike rental store and hands over the standard form contract used by all other bike rental places in the province to Bradley, a repeat customer. The terms are standard, non-onerous and are in line with the expectations of the customer. Everything is neatly laid out in 14-point font. Bradley was not in any rush, and signed it without paying attention. For the first time ever, he forgets to lock the bike, which gets damaged overnight. He is held liable for it and must pay the company for the damage as well as a penalty (as they are down a bike and will likely lose business), as provided for under the contract. He wants to argue that he did not know of those terms and wants to rely on Tilden. What is the likely outcome?
Bradley is unlikely to be successful because under L’Estrange, when a document containing contractual terms is signed, then, in the absence of fraud, misrepresentation [and non es factum], the party signing it is bound and it is wholly immaterial whether he has read the document or not.
Tilden is distinguishable because the terms are non-onerous, consistent with the overall purpose of the contract and cannot be said to not be representative of the signer. As such, Amy is unlikely to have been required to take reasonable measures to draw those terms to Bradley’s attention.
Shane, who did not complete further education beyond middle school, recently signed a complex contract to work with Amazon that he initially did not really understand because of the legal jargon. Luckily his best friend Ilya is a successful contracts lawyer and so Shane was able to get independent legal advice before signing this contract. Thanks to his friend, he has a better understanding of what he is signing on to and was able to negotiate certain clauses to be more favourable to him. What impact does this legal advice have on a potential future unconscionability argument?
It would likely weaken the claim because:
If the weaker party was to get legal advice, it is not determinative. It only works/defeats the claim if the legal advice would actually meaningfully lessen the inequality of bargaining power that is at issue in the situation (typically an informational asymmetry that knowing about the law could be said to help minimize).
(Uber)
This Kardashian ex sued the famous family when the their spin-off show was cancelled shortly after they and their partner split. The ex sued for millions of compensatory and punitive damages, defamation, intentional interference with contract.
Blac Chyna
Property (Courtesy of Miss Lauren Miller): The City of Ottawa has recently enacted a bylaw that prohibits the playing of music from 11:00pm-7:00am daily. Grace owns and operates a night club that opens at 10:00pm daily, and argues that this bylaw constitutes de facto expropriation of her property. What is the two-step test Grace needs to prove in order to make her claim? (BONUS: Would her claim likely be successful or not?)
1. The private property owner lost the right to virtually all reasonable uses of their land as a result of the government-imposed land regulation; and
2. The government gained an interest in this land as a result of the private property owner’s loss
Bonus: Unlikely to be successful
Signed documents (bonus for every exception you can name)
When a document containing contractual terms is signed, then, in the absence of fraud, misrepresentation [and non es factum], the party signing it is bound and it is wholly immaterial whether he has read the document or not. (L’Estrange v Graucob)
Vivian had run her business as a sole-proprietor for years and recently changed her business to include an employee a few weeks ago. Tom, who had been hiring Vivian’s catering company since she first started, hired her again for his recent event. Unbeknownst to him, Vivian’s employee was tasked to handle an event which led to property damage. Vivian’s employee seeks to benefit from the third-party beneficiary rule. What counter-argument is Tom most likely to raise?
Tom is likely to argue that he could not reasonably foresee that the operation would be done by employees as Vivian had run her business as a sole-proprietor for years and he had done business with her in this capacity. He could argue that, given the recent development of now having an employee, he did not foresee the work being done by Vivian’s employee and thus she should not benefit from the third-party beneficiary rule.
Uday has been working for Nathan for years, and has been a loyal employee. He does not see himself working elsewhere or for anyone else. Nathan wishes to go a new direction and hire his son Jacob to replace Uday and does not mention this intention to Uday. After Nathan exercises his right to not renew the contract, Uday wants to complain that Nathan had an obligation to disclose this intention and that the loyalty was reciprocal. Is he correct? If so, why? If not, what does the duty of honest performance entail?
(Bonus: What questions could you ask Uday to help determine if there was a breach of duty of good faith? (i.e., what information is missing for a better answer?)
No, Uday is unlikely to succeed because the duty of honest performance does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one’s contractual performance (Bhasin).
(Bonus:So you’d want to ask Uday if there had been any recent representations about renewing the contract that could be argued to have led him to act in a different way than he would have had he known the contract was not being renewed)
This known perfumer is currently being sued by Estée Lauder Companies for trademark infringement and breach of contract for using her name on a perfume collaboration with Zara. The perfumer had sold the exclusive rights to her name, including restrictions on using it for business fragrance business back in 1999. (Hint: Some best sellers include Wood Sage & Sea Salt, English Pear & Freesia, and Hudson William’s favourite Myrrh & Tonka).
Jo Malone
FAMILY FEUD (100 points for every right answer chosen in Family Feud–+10 points if you write down the answer in the right spot): Name a place where it’d be smart for a lawyer to advertise.