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Contracts II Midterm
Midterm Flash Cards
| Term | Definition |
|---|---|
| Doctrine of Privity of Contract | Only parties that are 'privy' to a contracts can sue on or defend with the terms of the contract. |
| Third party beneficiaries | Persons expressly or impliedly referred to in contract whom the contract is intended to benefit, and may be entitled to rights under the contract. |
| Provender v Wood | Father of the bride dowry action. 3PB can bring action if the benefit accrues to them. |
| Tweddle v Atkinson | 2nd father of the bride dowry action. 3PB must provide consideration. |
| Dunlop Pneumatic Tyre Co Ltd. v Selfridge & Co Ltd | l |
| How can a 3PB acquire the benefit of a contact (exceptions) | Right to sue: statute; specific performance; trust; agency Defence: employment; subrogation |
| 3PB Statute Exception | Insurance Statutes: 3PB of a life insurance policy can sue an insurance company directly; a 3PB with a judgment against an insured can bring an action against ICBC; 3PB liability insurance |
| 3PB Specific Performance Exception (Beswick v Beswick) | The beneficiary of a will can sue in their right as an administrator/trix |
| 3PB Trust Exception (Vandepitte) | If an intention to create a trust relationship is shown, then a Trust beneficiary can sue a promisor who owes an obligation with regard to the chose en action held in trust. |
| 3PB Agency Exception | If an agency relationship arises, then the principal can sue on the agent's capacity as a promisee. "Agency need not be explicitly mentioned in a K to arise. |
| McCannell v Macabee Mclaren | Agency found between Studebaker and its dealers; dealers can sue one another re Infringement of Territory Clause as 3PB even though the word agent was never used |
| New Zealand Shipping Co | exclusion clause in a bill of lading could be used by a 3PB because of agency relationship. 1: it was intended. 2: clearly the shipper was contracting for the stevedore. 3: the carrier had this authority. 4: consideration. |
| London Drugs v Kuehne & Nagel | An employee can take advantage of exclusion clauses in an employer's contract as long as it's intended to extend to the employees and they were acting in the course of business. |
| Fraser River Pile & Dredge | there is a subrogation exception with the same rtequirements as the employment exception |
| Condition Precedent | A condition which must occur before a K becomes binding, BoP on the party trying to prove the K. |
| Condition Subsequent | A condition that ends a K upon occurrence, BoP on the party looking for relief. |
| Conditional Offer | An offer to enter into a K if a specific thing occurs; can withdraw before occurrence: |
| Conditional Acceptance | Acceptance of an offer provided that something occurs; can withdraw before occurrence; |
| Intention re: Conditions Precedent | The wording of a contract goes toward determining whether the parties intended the condition precedent to precede formation or performance. |
| Certainty re: Conditions Precedent | the condition must be sufficiently certain or it can be voided for uncertainty. |
| Consideration re: Conditions Precedent | For a condition precedent to be binding, there must be consideration for it, very much like an option contract. Based on the relative subjectiveness or objectiveness of a CP |
| Wiebe v Bobsien | The condition to sell another property before completing a K of purchase and sale was both subjective and objective, but ultimately it was considered too subjective. |
| Notification about Conditions Present | Not required unless the even is particularly within the knowledge of one party. (eg subject to financing) |
| Reciprocal Subsidiary Obligation | The obligation to bring about a condition precedent. Can include the requirement to reasonably try to satisfy the CP. In this case, there is a K but performance is suspended. |
| Dynamic Transport Ltd v OK Detailing | The court can require a party to satisfy a reciprocal subsidiary obligation |
| Eastwalsh Homes v Anatal | The more improbable a CP is to be satisfied, the less damages it's worth. There are four remedies possible for breach of a reciprocal subsidiary obligations |
| Four Remedies for Breach of Reciprocal Subsidiary Obligations | Full loss of bargain damages (if can waive the CP); Damages for lost chance (reasonable probability that CP will be satisfied - 50%+ x full loss damages); Specific performance of primary obligation (only if CP can be waived); Specific subsid obl |
| Unilateral Waiver | When the party benefitted by a CP waived the CP and requires performance of the K |
| Turney v Zhilka | A true condition precedent cannot be waived without an express term. No longer applies because abolished by s 54 of the L&E Act |
| True Condition Precedent | A condition precedent entirely dependent on a third party. |
| Misrepresentation | A false representation |
| Rescission | A contractual remedy for mere misrepresentation that places the parties in the same place they would have been before the contract |
| Redgrave / Reliance Rule | Representee must have been induced to enter into the contract by the misrepresentation. If a misrepresentation is material, the presumption is that there was reliance. |
| Smith v Land and House / The fact/opinion rule | To sue for rescission, the misrepresentation must be fact not opinion. But if the opinion is based on unreasonable facts that the representee doesn't know about that is actionable. |
| Bank of BC / Misrepresentation by omission/silence | Misrepresentation by omission is not actionable or good as a defense, exept if there is a fiduciary relationship. |
| Kupchak v Dayson / Restitution, laches and affirmation defences | Restitution: you can't go back so you can't have rescission Affirmation: the K was affirmed after the misrepresentation was exposed Laches: equitable limitation period on a claim |
| Redican v Nesbitt / execution rule/limitation | If a K has been executed/completed you cannot have rescission unless it is so serious it changes the substance of the K. |
| Heilbut, Symons v Buckleton / Intention test | To determine if a statement is a term you must look at the intention of the parties based on the totality of the evidence. |
| Dick Bentley v Harold Smith / Intention test | May have to consider reliance with intention to have a term vs a contract. |
| Conditions | Very important terms, the breach of which will allow an innocent party to repudiate a K. |
| Warranty | A less serious term the breach of which will allow an innocent party to sue for damage. |
| Leaf v International Galleries | Per the sale of goods act, you cannot reject good after an unreasonable time has elapsed |
| Concurrent Liability | When a plaintiff has a claim for damages in contract and tort arising from the same incident |
| Sales talk | mere puffery |
| Mere Misrepresentations re concurrent liability | No 'true' concurrent liability because there's no breach of K |
| Post contractual misrepresentations re concurrent liability (BG Checo) | There is concurrent liability, and you can choose unless there's an exclusion clause. |
| BG Checo | You can choose between contract or tort unless there's an exclusion clause. |
| Parol Evidence Rule | The express terms of a written contract 'intended' to be the whole contract cannot be modified by parol evidence. (Parol = extrinsic) |
| Built-In Exception | The rule doesn't apply |
| PER: written K is not intended as the whole contract exception | in this case there is usually a mixture of oral and written contracting |
| PER: collateral oral contract exception | an oral contract K1 precedes the written K2 and as long as they don't contradict then they are both vaild Haurish |
| PER: Implied terms exception | you can lead extrinsic evidence when there is no contradiction |
| PER: mere misrepresentation exception | If you sue for rescission because the information misled you, then you can lead parol evidence |
| True Exception | the rule applies but you disregard it. |
| PER: sham agreement exception | Not including fraud or illegality; if the agreement is made with no intention then it's an exception to PER |
| PER: subsequent oral contract exception | provided that a subsequent oral contract has consideration, you are able to lead parol evidence to establish a novation |
| PER: condition precedent exception | Can be an exception, even if oral |
| PER: deed/mortgage exception | NO IDEA, ask someone |
| Evans | a poor application of the 'not intended to be whole' built-in exception |
| Gallen | PER not absolute; oral misrepresentation exception is not only for excl clauses; PER more likely to be avoided when add v. contradict; PER is rebuttable presumption; original K are stronger; specific misreps + likely to succeed v gen. excl. |
| Hong Kong Fir | A delay in shipping case that created "third category" or "innominate" or "intermediate" terms |
| Third Category Terms | Terms whose breach could result in depriving the party not in default of substantially the whole benefit the K was intended to provide, but could also be minor and more characteristic of a warranty. Only found if can't determine term from intention. |
| Wickman Machine Tool | Used the intention test to determine that a term was not a condition without reference to the Hong Kong Fir test |
| Enforcing a Contract | warranty breach, K is enforceable; conditions breach K not enforceable; |
| Fairbanks Soap Co | lump sum K must be substantially completed before can enforce; not substantially completed is not poorly completed |
| Time is of the essence | A phrase that will change a time stipulation from a warranty to a condition. |
| Payment for Service Partially Rendered | On quantum meruit basis, and requires a 2nd implied K to be proven |
| Sumpter v Hedges | Real Property is an exception to payment for service partially rendered rule. |
| Recovery of Money Payments | You can't get deposits back because they guarantee performance, but partial payments must be returned. |
Created by:
21000704
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