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Torts Test 3
| Question | Answer |
|---|---|
| What is representation? | a statement made to induce someone to enter into a contract. |
| What was the legal principle in Hirsch v duBrule | the disclaimer clause must be brought to the attention of the other party, otherwise the contract provision is of no effect |
| What is a warranty | a minor term of a contract |
| What is a term | provision of a contract - can be a warranty or condition |
| What is the Parol Evidence Rule? | if a contract is in writing and is clear, no other written or oral evidence is admissible to contradict, vary, or interpret the agreement |
| What is an exclusion clause and provide an example | A clause in a contract that limits the liabilities of the parties - i.e. a parking lot ticket includes an exclusion clause excluding them from liability to any theft/ damage done to your car while on their premises. |
| What is a liquidated damages clause? | a clause in a contract that attempts to reasonably estimate the damages that will be suffered if the contract is breached |
| Compare condition and warranty | condition is an essential term of a contract whereas warranty is a minor term of a contract |
| When a disclaimer clause clearly contradicts a pre-contract representation, what will the courts do? | the disclaimer clause, or any clause limiting liability, must be clearly brought to the attention of the other party. |
| What is the Contra Preferentem Rule and what is one type it is commonly applied to? | When dealing with ambiguous contractual terms, the court will choose the interpretation which favours the party who did not draft the contract. A type of contract this is commonly applied to are insurance contracts. |
| Define privity and describe the general rule and how it can be rationalized | Privity is the relationship that exists between the parties to contract. general rule is only those who are parties to a contract can enforce its terms. It can be rationalized however if the 3rd party paid or received no consideration for the contract. |
| Give one example of an exception to the rule of privity | insurance, partnerships, real property law |
| Describe novation | a new contract begins with agreement from all parties, the terms from the old contract are the same, just assigned to a new party |
| Describe vicarious performance | The performance of obligations under a contract by a third party in circumstances in which the original party remains responsible for proper performance |
| If work is "contracted out" and is faulty, who is responsible? | The original party of the contract remains responsible |
| What type of contract cannot be vicariously performed? | contracts of a personal nature (i.e. you buy concert tickets and the performers get sick and sub in a different performer, this can not be vicariously performed) |
| Define assignor | a party who assigns their rights under a contract to a third party |
| Define assignee | a party to whom rights under a contract have been assigned by way of an assignment |
| Define assignment | a transfer by one party of their rights under a contract to a third party |
| misrepresentation | can be innocent or fraudulent, can also be negligent, if made carelessly with no reasonable basis to believe it to be true |
| What are the possible consequences of a contractual defect | in some cases it renders as void ab initio, others it renders voidable. |
| list the 5 different types of contractual defects | misrepresentation, duress, undue influence, unconscionability, mistake |
| FILL IN THE BLANKS: a statement that is a misrepresentation must be a statement of [ ], not [ ]. | Fact, not opinion |
| FILL IN THE BLANKS: not only must the fraudulent statement be [ ] directed to the victim, it must also [ ] the victim to enter into the contract | only, have enticed |
| Define undue influence | persuasion, pressure or influence short of actual force that overpowers a weaker party's judgment and free will and imposes the will of the stronger party |
| What forms can undue influence take | Actual undue influence and presumed undue influence |
| Actual undue influence | a party actually engages in conduct that results in applying moral or other undue pressure to obtain a desired contractual result. |
| Presumed undue influence | Arises when the relationship between the parties raises a presumption of undue influence at or before the time the contract was made. |
| what are the 8 types of relationship that can fall into the “relationship” category | Family, solicitor-client, doctor-patient, guardian-ward, trustee-beneficiary, fiduciary relationships, confidential relationships, and advisory relationships. |
| Explain unconscionable transaction | focuses on the reasonableness of the contract itself, and how the conduct of one party affected the other party to the contract during the bargaining process |
| What type of transaction does the Unconscionable Transactions Relief Act apply to? | loans |
| What happens when a mistake is made with respect to the identity of a party to the contract? | it is rendered void |
| define and explain unilateral mistake | one party to a contract is mistaken about a fundamental element of the contract |
| define and explain mutual mistake | both parties to a contract are mistaken but each make a different mistake |
| define and explain common mistake | both parties to a contract are mistaken and make the same mistake |
| Restitution | a remedy by which one seeks to rescind a contract, if granted, restitution restores the party, as far as possible, to a pre-contract position. |
| Fraudulent misrepresentation | false statement that the maker knows is false, made to induce the party to enter into a contract. |
| Material inducement | a statement made before a contract is struck, that influences a party to enter into a contract. |
| Innocent misrepresentation | a false statement that the maker of the statement does not know is false, made to induce a party to enter into a contract. |
| Rescission | to abrogate, annul, avoid, or cancel a contract, particularly nullifying a contract by the act of the party. |
| representation | a statement made to induce someone to enter into a contract |
| term | A provision of a contract; terms are either conditions or warranties |
| condition | an essential term of a contract, the breach of which denies the innocent party the benefit of the contract, or defeats the purpose of the contract |
Created by:
Kelseym98
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