COMM 393 Study Guide - Final Guide: Ginger Beer, Gross Negligence, Breast Implant
Laws and Cases
COMM 393
Law
Definition
Cases
Statute law
• Law created by the government
- Courts usually use strict interpretation of statute
law
• Charter of Rights and Freedoms
- Section 1 – none of the rights are absolute
- Section 33 – Notwithstanding Clause
• Liebman v. Canada
- Charter applies to
delegated go’t
authority
Equitable remedy
Requirements for equitable remedy:
(1) Money is an inadequate remedy
• For specific performance, the subject of the
contract must be unique
(2) Fast feet
(3) Clean hands
Types of equitable remedy:
• Specific performance – fulfill contract
• Rescission – return parties to original position
(unwinds contract)
• Injunction – stop actions (ex. Restraining order)
• Ellen house example
• Duke’s Cookies v. UBC
Alma Mater Society
- Gratuitous promise
made for new lease for
larger space
- Duke’s relied o the
promise/conduct and did
not renew existing lease
→ “peifi perforae
Law format
(1) Facts
(2) Issues
(3) Law
(4) Application
(5) Conclusion
• Case briefs
• Closing statements for
Plaintiff and Defense
• Decision by judge
Contracts
• Can be oral or written
- Except land and personal guarantees must be written
• Requires 6 elements:
(1) Intent
• Both parties ust hae itet / eetig of the ids
• Presumed intent when:
- Two strangers
- Business transaction
• Presumed no intent when family members
Presumptions can be rebutted
- Objective test – do outward actions indicate intent
(2) Offer
[Proposal + Intent]
• Should be specific:
- Terms
- Time limit (reasonable time limit interpretation if
not specified)
- Method of acceptance
• Proposal ithout itet → invitation
- Solicitation for offer
- Not enforceable unless unilateral exchange
Requires three elements:
(a) Parties
(b) Price
(c) Subject
• Carlisle v. Carbolic
Smoke Ball
- Objective test (deposit
by company)
- Unilateral exchange
• R v. 279709 Alberta Ltd.
(Visions Electronics)
- Mere invitation
• Livingstone v. Evans
- Sale of house and
deteriig if there’s a
offer (sorting through
counteroffers)
find more resources at oneclass.com
find more resources at oneclass.com
Laws and Cases
COMM 393
Offer can lapse when:
(a) Offeree does not accept within specified time limit
(b) Not accepted within reasonable time limit
(c) Offer rejected by offeree
(d) Offer revoked by offeror
(e) Counteroffer made
(f) Either party dies/becomes insane
• Montane v. Shroeder
- Subject to clause
- Counter offer vs. mere
inquiry
(3) Acceptance
• Must accept all terms of the offer without change
- Mirror image
• Law of where the acceptance is received applies
Acceptance rules/guidelines:
(a) Postal aeptae rule → aeptae oplete
when letter is mailed
• Applies when mail acceptance specified in
offer or no method specified
(b) Telephoe → he aeptae heard
(c) Eail → he read
• Rudder v. Microsoft
Corporation
- Acceptance when click I
agree on ToS
• Saskatchewan River
Bungalows v. Maritime
Life Insurance Company
- Postal acceptance rule
does not apply (contract
specified receipt)
(4) Consideration/exchange
Unilateral
Exchange of a promise for a service/act
Bilateral
Exchange of promises
• Courts do not look at the adequacy/fairness of
exchange
- UNLESS evidence of fraud/undue influence/duress
• Nominal exchange can be used
- $1
- Red legal seal
• Hong Kong Bank v. New
Age Graphic Design Inc.
- Feelig of seurit
from loan was deemed
sufficient consideration
- The ords gie uder
seal = otroersial
(5) Capacity
• Legal representation for minors
• Mental fitness
(6) Legality
• Waiver forms
find more resources at oneclass.com
find more resources at oneclass.com
Laws and Cases
COMM 393
Equitable estoppel
Equity prevents the promissor from denying the
promise
• Gratuitous promise – offers without reciprocal
consideration
• Past consideration from an original contract cannot
be used again for the gratuitous promise
Equitable estoppel applies if all conditions met:
(1) Existing contract
(2) The contract is later modified by a gratuitous
promise
(3) Other party relies on the gratuitous promise and
altered his/her actions
(4) If promised not fulfilled and caused hardship
(5) *Can only be used as a defence (shield)
• Saskatchewan River
Bungalows v. Maritime
Life Insurance Company
- Equitable estoppel
used as a offee →
does not apply
• Foakes v. Beer
- Gratuitous promise
made
- No hardship →
equitable estoppel does
not apply
- Past consideration in
original contract cannot
be used as consideration
again
Interpretation
Express terms:
(1) Literal – dictionary definition
(2) Liberal – contextual analysis
(3) Contra proferentum – interpret in least
advantageous way to the party that suggested it
• Sale of Goods Act
• Blackswan Goldmines
Ltd. v. Goldbelt
Resources Ltd.
- In appeal, Plaintiff
argued that connection
between top of formulas
should be implied
- Contextual analysis did
not agree with literal
translation
- Interpretation not
oious → ters ot
implied
• Nude guy running
- Dictionary definition of
nude
Implied terms:
• Courts will only imply terms to exist when:
(1) They give effect to the obvious (prima facie) intent
of the parties
• Bystander test or
• Both parties agree
(2) Statute allows the court to (ex. SGA)
Sale of Goods Act
• Sale – when the seller agrees to transfer title of the
goods to the buyer for monetary consideration
• Goods – Tangible moveable goods/property
- Excludes land, services, intangibles, gifts, barter
• Borek v. Hooper
- Painting not durable
according to Borek,
Small Claims Court
awarded value of half of
remaining life to Borek
- Hooper appealed
- SGA does not apply
because the
commissioned painting
was a service
Warranty
Minor, non-essential term of the contract
• If warranty breached, the contract is not discharged
• Non-breaching party can sue for damages later on
• SGA
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Courts usually use strict interpretation of statute law: charter of rights and freedoms. Section 1 none of the rights are absolute. Requirements for equitable remedy: (1) money is an inadequate remedy: for specific performance, the subject of the contract must be unique (2) fast feet (3) clean hands. Types of equitable remedy: specific performance fulfill contract, rescission return parties to original position (unwinds contract) Contracts (1) facts (2) issues (3) law (4) application (5) conclusion: can be oral or written. Charter applies to delegated go(cid:448)"t authority: ellen house example, duke"s cookies v. ubc. Gratuitous promise made for new lease for larger space. Duke"s relied o(cid:374) the promise/conduct and did not renew existing lease. Pe(cid:272)ifi(cid:272) perfor(cid:373)a(cid:374)(cid:272)e: case briefs, closing statements for. Except land and personal guarantees must be written: requires 6 elements: (1) intent, both parties (cid:373)ust ha(cid:448)e i(cid:374)te(cid:374)t / (cid:862)(cid:373)eeti(cid:374)g of the (cid:373)i(cid:374)ds(cid:863, presumed intent when: Business transaction: presumed no intent when family members.
