ࡱ>  vwxyz{|}~#`  bjbjmm NV4ThD(2TL"""";8>Ot$Eh`""``""zlzlzl`""zl`zlzlz"H tߋ1Fa j~0XrWRb WWW`Zzlb\]WWWrgWWW````(((:(((<   TOC \o "1-7" \h \z \u  HYPERLINK \l "_Toc240266109" Remedies for Breach of Contract  PAGEREF _Toc240266109 \h 8  HYPERLINK \l "_Toc240266110" Damages  PAGEREF _Toc240266110 \h 8  HYPERLINK \l "_Toc240266111" The Three Categories of Damages  PAGEREF _Toc240266111 \h 8  HYPERLINK \l "_Toc240266112" The Compensation Principle  PAGEREF _Toc240266112 \h 8  HYPERLINK \l "_Toc240266113" Peevyhouse v. Garland (diminution in value, essential vs. incidental, deterrence against windfalls)  PAGEREF _Toc240266113 \h 9  HYPERLINK \l "_Toc240266114" Radford v. De Froberville (essential vs. incidental, damages vs. equitable remedies, unjust enrichment)  PAGEREF _Toc240266114 \h 9  HYPERLINK \l "_Toc240266115" Ruxley Electronics and Construction Ltd. v. Forsyth (economic waste, introduction of non-pecuniary damages, consumer surplus)  PAGEREF _Toc240266115 \h 10  HYPERLINK \l "_Toc240266116" Victory Motors Ltd. v. Bayda (supply and demand and entitlement to expectation damages, precursor to mitigation)  PAGEREF _Toc240266116 \h 10  HYPERLINK \l "_Toc240266117" Contract Law and Social Ordering  PAGEREF _Toc240266117 \h 11  HYPERLINK \l "_Toc240266118" LAW AND ECONOMICS  PAGEREF _Toc240266118 \h 11  HYPERLINK \l "_Toc240266119" Other Aspects of the Compensation Principle  PAGEREF _Toc240266119 \h 11  HYPERLINK \l "_Toc240266120" Anglia Television Ltd. v. Reed (pre-contract expenditures, uncertain expectation damages)  PAGEREF _Toc240266120 \h 12  HYPERLINK \l "_Toc240266121" Bowlay Logging v. Domtar Ltd. (reliance damages exceeding expectation damages)  PAGEREF _Toc240266121 \h 12  HYPERLINK \l "_Toc240266122" Chaplin v. Hicks and Kinkel v. Hyman (chance of a profit is compensable)  PAGEREF _Toc240266122 \h 12  HYPERLINK \l "_Toc240266123" Limits on the Award of Damages: Remoteness  PAGEREF _Toc240266123 \h 13  HYPERLINK \l "_Toc240266124" Hadley v. Baxendale (reasonable foreseeability of loss)  PAGEREF _Toc240266124 \h 13  HYPERLINK \l "_Toc240266125" Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. (application of reasonable foreseeability concept)  PAGEREF _Toc240266125 \h 13  HYPERLINK \l "_Toc240266126" Implied Acceptance of Special Circumstances  PAGEREF _Toc240266126 \h 14  HYPERLINK \l "_Toc240266127" General factors to consider in deciding whether damages are too remote  PAGEREF _Toc240266127 \h 14  HYPERLINK \l "_Toc240266128" General purpose of limiting damages through remoteness  PAGEREF _Toc240266128 \h 15  HYPERLINK \l "_Toc240266129" Special Problems and Circumstances  PAGEREF _Toc240266129 \h 15  HYPERLINK \l "_Toc240266130" Jarvis v. Swans Tours Ltd (Contracts for pleasure, non-pecuniary damages)  PAGEREF _Toc240266130 \h 15  HYPERLINK \l "_Toc240266131" Wilson v. Sooter Studios Ltd. (non-pecuniary damages for a peace of mind K)  PAGEREF _Toc240266131 \h 16  HYPERLINK \l "_Toc240266132" Wharton v. Tom Harris Chevrolet Oldsmobile Ltd. (non-pecuniary damages, requirement of sensory experience discomfort)  PAGEREF _Toc240266132 \h 16  HYPERLINK \l "_Toc240266133" Warrington v. Great-West Life Assurance Co. (contracts promising peace of mind, aggravated damages)  PAGEREF _Toc240266133 \h 17  HYPERLINK \l "_Toc240266134" The Test to Employ to Find Non-Pecuniary Damages  PAGEREF _Toc240266134 \h 18  HYPERLINK \l "_Toc240266135" Aggravated Damages (dont use this term) and Employment Contracts  PAGEREF _Toc240266135 \h 18  HYPERLINK \l "_Toc240266136" Punitive Damages  PAGEREF _Toc240266136 \h 19  HYPERLINK \l "_Toc240266137" Limits of the Award of Damages: Mitigation  PAGEREF _Toc240266137 \h 19  HYPERLINK \l "_Toc240266138" General Notes on Mitigation  PAGEREF _Toc240266138 \h 20  HYPERLINK \l "_Toc240266139" Doctrine of Election:  PAGEREF _Toc240266139 \h 21  HYPERLINK \l "_Toc240266140" Date of Assessment of Damages  PAGEREF _Toc240266140 \h 21  HYPERLINK \l "_Toc240266141" Equitable Remedies  PAGEREF _Toc240266141 \h 22  HYPERLINK \l "_Toc240266142" General Comment on Equitable Remedies  PAGEREF _Toc240266142 \h 22  HYPERLINK \l "_Toc240266143" Requirements for an order of specific performance  PAGEREF _Toc240266143 \h 22  HYPERLINK \l "_Toc240266144" Injunctions and undue restraint on trade  PAGEREF _Toc240266144 \h 23  HYPERLINK \l "_Toc240266145" Formation of Contract  PAGEREF _Toc240266145 \h 23  HYPERLINK \l "_Toc240266146" Offer and Acceptance  PAGEREF _Toc240266146 \h 23  HYPERLINK \l "_Toc240266147" Test Applied  PAGEREF _Toc240266147 \h 23  HYPERLINK \l "_Toc240266148" Termination of Offers  PAGEREF _Toc240266148 \h 23  HYPERLINK \l "_Toc240266149" Acceptance of offer  PAGEREF _Toc240266149 \h 24  HYPERLINK \l "_Toc240266150" Communication of acceptance  PAGEREF _Toc240266150 \h 24  HYPERLINK \l "_Toc240266151" Contracts made by mail (Postal Acceptance Rule)  PAGEREF _Toc240266151 \h 24  HYPERLINK \l "_Toc240266152" Where is a contract made? (Jurisdictional issues)  PAGEREF _Toc240266152 \h 24  HYPERLINK \l "_Toc240266153" Email contracts  PAGEREF _Toc240266153 \h 25  HYPERLINK \l "_Toc240266154" Uncertainty in Formation of Contract (unenforceability of agreements to agree, incomplete agreements, or contracts with ambiguous or missing essential terms)  PAGEREF _Toc240266154 \h 25  HYPERLINK \l "_Toc240266155" Foley v. Classique Coaches (vagueness in price, arbitration clause, ongoing relationship)  PAGEREF _Toc240266155 \h 25  HYPERLINK \l "_Toc240266156" Courtney and Fairbairn Ltd. v. Tolaini Brothers (Hotels) Ltd. (unenforceability of agreement to agree, one time (not ongoing) relationship)  PAGEREF _Toc240266156 \h 26  HYPERLINK \l "_Toc240266157" Empress Towers Ltd. v. Bank of Nova Scotia (good faith)  PAGEREF _Toc240266157 \h 26  HYPERLINK \l "_Toc240266158" Other notes on good faith:  PAGEREF _Toc240266158 \h 27  HYPERLINK \l "_Toc240266159" Policy Rationale for Legal formalities (e.g., consideration)  PAGEREF _Toc240266159 \h 27  HYPERLINK \l "_Toc240266160" Legal formalities  PAGEREF _Toc240266160 \h 27  HYPERLINK \l "_Toc240266161" Statute of Frauds  PAGEREF _Toc240266161 \h 27  HYPERLINK \l "_Toc240266162" Consideration  PAGEREF _Toc240266162 \h 27  HYPERLINK \l "_Toc240266163" General Comments on Consideration  PAGEREF _Toc240266163 \h 28  HYPERLINK \l "_Toc240266164" Consideration and gifts  PAGEREF _Toc240266164 \h 28  HYPERLINK \l "_Toc240266165" Past Consideration  PAGEREF _Toc240266165 \h 28  HYPERLINK \l "_Toc240266166" Mutual Promises (i.e., Consideration continued)  PAGEREF _Toc240266166 \h 29  HYPERLINK \l "_Toc240266167" Great Northern Railway Company v. Witham (Mutual promises, framework agreements)  PAGEREF _Toc240266167 \h 29  HYPERLINK \l "_Toc240266168" Wood v. Lucy, Lady Duff-Gordon (implied obligations)  PAGEREF _Toc240266168 \h 29  HYPERLINK \l "_Toc240266169" Firm Offers and Unilateral Contracts  PAGEREF _Toc240266169 \h 30  HYPERLINK \l "_Toc240266170" Introductory Comments (Read!)  PAGEREF _Toc240266170 \h 30  HYPERLINK \l "_Toc240266171" Dawson v. Helicopter Exploration Co Ltd (unilateral vs bilateral contract)  PAGEREF _Toc240266171 \h 31  HYPERLINK \l "_Toc240266172" Can offer be revoked when performance on a unilateral contract has commenced?  PAGEREF _Toc240266172 \h 31  HYPERLINK \l "_Toc240266173" Going Transaction Adjustments (GTAs)  PAGEREF _Toc240266173 \h 32  HYPERLINK \l "_Toc240266174" Policy considerations justifying GTAs:  PAGEREF _Toc240266174 \h 32  HYPERLINK \l "_Toc240266175" Harris v. Watson (old case. either an unreasonable application of the doctrine of consideration or a holding that legal GTA not found if modification made under duress)  PAGEREF _Toc240266175 \h 32  HYPERLINK \l "_Toc240266176" Stilk v. Myrick (old case. strict application of the doctrine of consideration, concerns about duress found in a GTA)  PAGEREF _Toc240266176 \h 32  HYPERLINK \l "_Toc240266177" Raggow v. Scougall (Rescission and creation of new contract to validate a GTA. finding of a GTA by holding that old contract was voided by the mutual acceptance of the GTA. New contract is in place with new terms. This gets around the problem of fresh consideration, one way of doing it)  PAGEREF _Toc240266177 \h 33  HYPERLINK \l "_Toc240266178" Stott v. Merit Investment Corporation (Finding of a valid GTA when there is forbearance on the right to sue)  PAGEREF _Toc240266178 \h 33  HYPERLINK \l "_Toc240266179" DCB v. Zellers (cases without any legal merit cannot rely on forbearance)  PAGEREF _Toc240266179 \h 34  HYPERLINK \l "_Toc240266180" Gilbert Steel Ltd. v. University Construction Ltd. (estoppel cannot be used as a sword, only as shield)  PAGEREF _Toc240266180 \h 34  HYPERLINK \l "_Toc240266181" Williams v. Roffey Bros and Nicholls (Contractors) Ltd. (UK Case: GTA may be found when a practical advantage is found to be the consideration)  PAGEREF _Toc240266181 \h 35  HYPERLINK \l "_Toc240266182" Pao On v. Lau Yiu Long (Economic duress or fraud, if found, GTA will be unenforceable)  PAGEREF _Toc240266182 \h 35  HYPERLINK \l "_Toc240266183" Foakes v Beer (Debt settlement. Payment of a lesser sum for a greater sum is not good consideration [but there is an exception])  PAGEREF _Toc240266183 \h 35  HYPERLINK \l "_Toc240266184" NAV Canada v. Greater Fredericton Airport Authority (NBCA finds that K modification unsupported by consideration is binding provided there is no economic duress. IMPORTANT case because it will be found in counter arguments)  PAGEREF _Toc240266184 \h 36  HYPERLINK \l "_Toc240266185" Step by step how to approach a GTA issue:  PAGEREF _Toc240266185 \h 36  HYPERLINK \l "_Toc240266186" Reliance as a basis for the enforcement of promises (Promissory Estoppel)  PAGEREF _Toc240266186 \h 36  HYPERLINK \l "_Toc240266187" Difference between estoppel and promissory estoppel  PAGEREF _Toc240266187 \h 37  HYPERLINK \l "_Toc240266188" Elements of promissory estoppel  PAGEREF _Toc240266188 \h 37  HYPERLINK \l "_Toc240266189" Central London Property Trust Ltd v. High Trees House Ltd (application of promissory estoppel as a shield)  PAGEREF _Toc240266189 \h 37  HYPERLINK \l "_Toc240266190" Combe v Combe (gratuitous promise means no consideration and no contract even if relied upon)  PAGEREF _Toc240266190 \h 38  HYPERLINK \l "_Toc240266191" Criticisms of the sword/shield distinction in estoppel  PAGEREF _Toc240266191 \h 38  HYPERLINK \l "_Toc240266192" United States  PAGEREF _Toc240266192 \h 38  HYPERLINK \l "_Toc240266193" Arbitrariness of the sword/shield distinction  PAGEREF _Toc240266193 \h 38  HYPERLINK \l "_Toc240266194" What is reasonable reliance?  PAGEREF _Toc240266194 \h 38  HYPERLINK \l "_Toc240266195" Third Party Beneficiaries and Privity of Contract  PAGEREF _Toc240266195 \h 39  HYPERLINK \l "_Toc240266196" Background  PAGEREF _Toc240266196 \h 39  HYPERLINK \l "_Toc240266197" Avoidance of contractual box  PAGEREF _Toc240266197 \h 39  HYPERLINK \l "_Toc240266198" The Problem with Privity of K as applied to insurance contracts and the resultant case law  PAGEREF _Toc240266198 \h 40  HYPERLINK \l "_Toc240266199" London Drugs v. Kuehne & Nagel (employees may benefit from exclusion clause in lease btwn Landlord and Tenant business)  PAGEREF _Toc240266199 \h 40  HYPERLINK \l "_Toc240266200" Laing Property Corp v. All Seasons Display (application and development of London Drugs)  PAGEREF _Toc240266200 \h 41  HYPERLINK \l "_Toc240266201" Remaining problems: Fate of employees  PAGEREF _Toc240266201 \h 41  HYPERLINK \l "_Toc240266202" Fraser River Pile & Dredge v. Can-Dive Services (3P insurance benefits arent just for Ks of service)  PAGEREF _Toc240266202 \h 41  HYPERLINK \l "_Toc240266203" But note: this concept doesnt just apply to insurance contracts. It could apply to any case where there is indemnity, exclusion of liability, etc.  PAGEREF _Toc240266203 \h 42  HYPERLINK \l "_Toc240266204" Horizontal and Vertical Privity  PAGEREF _Toc240266204 \h 42  HYPERLINK \l "_Toc240266205" Representations and Warranties  PAGEREF _Toc240266205 \h 42  HYPERLINK \l "_Toc240266206" Representations and Warranties table and definitions  PAGEREF _Toc240266206 \h 42  HYPERLINK \l "_Toc240266207" Policy considerations:  PAGEREF _Toc240266207 \h 45  HYPERLINK \l "_Toc240266208" So if you found a misrepresentation? Head over to the parol evidence rule and discuss that  PAGEREF _Toc240266208 \h 45  HYPERLINK \l "_Toc240266209" Concurrent Liability in Contract and Tort: Negligent Misrepresentation  PAGEREF _Toc240266209 \h 45  HYPERLINK \l "_Toc240266210" Esso Petroleum Co v. Mardon (concurrent liability in K and tort)  PAGEREF _Toc240266210 \h 45  HYPERLINK \l "_Toc240266211" Other essential comments about concurrent liability in K and Tort  PAGEREF _Toc240266211 \h 46  HYPERLINK \l "_Toc240266212" Concurrency (pros/cons of suing in tort/contract)  PAGEREF _Toc240266212 \h 46  HYPERLINK \l "_Toc240266213" Mistake  PAGEREF _Toc240266213 \h 47  HYPERLINK \l "_Toc240266214" Categories of Mistake  PAGEREF _Toc240266214 \h 47  HYPERLINK \l "_Toc240266215" Mistake in Formation  PAGEREF _Toc240266215 \h 48  HYPERLINK \l "_Toc240266216" Intro with test and policy factor comments  PAGEREF _Toc240266216 \h 48  HYPERLINK \l "_Toc240266217" Raffles v. Wichelhaus (mistake. Outdated concept of consensus ad idem)  PAGEREF _Toc240266217 \h 48  HYPERLINK \l "_Toc240266218" Hobbs v. Esquimalt and Nanaimo Railway co (objective reasonable person test for finding of mistake in formation)  PAGEREF _Toc240266218 \h 49  HYPERLINK \l "_Toc240266219" Rectification (the test)  PAGEREF _Toc240266219 \h 49  HYPERLINK \l "_Toc240266220" Mistaken Payments  PAGEREF _Toc240266220 \h 50  HYPERLINK \l "_Toc240266221" Budai v. Ontario Lottery Corp (reliance on mistaken payment)  PAGEREF _Toc240266221 \h 50  HYPERLINK \l "_Toc240266222" Mistaken Assumptions  PAGEREF _Toc240266222 \h 50  HYPERLINK \l "_Toc240266223" Introduction  PAGEREF _Toc240266223 \h 51  HYPERLINK \l "_Toc240266224" Sherwood v. Walker (mistaken assumption regarding nature of subject matter)  PAGEREF _Toc240266224 \h 51  HYPERLINK \l "_Toc240266225" Bell v. Lever Brothers Ltd (Mistaken assumption regarding essential quality)  PAGEREF _Toc240266225 \h 51  HYPERLINK \l "_Toc240266226" Solle v. Butcher (Equitable jurisdiction/relief of mistaken assumption. Read this as it might be applicable whenever mistaken assumption is found)  PAGEREF _Toc240266226 \h 52  HYPERLINK \l "_Toc240266227" Examples where equitable jurisdiction might be used:  PAGEREF _Toc240266227 \h 53  HYPERLINK \l "_Toc240266228" Frustration  PAGEREF _Toc240266228 \h 53  HYPERLINK \l "_Toc240266229" Krell v. Henry (frustration of commercial purpose of contract, test for frustration)  PAGEREF _Toc240266229 \h 54  HYPERLINK \l "_Toc240266230" ALCOA (Magnitude of risk unforeseen, reformation)  PAGEREF _Toc240266230 \h 54  HYPERLINK \l "_Toc240266231" Re Westinghouse Electric Corp (Mere fact that K becomes expensive is not sufficient)  PAGEREF _Toc240266231 \h 54  HYPERLINK \l "_Toc240266232" Amalgamated Investment v. John Walker (difficulty of finding frustration in land contract)  PAGEREF _Toc240266232 \h 55  HYPERLINK \l "_Toc240266233" KBK No. 138 Ventures Ltd. v. Canada Safeway Ltd (Canadian case, finding frustration in land contract when unforeseen fundamental change in land occurs. Use this case as the test for frustration)  PAGEREF _Toc240266233 \h 55  HYPERLINK \l "_Toc240266234" Remedies for frustration and the Frustrated Contract Act  PAGEREF _Toc240266234 \h 56  HYPERLINK \l "_Toc240266235" Control of Contract Power  PAGEREF _Toc240266235 \h 56  HYPERLINK \l "_Toc240266236" Mensch  PAGEREF _Toc240266236 \h 57  HYPERLINK \l "_Toc240266237" The chain of gifts  PAGEREF _Toc240266237 \h 57  HYPERLINK \l "_Toc240266238" Contract Interpretation  PAGEREF _Toc240266238 \h 58  HYPERLINK \l "_Toc240266239" Renner, The Institutions of Private Law  PAGEREF _Toc240266239 \h 59  HYPERLINK \l "_Toc240266240" Federal Commerce & Navigation Co. v. Tradax Export SA (the importance of consistency in standard form contracts)  PAGEREF _Toc240266240 \h 59  HYPERLINK \l "_Toc240266241" Scott v. Wawanesa (the problem with strict enforcement of standard form contracts)  PAGEREF _Toc240266241 \h 60  HYPERLINK \l "_Toc240266242" Techniques of Control SEE THIS IF NEGLIGENCE ISSUE  PAGEREF _Toc240266242 \h 61  HYPERLINK \l "_Toc240266243" The Parol Evidence Rule  PAGEREF _Toc240266243 \h 61  HYPERLINK \l "_Toc240266244" Bauer v. Bank of Montreal (SCC) -- collateral agreement that contradicts the written agreement is inadmissible due to the parol evidence rule.  PAGEREF _Toc240266244 \h 63  HYPERLINK \l "_Toc240266245" The way courts get around Bauer:  PAGEREF _Toc240266245 \h 63  HYPERLINK \l "_Toc240266246" Gallen v. Allstate Grain Co. This will occur when the contradictory oral evidence is unequivocal. The court may state that reliance on the oral representation was reasonable, and that the oral representation did not contradict the contract, but merely added or varied the written terms.  PAGEREF _Toc240266246 \h 63  HYPERLINK \l "_Toc240266247" Zippy Print Enterprises v. Pawliuk (an example of somewhat sophisticated commercial parties not having to rely on the strict wording of the contract, parol evidence rule not applying to a specific representation)  PAGEREF _Toc240266247 \h 63  HYPERLINK \l "_Toc240266248" Bank of Nova Scotia v. Zackheim (Ontario case, unlike the others) PER excluded evidence of oral innocent misrepresentations that contradicted the written terms of a guarantee.  PAGEREF _Toc240266248 \h 63  HYPERLINK \l "_Toc240266249" Factors Influencing Application of PER (read this for the test):  PAGEREF _Toc240266249 \h 64  HYPERLINK \l "_Toc240266250" Standard Form Contracts  PAGEREF _Toc240266250 \h 64  HYPERLINK \l "_Toc240266251" Advantages  PAGEREF _Toc240266251 \h 64  HYPERLINK \l "_Toc240266252" Disadvantages  PAGEREF _Toc240266252 \h 65  HYPERLINK \l "_Toc240266253" The Ticket Cases  PAGEREF _Toc240266253 \h 65  HYPERLINK \l "_Toc240266254" Parker v. South Eastern Railway (party is bound to unsigned agreement with reasonable notice, test to employ)  PAGEREF _Toc240266254 \h 66  HYPERLINK \l "_Toc240266255" J Spurling v. Bradshaw (Lord Denning, the more unreasonable the clause, the greater the notice required. The red hand rule)  PAGEREF _Toc240266255 \h 67  HYPERLINK \l "_Toc240266256" Thornton v. Shoe Lane Parking (application of Lord Dennings red hand rule, unreasonable condition in a ticket)  PAGEREF _Toc240266256 \h 67  HYPERLINK \l "_Toc240266257" Interfoto (Thornton/reasonable notice doctrine applies to clauses generally, not just exemption clauses)  PAGEREF _Toc240266257 \h 68  HYPERLINK \l "_Toc240266258" Signed Contracts and Fundamental Breach  PAGEREF _Toc240266258 \h 68  HYPERLINK \l "_Toc240266259" Canadian Approach to Fundamental Breach  PAGEREF _Toc240266259 \h 69  HYPERLINK \l "_Toc240266260" Hunter Engineering Co. Inv v. Syncrude Canada Ltd. (doctrine of fundamental breach is a rule of construction only, better to use unconscionability, sophisticated commercial parties arent subject to it, perhaps consumers though)  PAGEREF _Toc240266260 \h 69  HYPERLINK \l "_Toc240266261" A Possible Exception Exclusion Clauses Continued  PAGEREF _Toc240266261 \h 70  HYPERLINK \l "_Toc240266262" Tilden v. Clendenning (application of Llewellyns Solution? Signature rule no longer in effect? The importance of taking reasonable steps to bring unusual terms to consumers attention)  PAGEREF _Toc240266262 \h 71  HYPERLINK \l "_Toc240266263" With signed waivers for risky activities: in the absence of unconscionability, fraud, misrepresentation, the traditional rule I that signature is a manifestation of assent: Delaney v. Cascade River Holidays (BCCA, 1981)  PAGEREF _Toc240266263 \h 73  HYPERLINK \l "_Toc240266264" Ochoa v. Canadian Mountain Holidays  PAGEREF _Toc240266264 \h 73  HYPERLINK \l "_Toc240266265" Karroll v. Silver Star (circumstance when a waiver of liability is accepted [use this case for the relevant law], agency exception to privity rule)  PAGEREF _Toc240266265 \h 73  HYPERLINK \l "_Toc240266266" Note: Where signature rule has been overruled tends to usually be, common thread of inequality of bargaining power, particular in consumer context and particularly with standard form contracts  PAGEREF _Toc240266266 \h 75  HYPERLINK \l "_Toc240266267" Ecommerce and control of contractual power  PAGEREF _Toc240266267 \h 75  HYPERLINK \l "_Toc240266268" Econtract enforceability  PAGEREF _Toc240266268 \h 75  HYPERLINK \l "_Toc240266269" General rules of contract law apply to ecommerce  PAGEREF _Toc240266269 \h 75  HYPERLINK \l "_Toc240266270" Shrink wrap contracts  PAGEREF _Toc240266270 \h 75  HYPERLINK \l "_Toc240266271" Click-wrap contracts  PAGEREF _Toc240266271 \h 76  HYPERLINK \l "_Toc240266272" Browse-wrap  PAGEREF _Toc240266272 \h 76  HYPERLINK \l "_Toc240266273" Kantiz v. Rogers Cable Inc (enforceability of arbitration clause where notice of contract changes given on a website)  PAGEREF _Toc240266273 \h 76  HYPERLINK \l "_Toc240266274" Comments on arbitration clauses:  PAGEREF _Toc240266274 \h 77  HYPERLINK \l "_Toc240266275" Introduction to three contractual doctrines that regard fairness of bargain  PAGEREF _Toc240266275 \h 77  HYPERLINK \l "_Toc240266276" If you talk about any one of these in exam, you must discuss all three  PAGEREF _Toc240266276 \h 77  HYPERLINK \l "_Toc240266277" Duress  PAGEREF _Toc240266277 \h 78  HYPERLINK \l "_Toc240266278" Economic duress  PAGEREF _Toc240266278 \h 78  HYPERLINK \l "_Toc240266279" Pao On (the test for economic duress, accepted by Canadian courts)  PAGEREF _Toc240266279 \h 78  HYPERLINK \l "_Toc240266280" Gotaverken Energy Systems (Canadian example of the Pao On case)  PAGEREF _Toc240266280 \h 79  HYPERLINK \l "_Toc240266281" Stott v. Merit Investments (a contract made under duress can be ratified and made enforceable)  PAGEREF _Toc240266281 \h 79  HYPERLINK \l "_Toc240266282" Undue Influence  PAGEREF _Toc240266282 \h 80  HYPERLINK \l "_Toc240266283" Categories of undue influence:  PAGEREF _Toc240266283 \h 80  HYPERLINK \l "_Toc240266284" Bank of Montreal v. Duguid (ONCA. Constructive notice of undue influence. The duty of a bank to find and avoid undue influence)  PAGEREF _Toc240266284 \h 81  HYPERLINK \l "_Toc240266285" Unconscionability  PAGEREF _Toc240266285 \h 82  HYPERLINK \l "_Toc240266286" The basic test per Morrison v. Coast Finance (BCCA, 1965) with factors applied from other cases:  PAGEREF _Toc240266286 \h 82  HYPERLINK \l "_Toc240266287" Unconscionability Private versus Public grounds  PAGEREF _Toc240266287 \h 83  HYPERLINK \l "_Toc240266288" Henningsen v. Bloomfield Motors (American case. Contextual analysis to finding inequality of bargaining power)  PAGEREF _Toc240266288 \h 83  HYPERLINK \l "_Toc240266289" Consumer Protection Legislation (IMPORTANT if a question regards a consumer transaction)  PAGEREF _Toc240266289 \h 84  HYPERLINK \l "_Toc240266290" Business Practices and Consumer Protection Act  PAGEREF _Toc240266290 \h 84  HYPERLINK \l "_Toc240266291" Rushak v. Henneken (BCCA: Duty for suppliers to disclose when they have specific negative information that may or may not be accurate about the product)  PAGEREF _Toc240266291 \h 85  HYPERLINK \l "_Toc240266292" Illegality  PAGEREF _Toc240266292 \h 85  HYPERLINK \l "_Toc240266293" Quick note on penalties and forfeitures  PAGEREF _Toc240266293 \h 85  HYPERLINK \l "_Toc240266294" Illegality  PAGEREF _Toc240266294 \h 86  HYPERLINK \l "_Toc240266295" Common law illegality:  PAGEREF _Toc240266295 \h 86  HYPERLINK \l "_Toc240266296" Statutory Illegality:  PAGEREF _Toc240266296 \h 87  HYPERLINK \l "_Toc240266297" Framework/strategies for certain question types (START HERE):  PAGEREF _Toc240266297 \h 87  HYPERLINK \l "_Toc240266298" Employment law, wrongful dismissal, constructive or direct  PAGEREF _Toc240266298 \h 87  HYPERLINK \l "_Toc240266299" Injunctions in employment contracts  PAGEREF _Toc240266299 \h 88  HYPERLINK \l "_Toc240266300" Breach of contract resulting in a potential damage claim (including non-pecuniary damages)  PAGEREF _Toc240266300 \h 89  HYPERLINK \l "_Toc240266301" Is there a binding contract (focus on relational contracts)?  PAGEREF _Toc240266301 \h 91  HYPERLINK \l "_Toc240266302" Is there a binding contract (focus on gifts)?  PAGEREF _Toc240266302 \h 92  HYPERLINK \l "_Toc240266303" Is there a binding contract?  PAGEREF _Toc240266303 \h 93  Remedies for Breach of Contract Damages The Three Categories of Damages Courts primarily award damages, but may award equitable remedies such as specific performance or an injunction Restitution: corrective justice, prevents unjust enrichment to def., i.e., prevention of gain to def., (if I agree to buy something for $80 and def. gives me nothing, def. was unjustly enriched by $80 and I could receive that in restitution) Reliance: restorative justice, prevent harm to victim, recovery of costs plaintiff might have incurred as a result of relying on the contract (cost of title search for instance, etc). judge would award restitution damages + reliance damages = good a position as before the contract was entered Expectation: distributive justice, secure benefit of contract to victim, either award specific performance, or the monetary value of the specific performance (e.g., amount of profit that would have been earned after buying a house that increased in value). In this case, expectation (expected profit) + reliance damages = making the plaintiff whole Reasons for Expectation Damages: Psychological expectation: sense of moral injury if someone breaks a promise Will theory: consent to contract creates some sort of private law btw the parties K creates a law btw the 2 parties, it is for the courts to enforce that law Economic explanation: K is property; once K is made, there is a proprietary/econ int in the promise w/respect to future entitlements; K w/respect to future entitlements has some sort of present value Juristic explanation: Expectation damages are the norm b/c of judicial policy that expectation measure promote a particular ordering of the world C + D = value exists b/c law protects it and expectancy exists b/c of recognition of future value Nominal Damages: damages awarded where there is not material loss experienced The Compensation Principle Peevyhouse v. Garland (diminution in value, essential vs. incidental, deterrence against windfalls) Facts: Plaintiff Peevyhouse (farmers, owner of land, lessor) Defendant Garland (Coal mining company, lessee of land) Def. leases land from Plaintiff for coal mining. Agrees to restore excavated land to its original state after use. Fails to carry out this part of the contract. At the same time, market value of land falls considerably. Cost of remediation far exceeds what Plaintiff would receive for remediated land on the open market. Holding: Plaintiff only entitled to receive full market value of the land as if it were remediated. Thus, plaintiff receives damage award that is a fraction of the true cost of remediation. Reasons: Diminution in value, cost of performance (remediation) out of proportion to value gained. Belief that this would result in a windfall for plaintiff who would take the money and not remediate the land. Also the remediation clause was only incidental to the contract in courts view, was not essential that the remediation be performed. What this case stands for: Courts do not want to grant windfall damages in commercial contracts. Victim of contract breach should only receive what he needs to be whole as if the contract were performed. Unfair on its surface, but the fact is that if Garland remediated the land, market value of land would not have changed that much. IMPORTANT DISSENT: What about Garland being unjustly enriched? Wasnt reclamation essential to the contract? If it was, then Garland should have paid the cost regardless. Radford v. De Froberville (essential vs. incidental, damages vs. equitable remedies, unjust enrichment) Facts: Plaintiff: Radford, seller of a portion of his land Defendant: De Froberville, purchaser of land Def. agreed to build an expensive stone wall between the land he purchased and the plaintiffs as part of the contract. Defendant failed to do so. Def. argued that Plaintiff entitled to nominal damages only as wall would not have increased market value of land that much. Or, Def. should only have to build a cheaper wooden fence. Holding: Defendant liable for the cost of building the wall. Reasons: Court found that agreeing to build the expensive stone wall was an essential element of the contract. For instance, Plaintiff agreed to take a discount on sale price on the basis that Def. would build this stone wall. Allowing the def. to build a cheaper wall would constitute unjust enrichment. What this case stands for: Essential vs. Incidental distinction. If essential to the contract, one can demand full compensation for non performance even if wont result in market value increase. Damages awarded instead of specific performance court doesnt want to supervise the building of a fence. Purpose of contract psychic satisfaction? Ruxley Electronics and Construction Ltd. v. Forsyth (economic waste, introduction of non-pecuniary damages, consumer surplus) Facts: Forsyth: Defendant, owner of property Ruxley: Contractor, hired by Def. Pltf. contracted to build pool for Def. Pltf. fails to build it to exact specifications (wasnt deep enough) but the difference is inmaterial. Def. refuses to pay anything and demands pool be completely redone. Holding: Pltf. entitled to value of his work less a nominal deduction for loss of a pleasurable amenity. Reasons: Contract was substantially performed. Court recognizes that not building it to exact specification was a intangible loss of amenity and granted a small monetary award. Court did not believe def. would rebuild an entire pool chance of unjust enrichment was great. What this case stands for: Courts do not advocate economic waste. E.g., courts didnt think the pool should be ripped up for this minor issue high chance def. wouldnt have done it and would have been unjustly enriched. Still entitled to something compensation for consumer surplus (personal subjective value). Value to customer less market value equals consumer surplus. Victory Motors Ltd. v. Bayda (supply and demand and entitlement to expectation damages, precursor to mitigation) Facts: Victory Motors Ltd.: Plaintiff, tried to sell a car to Bayda Bayda: Defendant, purchaser of car Def, backs out of vehicle purchase. Pltf. demands expectation damages. Holding: Pltf. entitled to expectation damages Reasons: Supply and demand issue. Supply exceeded demand, so Pltf. was left with a car he could not sell. What this case stands for: Supply and demand. If supply exceeds demand, pltf may seek compensation because pltf will be left with something he couldnt sell. If demand exceeds supply, pltf should receive nothing since he can avoid the loss by selling to someone else (mitigation). Perhaps some award for reliance damages, but nothing else. Contract Law and Social Ordering Contract: a promise the law will enforce; private ordering; plan for future exchanges dec as to whether there is a contract or not will often be remedy-driven Executory: K for future performance Executed: performance of K obligations are complete Partially Executed: partial performance under a K LAW AND ECONOMICS Market principle: rational voluntary exchange based on perfect information produces the best outcome (maximizes social welfare) Contract law minimizes transaction costs by introducing certainty and facilitating exchange. Enter Contracts to: Contain opportunism in non-simultaneous exchanges minimize transaction costs (fill in gaps, consistent application of legal rules) allocate risks minimize opportunity costs (cost or value of the best foregone alternative use of a resource) Wieger critique: focus on efficiency obscures and validates inequality present in the system w/in the economic model there is no criteria for valuing different choices or types of exchange (all are treated the same) assume all indivs have autonomous, stable preferences, are motivated by self-int and act rationally choices appear as distinctions btw preferences need to look at the context in which people make choices (i.e. real or perceived constraints, role or respons to others, psychological motivations, etc.) notion of consent is a fiction consent and freedom of choice are ideological concepts paying attention to the context of inequality invariably complicates the general claim that voluntary exchange enhances individual welfare clear patterns of inequality in relationships justify legislative constraints that attempt to equalize the power relationship (e.g. health and safety legislation, labour codes, marriage, separation agreements, surrogacy arrangements) Other Aspects of the Compensation Principle Anglia Television Ltd. v. Reed (pre-contract expenditures, uncertain expectation damages) Facts: Anglia Television: Plaintiff, movie producer Reed: Defendant, prospective main character Pltf. incurs significant cost in preparing to produce a film. Pltf. then contracts with Def. to be the main character. At the last minute, Def. backs out. Pltf unable to find new main character in time, has to cancel film and lose a lot of money. Holding: Def. liable for pre-contract expenditures. Reasons: Pltf can claim pre-contract expenditures provided they were reasonably in the contemplation of the parties as likely to be wasted if the contract were broken. Pltf can claim either this, or expected profit, but not both. What this case stands for: If expectation damages are too speculative, pltf can claim wasted expenditure (i.e., reliance damages). This includes pre-contract expenditures that were reasonably foreseeable to defendant. PROVIDED that a contract is actually entered into. Incurring expense in hopes a contract will be entered into = no dice. Bowlay Logging v. Domtar Ltd. (reliance damages exceeding expectation damages) Facts: Bowlay Logging: Plaintiff, contracted to log Domtars land Domtar: Defendant, allowed logging of his land by pltf Dispute in contract arose, pltf sues and claims reliance damages since profits were uncertain Holding: Pltf only entitled to reliance damages that dont exceed expectation Reason: If pltf received all reliance damages, he would have received more money than what he expected even if contract were successfully performed. What this case stands for: Reliance damages cannot exceed expectation damages. E.g., if pltf expects $1,000 profit but spent $1,200 performing the contract, can only sue for $1,000 (not defendants fault that contract was unprofitable). Chaplin v. Hicks and Kinkel v. Hyman (chance of a profit is compensable) In Chaplin the plaintiff missed out on a chance she was entitled to receive to win a beauty pageant which would had resulted in monetary benefits. The court found that the loss of a chance is compensable. In Kinkel, the court found that the plaintiff had a ten percent chance of profiting if the contract had been carried through. Thus, as long as there is reasonable probability of the plaintiff realizing the profit, he is entitled to it. However, it is to be reduced by the expected percentage chance of profiting (in this case, it was reduced by 90%). Comment: There must be a measurable, reasonable chance of pltf realizing revenue Limits on the Award of Damages: Remoteness Hadley v. Baxendale (reasonable foreseeability of loss) Facts: Hadley: Plaintiff, owner of a mill Baxendale: Courier service Pltfs crank shaft breaks, causing all production to stop. Pltf orders new one, arranges for Def. to deliver it. Def. delivers later than expected. Pltf sues for loss of profit during that period. Holding: Def not liable for lost profits Reasons: Contract breaker is only liable for those losses that are reasonably foreseeable as arising from the contract break. This is the principle assumed, in the absence of the communication and acceptance of special circumstances not normally reasonably foreseeable. Wasnt reasonably foreseeable that the mill would stop production. What this case stands for: Very important case, creates the principle of reasonable foreseeability in contracts. Contract breaker only responsible for breaches that are arising naturally i.e., in the usual course of things, or in the reasonable contemplation of the parties in other words, losses that are reasonable foreseeable. A contract can stipulate special circumstances and force certain things to be in the reasonable contemplation of the parties. Usually the defendant would want to be paid extra to take on this liability. Mere communication of special circumstances is inadequate both parties must agree to them there are exceptions to this rule though (see below). Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. (application of reasonable foreseeability concept) Facts: Victoria Laundry: Plaintiff, launderer business owner buys boiler from defendant Newman Industries: Defendant, sells boiler to plaintiff Pltf buys boiler from Def. Pltf tells Def. that the boiler was needed ASAP. Def. is very late in delivering boiler. Pltf claims lost profit, including lost profit from lucrative contracts Holding: Def. must pay lost profit from ordinary business contracts. Lucrative contract profits were not reasonably foreseeable. Reasons: Def. knew pltf needed boiler ASAP, that boiler was essential to the business. Lost profits were therefore in reasonable contemplation of def. The lucrative contracts were not reasonably foreseeable however knowledge of them wasnt communicated for instance. What this case stands for: Application of the principles of Hadley v. Baxendale. In this case, a shipping delay did lead to an award for lost profits because the defendant was reasonably aware that these lost profits would result. Lucrative contracts were special circumstances that were not communicated or agreed to. Ordinary course of thing losses is what was compensable. Implied Acceptance of Special Circumstances acceptance of special circumstances might be found implied in a contract if communication of them is made beforehand and defendant still opts to enter contract. This depends on circumstances. E.g., in Cornwall Gravel the court considered how Purolator creates consumer expectations through its advertising. Also, court in Cornwall thinks the test for reasonable foreseeability is an objective (reasonable person) and not a subjective (what parties actually thought) test. General factors to consider in deciding whether damages are too remote Express Contractual Provisions this could limit liability (e.g., dry cleaners and their exclusion clauses) to a certain amount Degree of probability (what would ordinarily be expected in the circumstances?) Communication of special circumstances (then was it necessary to enter a special contract or can acceptance be assumed? Depends on fact situation) Defendants knowledge (compare a common carrier like Baxendale to the manufacturer in Victoria Laundry who knew the use and importance of the boiler) Nature of defendants business (does it have special expertise? Whats being offered to plaintiff?) Sophistication of parties (the more sophisticated the parties, the more likely foreseeability will be found. Again, compare Baxendale to Victoria Laundry) Ordinary allocation of risk (what are the ordinary marketplace expectations as to who assumes what level of risk? This should be reasonable def. not necessarily liable for exceptional losses pltf should have gotten insurance in that case) Proportionality (courts dont want to impose extensive liability for a breach of contract to provide an ordinary service at a low price (dry cleaning for instance)) General purpose of limiting damages through remoteness *unlike restitution and reliance damages, expectation damages have no built-in limits Damages are not limited to K price, you can claim for consequential damages. Rules of remoteness are a means of constraining expectation damages, where there are no express K provisions (e.g. standard form consumer Ks specify exclusion clauses limiting liability) RULE: Damages that are too remote are not recoverable. (Hadley v. Baxendale) General Policy: achieve fair balance btw the reasonable expectations of the promisee and the risk of unfair surprise to the D, if held responsible for an unexpected liability (constrain expectation damages) Factors to Consider In Deciding Whether Damages are Too Remote: (when applying objective test for remoteness crt will look at these in balancing reas expecs v. unfair surprise) Special Problems and Circumstances Jarvis v. Swans Tours Ltd (Contracts for pleasure, non-pecuniary damages) Facts: Jarvis: Plaintiff, lawyer who paid for a vacation offered by Def. Swans: Def. Organizer of Tour Def advertises a vacation tour that sounds very pleasurable. Pltf finds the vacation to be anything but pleasurable. Sues Holding: Def. must pay for cost of tour and for loss of enjoyment Reasons: This was a contract for pleasure. No financial damages, but the point of the contract was an enjoyable trip. It wasnt, so the defendant must pay What this case stands for: Courts generally do not like to award non-pecuniary damages in contracts because of the need to distinguish btwn contract and tort, and the fact that ppl shouldnt expect non-pecuniary damages in commercial trade. But in this case, this pigeon hole, since the contract was entirely about pleasure, the court saw that non-pecuniary damages make sense in this context. Arguably, these are special circumstances made foreseeable as found in Hadley v. Baxendale. Other note: This is not entirely new. See Ruxley. This is an example of being compensated for consumer surplus. Consumers value less market value = consumer surplus. Wilson v. Sooter Studios Ltd. (non-pecuniary damages for a peace of mind K) Facts: Wilson: Client plaintiff, ordered photographer services from Def Sooter: Def, provider of photography services Def provided extremely inadequate photography services for the plaintiffs wedding. Pltf demands cost to re-assemble wedding party. Holding: Pltf entitled to non-pecuniary damages but not to the cost of re-assembling the wedding. Reasons: Contract for pleasure/enjoyment, so non-pecuniary damages are foreseeable. Having to re-assemble wedding was not reasonably foreseeable. Also, chance of unjust enrichment is high. What this case stands for: Canadian case confirming whats stated in Jarvis. Judge notes: non-pecuniary damage awards are small in most cases unless there is aggravation or punitive damages required. Wharton v. Tom Harris Chevrolet Oldsmobile Ltd. (non-pecuniary damages, requirement of sensory experience discomfort) Facts: Wharton: Pltf purchaser of Cadillac Tom Harris: Def seller of Cadillac Pltf buys Cadillac with defective sound system (produces a very annoying buzzing sound making it unusable). Takes almost 3 years for Def to repair. Non-pecuniary damages are claimed Holding: Pltf is entitled to non-pecuniary damages Reasons: Implied warranty that sound system would work. Buzzing sound constituted compensable inconvenience and frustration What this case stands for: Whartons contracted wasnt directly for pleasure like a vacation or for enjoyment like wedding photos. But the court says if contract breach causes mental suffering due to a sensory experience (and not just general disappointment) then non-pecuniary damages are in order Three principles are established (This is the most recent case law and should be cited) a contract breaker is not in general liable for distress, etc, which the breach of contract may cause the rule is not absolute. Where a major or important part of the contract is to give pleasure, relaxation, peace of mind, damages will be awarded if the fruit of the contract is not provided. In cases not falling within peace of mind damages are recoverable for inconvenience and discomfort caused by the breach and the mental suffering directly related to the inconvenience and discomfort. BUT THE CAUSE must be A SENSORY EXPERIENCE as OPPOSED TO MERE DISAPPOINTMENT. The effects must be foreseeably suffered during a period when defects are discovered. Warrington v. Great-West Life Assurance Co. (contracts promising peace of mind, aggravated damages) Facts: Warrington: Plaintiff, the insured Great-West: Defendant, the insurer Pltf contracts chronic fatigue syndrome. Overwhelming evidence that this disease was legit. Despite this, insurer refuses to pay and waits until days before trial to change its mind. Holding: Pltf entitled both to mental distress damages and aggravated damages Reasons: Insurance contracts are supposed to provide insured with peace of mind. Insurer used hard nosed burdensome tactics that made pltf even more ill to try to get out of its obligations. What this case stands for: Contracts offering peace of mind, e.g., insurance contracts, can arise to non-pecuniary mental distress damages when def doesnt deliver on their promise. This case also introduces aggravated damages unreasonably disputing a claim and playing with the court system in that way may cause a judge to award damages for aggravation. See Fidler v. Sun life Assurance Co. of Canada for a case with comparable facts and a comparable outcome. This comes down to Hadley v. Baxendale were non-pecuniary damages reasonably foreseeable? They sure are when the contract is entirely based on securing peace of mind. Not necessarily so when the mental distress is incidental. The Test to Employ to Find Non-Pecuniary Damages Object of contract was to secure a psychological benefit this brings mental distress upon breach within the reasonable contemplation of the parties Degree of mental suffering was enough to warrant compensation The thin skull rule requires communication of special circumstances Aggravated Damages (dont use this term) and Employment Contracts at common law, employees terminated without cause are entitled to either reasonable notice or severance pay equivalent to what would have been received under reasonable notice as long as this is provided, at common law, non-pecuniary damages are not allowed. Cannot claim for the inconvenience and upsetting nature of being terminated if the employers conduct in terminating an employee is independently actionable then non-pecuniary damages may be awarded. What does independently actionable mean? In Honda Canada Inc. v. Keays the SCC developed this concept which is as follows: Aggravated damages are awarded when the employer breaches its duty of good faith in the manner of termination causing mental distress to the employee. For instance, fraud or defamation. Also, independently actionable requirement doesnt necessarily exist However, an independently actionable wrong is required to earn beyond the Wallace extension Also note: employees have to give reasonable notice (RBC Dominion v. Merrill Lynch) Wallace bump up is gone unless you were terminated in a particularly heavy handed way that made it take longer for you to find a job Punitive Damages similar to aggravated damages, but rarely awarded. Awarded when the conduct is highly reprehensible high-handed, malicious, arbitrary Action must be independently actionable wrong (IAW) separate from the main cause of action In Whiten v. Pilot Insurance, the insurer intentionally and purposely took steps to avoid paying compensation for the Whitens home that burnt down. Accused them of arson, knowing that the claim was baseless Pilots IAW was breach of its implied contractual obligation of good faith, this was separate from the main cause of action (failing to pay out under the insurance contract) Pilot had to pay $1,000,000 in punitive damages courts are wary however of awarding great sums. Usually restricted to less than $100,000 standard of appellate review: a reasonable jury, properly instructed could have concluded that an award in that amount, and no less, was rationally required to punish the defs conduct; insurance K is K for peace of mind, D breached its duty to act in good faith, thus punitive damages are warranted in this case Policy Framework for Punitive Damages (PD) Exceptionality: PD is an exception to the general rule of contracts. Must preserve the distinction between tort and contract after all. Thus, it is to be awarded only in rare circumstances where the defendant acts in a highly reprehensible manner Rationality: PD must be tied to one or more of the following: punishment, deterrence or denunciation Proportionality: PD must be proportionate to the circumstances of the case. Was the misconduct deliberate? What was defendants motive? Did defendant know it was wrong? Did defendant abuse its position or exploit a vulnerability of the plaintiff? What was the level of harm directed at plaintiff and what happened or could have happened because of it? This could increase the award of PD. If compensatory or criminal penalties would meet the policy objectives, then PD wont be awarded. Only award the smallest amount of PD necessary to accomplish the objective notwithstanding that courts must not give companies a license to engage in such bad conduct Limits of the Award of Damages: Mitigation General Notes on Mitigation basic premise is that plaintiff cannot recovery for costs that could have been reasonably avoided various rationales for it: for instance, thought to be unfair to make defendant liable for losses that plaintiff could have avoided because often, the defendant cant do anything about the plaintiffs inaction see Payzu Limited v. Saunders for instance. Defendant refused to deliver silk on time and at agreed discount price, so plaintiff sued for difference between contract price and market price. Court rejected this claim because plaintiff should have bought silk elsewhere and sold it (albeit at a reduced profit). For example, Retail price is $2.00 normal contract price is $1.50. But pltf could buy elsewhere at $1.75. Thus, pltf can only claim for $0.25 per unit, not $0.50. however, plaintiff can claim for additional reasonable costs incurred in trying to avoid a loss (cost of reselling) resultant from the contract breach if plaintiff completely avoids his loss (for instance, ends up selling a product for an even better price than under the breached contract), the plaintiff can only receive nominal damages also remember how supply/demand applies if too much supply, pltf might be unable to mitigate. Apeco of Canada v. Windmill tenant failed to take up commercial space, landlord rented to someone else. On its face, landlord mitigated, but other substitute space (which the new tenant might have used) was available so court found the loss unavoidable if pltf is entitled to specific performance, there is no obligation to mitigate damages. In substitution, sometimes the court will grant monetary damages that it deems are the equivalent of specific performance (see more about this in next unit). Occurs in the context of purchasing unique items Defense to failure to mitigate: Impecuniosity. If plaintiff cant afford to mitigate, the defendant might be on the hook for a greater amount. This is rare however and defendants are usually not expected to take on this risk one reason is that impecuniosity is seen as being too remote. Courts might grant leniency to non-commercial actors however. Remoteness is the key consideration POLICY CONSIDERATIONS: Sophistication of the parties: courts generally require parties (especially commercial actors) to maximize profit by making the best alternative K possible, even if that means continued dealing w/K-breaker (Payzu) unfair surprise: a D may be unfairly surprised if liability is imposed b/c the P has insufficient funds to mitigate its loss unjust enrichment: if one party can choose the date at which to assess damages, it can give that party an unfair advantage (Asamera) economic waste: choosing to perform a K instead of avoiding losses may result in economic waste (McGregor) Doctrine of Election: See White and Carter (Councils) Ltd. v. McGregor. Here McGregor states he doesnt want the city (plaintiff) to advertise on garbage bins after he enters a contract. City places ads on garbage bins anyway and sues for lost profits. Court allows the Citys claim. Thats because they were under an executory contract, a contract for future performance, vs an executed contract where performance of contractual obligations is complete (i.e., purchase of a good) When there is an executory contract and a breach is anticipated or a repudiation (you tell me you arent going to perform) the plaintiff has two options Accept the repudiation and immediately sue for damages. Contract is terminated in this case Disregard he repudiation and treat the contract as still in effect (which is what the City did in McGregor) Limitation on these two options: If plaintiff has no legitimate interest, financial or otherwise, in performing contract, plaintiff may not perform it Also, Canadian courts are reluctant to accept this principle. Seems to run contrary to principles of mitigation. A few cases are cited where a contractor enters the property even after being told the contract was repudiated one defense is that contractor didnt have permission to enter the property Date of Assessment of Damages at what time are damages to be measured? Generally, at the time of the breach (not literally courts will devise a reasonable time). E.g., when a contract for sale of goods fails, purchaser must go into market and mitigate at that time. Any additional losses at that point result from failure to mitigate, not because of the breach courts can grant pre-judgment interest and take into account inflation when granting a damage award to reflect the fact that the time of breach and the time of judgment can be great Asamera Oil Corp v. Sea Oil. Contract to loan shares to def. which def. failed to return on time. At time of breach, share price was $0.29. over the ensuing years, share price varied immensely and ended up at $21 at time of judgment. SCC found pltf had duty to mitigate by purchasing replacement shares, but did not award damages based on original share price based it on price of $6.50. rationale: given the unique situation with the shares, was unreasonable to expect plaintiff to purchase replacement shares at time of breach. The point courts have discretion to take into account special circumstances that make immediate mitigation unreasonable. Equitable Remedies General Comment on Equitable Remedies specific performance is rarely granted thats because of historical reasons (equity only supplements common law), ideological reasons (the idea of compelling people to do things is not favoured), practical reasons (damages are more convenient for plaintiffs who dont want to deal with hostile defendants), administrative reasons (difficult for courts to supervise), its adverse impact on mitigation (in that it allows pltf to avoid having to mitigate), and because of the hardship it can impose on defendants (shifts burden of mitigation on defendants) Requirements for an order of specific performance Unique goods: E.g., heirlooms and rare works of art. Many goods can fit under this category, basically, something one of a kind thats difficult to get a similar version of Land: However, with cookie cutter subdivisions, one is no longer guaranteed specific performance (see obiter remarks in Semelhago v. Paramadevan in the SCC) Special circumstances for relational contracts (agreements for an ongoing relship like a lease): Specific performance may be a preferred resolution in such circumstances particularly when monetary damages are too difficult to calculate. For instance, Sky Petroleum Ltd. v. VIP Petroleum Ltd. where the court granted an interim injunction ordering the defendant to sell gas at contract price until the issue was resolved at trial. Important exception Personal Services Contracts: Courts never order specific performance of personal services contracts, both independent contractor and employment contracts. Beware of positive covenants Injunctions and undue restraint on trade used to enforce negative covenants (clauses obligating a party not to do something) common example is a non-compete clause when a business is sold overly broad negative covenant clauses will be struck down as a restraint of trade or as unconscionable. For example, see Warner Bros v. Nelson where the clause said that the defendant could not work in any other kind of employment during the contract court found that too broad and restricted it to similar employment in the entertainment business special considerations in entertainment business: in Lumley v. Wagner court held that it would issue injunction to encourage or put pressure on one party to continue to work for the employer; found when employee promises not to work for another similar employer for the duration of the contract courts try to recognize and avoid enforcing negative covenants that are in reality positive obligations (which would amount to specific performance which courts never impose). Trend now is for courts to simply grant damages in these cases involving entertainment/sports rather than injunctions Formation of Contract Offer and Acceptance Test Applied courts use objective, not subjective test when determining if an offer has been presented, or if it was something else (invitation to treat) advertisements can be invitations to treat if clear, specific, and if the reasonable expectation coming out of the ad is an offer, and if the offeror would be unfairly surprised if it wasnt Termination of Offers express term (e.g., contract stipulates a fixed term when offer is open) lapse offer expires after reasonable period of time (what is reasonable depends on facts of the case). To avoid lapse, parties can create an option (like the option to purchase you are aware of). Options require consideration/deposits rejection/counter offer. If offeree rejects offer or counter offers, the original offer is dead Revocation general rule is that form of revocation must match that of the offer. But offers made with consideration or under seal cannot be revoked Acceptance of offer bilateral contract is the most common form e.g., one person promises to buy something, other person promises to sell something unilateral contracts are where acceptance is made through performance. E.g., reward for return of a lost item problem with unilateral contracts: what if offer is revoked once offeree has commenced, but not completed performance? Potential unjust enrichment if offeree came close to performance but had rug pulled from under him at last moment Communication of acceptance acceptance must be communicated offeror may stipulate method of acceptance silence may not indicate acceptance in most circumstances. Some unusual exceptions if parties prior dealings made silence a reasonable way to accept when method of acceptance is not stipulated, general rule is that it should match the mode of the offer Contracts made by mail (Postal Acceptance Rule) postal acceptance rule: contract is formed when offeree puts notice in mail box doctrinal rationale: post office is like the agent of the offeree and offers are immediately accepted when in the hands of an agent postal acceptance rule is not set in stone. Might not be used if rule would lead to unfair surprise or be contrary to reasonable expectations court might require offeror to inquire if no notice was received see Schiller v. Fisher parties stipulated that communication would occur as soon as possible. Therefore, when contract was initialed on the 1st, it was considered accepted on the 1st even though contract wasnt mailed until the 3rd and received on the 7th. Basically, saying to return the contract as soon as possible meant that the postal acceptance rule was no longer necessary initialing was sufficient to be the method of acceptance, and the defendant only had to mail it as soon as possible Where is a contract made? (Jurisdictional issues) postal acceptance rule contract is created where the acceptance is mailed faxes see Eastern Power contract was created in Italy where letter setting out terms of negotiation originated and where accepted reached the offeror general rule is the contract is created where acceptance is communicated, but courts do not strictly interpret this rule and will apply common sense Email contracts communication of acceptance can occur by clicking an icon (e.g., the I agree button) can also occur by email. Offeree is considered to have received it when they are in a position where they are capable of retrieving the email (normally this means after you click send), acceptance is complete when email is received by the server the computer program is considered the electronic agent Uncertainty in Formation of Contract (unenforceability of agreements to agree, incomplete agreements, or contracts with ambiguous or missing essential terms) Foley v. Classique Coaches (vagueness in price, arbitration clause, ongoing relationship) Facts: Foley: Plaintiff, seller of land, supplier of petrol to def Classique: Def. purchaser of land and petrol from Foley Def bought land from pltf at reduced price on condition that def buys petrol at a price to be agreed by the parties in writing and from time to time. Deal works fine for 3 years when def tries to back out claiming the contract was vague Holding: There is an enforceable contract and the def must pay Reasons: Ongoing relationship contract worked fine for 3 years. Petrol price wasnt completely indefinite as contract has allowance for arbitrator to determine price if parties cant agree. Petrol purchase agreement seemed attached to sale of land which was sold at discount on basis of def buying petrol from pltf. Implied term that petrol shall be supplied at reasonable price and reasonable quantity. What this case stands for: Willingness of courts to imply terms into contracts. Note that arbitration clause makes vagueness on price more certain. Courts will consider the degree to which the parties are/have committed to each other. Courtney and Fairbairn Ltd. v. Tolaini Brothers (Hotels) Ltd. (unenforceability of agreement to agree, one time (not ongoing) relationship) Facts: Courtney: Plaintiff, builder, supposed to build hotel for def Tolaini: Def, land owner, supposed to contract pltf to build hotel Def agrees to Pltf to have pltf build hotel on basis that they negotiate fair and reasonable contract sums. Pltf agrees to find financier for def. Pltf finds financier, but parties could not agree on price to build hotel. Holding: There was no valid contract and def. may back out. Reasons: no arbitration clause (implied), unenforceable agreement to agree, fundamental matter left vague so there was no contract, what if parties cant agree on price? What this case stands for: The basic principle that courts do not enforce vague/ambiguous agreements to agree. There must be some stronger degree of certainty past history of successful dealings in an ongoing contract, arbitration clause, etc. INTERESTING NOTE: Could pltf have sued for reliance damages in time/cost spent finding a financier for pltf? Unjust enrichment (missing out on finders fee)? Empress Towers Ltd. v. Bank of Nova Scotia (good faith) Facts: Empress: Landlord plaintiff Bank: Tenant defendant Lease states that its renewable at the market rental prevailing as mutually agreed and that if parties cannot agree, lease ends. Both parties agree on market rent per month but pltf wants additional $15,000. Def refuses Holding: Valid contract between parties at market rent without the additional payment Reasons: Bad faith pltf and def had already agreed on a market rent. Demanding more money after (on the last day as well) was bad faith landlord should not have unreasonably withheld agreement. What this case stands for: When a contract exists already, there is an implied duty to act in good faith. DISSENT felt that this ruling came too close to interfering in normally valid negotiations. This case is not cited widely. What if pltf rolled his demand into market rent? Probably would have gotten away with it. Other notes on good faith: no tort duty of care (good faith) in pre contract negotiations (Martel Building v. Canada (2000, SCC) for obvious reasons (not being able to posture would be absurd) when there is an existing contract, the matter of whether or not good faith is required is unclear and depends heavily on the facts (see Empress Towers) McKinlay Motors defendant purposely took steps to drag his feet in delivering supplies to pltf so that pltf would go out of business. Didnt breach contract, but court found def acted in bad faith and ordered damages paid no SCC case as of yet but more and more jurisdictions are recognizing an implied duty to act in good faith when a contract is made Policy Rationale for Legal formalities (e.g., consideration) Legal formalities Evidentiary function evidence of existence of contract Cautionary function ensure that parties deliberate before they contract Channeling function provide a simple and external test of enforceability of a promise (rules that everyone can learn easily and abide by) Policy benefits: prevent unjust enrichment and needless reliance cost, facilitate business, evidence/deliberation Examples of legal formalities Statute of Frauds and Consideration Statute of Frauds certain contracts (regarding land, cosigners) must be evidenced in writing limited exception in cosigning, when cosigner does an act that makes it appear an agreement exists. In land, when someone does something other party may reasonably rely upon which changed that parties position and would be inequitable in those cases, restitution or reliance damages may be awarded Consideration General Comments on Consideration the requirement that both parties must be offering a promise that has value of some kind to have a valid contract promise can be monetary (pay $100, transfer title to a house) or an action (painting a house) or another promise, or giving up of something meaningful (forbearance) if a contract is executed under seal (aka a deed) it is binding even if one side doesnt offer consideration. If I promised to give you $100 as a gift and made the promise under seal, the promise is binding if parties do not understand what seal means however, court may not enforce agreement. Courts want to see an intent to be bound broadly speaking, consideration need not be an exchange of commercially equal promises, but it must be set up in the form of an exchange Consideration and gifts Thomas v. Thomas: Agreement giving widow life interest in return for $1 per year and her promise to maintain the property. Found to be a binding contract. Rent was paid to executors, not landlord so a contract existed btwn widow and estate. Adequacy of consideration is irrelevant to courts. Other comment: Its a gift dressed up as a contract, still enforced. White v. Bluett: Son agrees to stop complaining provided Father forgive his debt. Father dies, estate sues Son. Sons contract with Father not binding. No evidence that contract exists. Judge says agreement to stop complaining is no consideration. Hamer v. Sidway: Nephew agrees to stop smoking, drinking, etc until hes 21 in return for $5,000 from his uncle. Binding contract found. Evidence of contract existed (letters, etc). Reliance was found (nephew gave up those activities). Promise of value for a promise of value. A promisor does not have to benefit from the contract. Past Consideration past consideration is no consideration. E.g., I paint your room for free then two months later come back and demand payment for services. No contract in this case. Consideration must be contemporaneous exception: if the past act was done at the request of the promisor (then its like a normal contract with a deferred payment). Then if promise says I will pay $20 its quantifying the legal obligation. Enforceable. other exception: when plaintiff performs act without parties agreeing on amount of payment at the time, court might imply obligation to pay (restitutionary relief) other exception: provision of medical services to unconscious or incompetent patients it is assumed they want the service even though they cannot communicate acceptance at the time. Restitutional remedy here Eastwood v. Kenyon executor plaintiff borrows money from estate to take care of infant daughter def. when def reaches full age, promises to repay money. Later backs out. Court says there is no contract and that the money borrowed from the estate was a gift Mutual Promises (i.e., Consideration continued) Mutual promises I promise to buy your house a month from now, you promise to sell your house a month from now are binding Promise cant be illusory I promise to pay you $1000 if you promise to take it no value in this promise. The promise must be to do something of value Great Northern Railway Company v. Witham (Mutual promises, framework agreements) Facts: GNRC Pltf, purchaser of supplies Witham Def., a supplier Pltf and def enter a framework agreement where def agrees to stand ready to accept orders for a defined period. Some orders are requested and filled. Pltf makes an order, def refuses to comply saying that there was no contract and no consideration. Holding: Framework agreement is not binding, but the pending orders were. Def had to fill those orders. Reasons: A form of a unilateral contract. And when one side has performed, the other is obliged to perform as well. York example If I say I will pay you $100 to go to York and you go and do so, I must pay you. Analogy is then if I will give you an order, you will supply it at contract price. Pltf gave order, thus, def had to fill it. What this case stands for: Framework agreements (agreements to stand ready to supply) are not binding without consideration or seal (transform into an enforceable option contract). But orders made within the framework agreement are binding and must be filled. (other comment: had pltf agreed that def would be exclusive supplier, that would have been consideration and made framework agreement binding in and of itself.) Wood v. Lucy, Lady Duff-Gordon (implied obligations) Facts: Wood pltf, agreed to market defs fashion label on clothing and split profits Lucy def fashion designer, agreed to have Wood be exclusive distributor of her name Pltf gains exclusive right to place defs endorsement on clothing to place her designs on sale, to license to others, and to market them in exchange for 50% of all revenues received. Def sells on her own, claims no contract because the pltf was no obliged to do anything. Holding: Def broke contract and is liable to pltf. Reasons: The contract did not obliged pltf to do anything. But court found that it was proper to imply an obligation on the pltf to use reasonable efforts to market the Defs goods. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman What this case stands for: Courts can imply obligations into contracts. Firm Offers and Unilateral Contracts Introductory Comments (Read!) open contracts can be made irrevocable when made under consideration or seal (then its like an option contract) firm offers (promise not to revoke) require seal or consideration. E.g., subject free real estate contract. Technically revocable, but made under seal so it is not problems arise when the time between offer is made and time of acceptance is long Example diff btwn unilateral and bilateral contract I will pay you $500 if you find my dog (unilateral, acceptance on performance. No binding obligation to find dog) I will find your dog. In exchange, you will pay me $500 (bilateral exchange of promises, contract is made upon acceptance of promises. Binding obligation to find the dog. technically, offeror can revoke right up to the minute before performance. But courts try to minimize chance for unfairness by considering the factor of reasonable reliance. For instance, in Carlill v. Carbolic Smoke Ball co. the advertisement was as such that the court found ppl could reasonably rely on the def carrying through its obligation. It was an offer to the world, and those who met its requirements essentially contracted with the def. Errington v Errington father gifted downpayment to home to son, agreed to pay property taxes. Said his son had to make mortgage payments and when mortgage was paid off, house would be his. Courts find this enforceable two contracts first, pay mortgage and house will be yours. Second implied contract, as long as you pay the mortgage you may remain in possession (an implied promise not to revoke contract #1) Dawson v. Helicopter Exploration Co Ltd (unilateral vs bilateral contract) Real life application of the dog example. Court found that contract was not unilateral as claimed by def (def claimed if you find the claims, we will pay you) but that it was bilateral btwn the parties (I will help you find claims. You will pay me for doing so). Enforceable contract. Can offer be revoked when performance on a unilateral contract has commenced? Depends on fact situation potentially revocable with proper notice. Ayerswood Development Corp v. Hydro One Networks (Ontario) def offered substantial subsidy to those who create energy efficient buildings by June 31. Pltf undertakes to build such a building to do so required significant time and development cost, but still files for subsidy as of June 30. However, just before that, def suddenly revoked its offer. Ontario court found that def could not revoke its offer once performance commenced (too much reasonable reliance by the time def revoked). Baughman v. Rampart Resources BC authority for the same above situation. once offeree has embarked on performance it is too late for the offeror to revoke his offer. Note: Once performance has begun, doesnt mean there is a contract just yet. It means the offeror cant revoke until the option period expires. Consideration and contract is still found only on performance. Going Transaction Adjustments (GTAs) Policy considerations justifying GTAs: Why to enforce modifications? Party autonomy, reliance, reasonable expectations and unjust enrichment. Recognition of commercial advantage of entering the GTA even if consideration doesnt exist prima facie. Why not to enforce modifications? Exploitation, ransom, fraud and economic duress (Harris) Harris v. Watson (old case. either an unreasonable application of the doctrine of consideration or a holding that legal GTA not found if modification made under duress) Facts: Plaintiff was a seaman aboard the defendants ship. When the ship was in danger, pltf sought increased salary in return for overtime pay. After ship came to dock, def refused to pay. Holding: Pltfs case was dismissed. Reasoning: Old rule of the sea when freight is lost, wages are lost too. Concern that seamen would always insist on extra wages when ship was in danger and potentially purposely put the ship in danger to gain these wages (no GTA when duress is found). What this case stands for: One could see this either as an unreasonably strict application of the doctrine of consideration, or an application of a policy concern no enforcement of contract modifications when made under duress. Note that future maritime cases change the law. Stilk v. Myrick (old case. strict application of the doctrine of consideration, concerns about duress found in a GTA) Facts: Virtually identical to Harris, except that the ship was not in danger. Ship crew was understaffed, captain (defendant) could not find more crew members so he offered to pay the existing crew (plaintiff) more for overtime. Holding: Plaintiffs claim dismissed. Reasoning: No consideration given by the pltfs for their increased wages. Ship was in a constructive emergency as it still had to make its way back to London. A promise to do what you are already contractually obliged to do is not good consideration. What this case stands for: Strict application of the doctrine of consideration. Court tries to construe this case as being one where there was an emergency and the def. was made to pay more under duress. Note that future maritime cases change the law. Raggow v. Scougall (Rescission and creation of new contract to validate a GTA. finding of a GTA by holding that old contract was voided by the mutual acceptance of the GTA. New contract is in place with new terms. This gets around the problem of fresh consideration, one way of doing it) Facts: Pltf agrees to take a pay cut from def. employer during war time so that business could continue. After war ends, pltf turns around and sues def. claiming the pay cut was made without consideration. Pltf claims no consideration for the promise to accept a pay cut so the new agreement was void. Holding: Plaintiffs claim dismissed. Reasoning: The parties entered into a new agreement in writing. While the new agreement did not expressly state as such, this had the effect of rescission again the old contract. What this case stands for: Find a GTA by claiming that there are two contracts, the new one annuls the old one. Other comment: Perhaps the defs agreement to stay in business was valid consideration? No need to make a finding of two contracts if thats the case. Comment: In an exam, look for words like Revised agreement, etc. This could point to a rescission and creation of new contract. Stott v. Merit Investment Corporation (Finding of a valid GTA when there is forbearance on the right to sue) Facts: Pltf was a broker working for def. Pltf becomes liable for $60k debt because of action by his supervisor. Pltf agrees to enter a settlement to pay the 60k debt over a certain time period in return for keeping his job. Pltf leaves company and now demands refund in full on the basis that the loss was the supervisors fault and not his own. Def. counterclaims for the balance of the debt. Holding: Pltfs claim fails. Defs counterclaim is successful. Reasoning: The def. had forbearance on the right to sue. Forbearance is good consideration if 1) reasonable claim 2) bona fide belief in claim and 3) no concealment of material facts. Pltf acknowledged in written settlement and in subsequent conduct (making payments) that the debt was valid. What this case stands for: Forbearance on the right to sue is good consideration. Forbearance on the right to sue means agreeing not to sue. If you sign a settlement agreement, you must pay in full even if you think their claim was lacking strong merit. This principle is in part premised on a desire to promote settlements and finality. Other comments: Could one say that the defs agreement to let pltf continue working was valid consideration? Could one say pltf was under economic duress when he agreed to the settlement (e.g., pay or get fired?). DCB v. Zellers (cases without any legal merit cannot rely on forbearance) (Note on forbearance. See DCB v. Zellers. Pltfs daughter stole from Zellers, merchandise returned unharmed. Zellers demanded $1,000, pltf paid $225 towards it then later sued to get it back. Court found forbearance was invalid argument as Zellers had no right whatsoever to demand $1,000 from pltf. Case was without any legal merit court strongly emphasized that the Zellers solicitor should have known this. I think this circumstance would be rare in that regard. Gilbert Steel Ltd. v. University Construction Ltd. (estoppel cannot be used as a sword, only as shield) Facts: Pltf agrees to sell steel to Def. Price settled. Steel mill notifies Pltf of pending price increase and that there may be future price increases. New written K with increased prices new price doesnt reflect entire increase. K for one year. Oral agreement to pay more. Pltf provides written K but not executed. Pltf provides steel but uncertain due to accounting errors if def. is paying increased price. When pltf finds out that def. isnt, demand for payment of balance is made and def. declines to pay increase. Holding: Pltfs claim fails. Reasoning: No valid consideration for oral contract. Cannot ask for more when you are already contractually obliged to provide it. Cannot rely on estoppel as basis for claim (that defs conduct clearly suggested that it had given its right up to cheaper prices and that pltf was supplying steel on basis that it was relying on its belief that there was a valid contract) as estoppel is valid only as a shield and not a sword. mere change in price not necessarily sufficient to find 2 contract rule per Raggow. What this case stands for: Estoppel cannot be used as a sword only a shield in Canada cannot be used as a cause of action. mere change in price not necessarily sufficient to find 2 contract rule per Raggow but price could be such a fundamental term that rescission must be found. Williams v. Roffey Bros and Nicholls (Contractors) Ltd. (UK Case: GTA may be found when a practical advantage is found to be the consideration) Facts: Def is contractor, pltf is subcontractor. Pltf agrees to provide services at a certain price. Work begins, pltf finds that contract price is too low and he will lose a lot of money. Def agrees to pay pltf more to complete job. Def later fails to pay increased sum. Holding: Pltfs claim is successful Reasoning: No economic duress found. Commercial advantage when a party undertakes to make a payment because doing so will give it an advantage arising out of the continuing relship with promise, new bargain will not fail for want of consideration. What this case stands for: A commercial advantage is sufficient consideration, provided no economic duress is found. Consider in real estate addendums that say for good and valuable consideration. Both parties are agreeing that there is value in the addendum. However, this is a UK case. Consider this case together with NAV Canada. Pao On v. Lau Yiu Long (Economic duress or fraud, if found, GTA will be unenforceable) Foakes v Beer (Debt settlement. Payment of a lesser sum for a greater sum is not good consideration [but there is an exception]) Common law rule: If you owe $200, you cannot make the other party agree that your payment of $100 will extinguish the debt. Exception: Enforceable if made under seal. Enforceable if expressly accepted by creditor in satisfaction of Law and Equity Act (a BC statute). Good idea as in real life sometimes collecting the entire debt is not possible. Better to settle, better for courts to permit settlements such as these. Exception of course is if made under economic duress or by fraud, but thats a separate issue. NAV Canada v. Greater Fredericton Airport Authority (NBCA finds that K modification unsupported by consideration is binding provided there is no economic duress. IMPORTANT case because it will be found in counter arguments) What this case stands for: Elimination of sword/shield distinction in New Brunswick, provided no economic duress. Comment: The practical effects of NAV Canada are similar to Roffey bros. Roffey is stated in positive terms in that it finds a commercial advantage in a GTA lacking traditional consideration. This case merely asserts that consideration is unnecessary when an existing contract is in place. Step by step how to approach a GTA issue: First say there was no consideration and so there was no valid GTA (Gilbert Steel) Then say we ripped up the contract and made a new one Then say we should adopt a flexible view of what consideration is roffey (roffey was about practical advantage not commercial advantage) Then try the nav canada case, no consideration unless duress (so bring up duress if needed, especially if def knew of a troubling financial situation) Then maybe argue reputation would be damaged so bad we dont need a legal response here Also ask if promissory estoppel may be involved here if theres reliance Then as last resort, if it fits in, could you say the contract was frustrated in the circumstances? Go through frustration test. Reliance as a basis for the enforcement of promises (Promissory Estoppel) Difference between estoppel and promissory estoppel What is promissory estoppel? Reliance is not consideration (doctrinally) Common law estoppel: A party is barred from denying or alleging a certain fact or state of facts because of the partys previous conduct and when someone has detrimentally relied on that represented. E.g., I was at the corner store last night. Cannot be used as a cause of action (sword and shield distinction) Promissory estoppel: Question of estoppel as to future conduct (ie, when a promise is made about future conduct). Also cannot be used to found a claim of action. If that were allowed, since reliance is not consideration, then consideration would no longer be needed to form a contract. E.g., I will sell you ten applies for $10 Elements of promissory estoppel existing legal relship (existing contract) a clear promise or representation intended to be relied upon (subjective). It could be oral and outside the contract, or it can be within a clause in the contract made with intention that it be relied upon reliance (see below for definition of reasonable reliance); and no compelling reasons to excuse person from representation (eg, duress) Central London Property Trust Ltd v. High Trees House Ltd (application of promissory estoppel as a shield) Facts: Pltf landlord agrees to accept reduced rent during WWII from def. After war, pltf demands full rent (reneges from his promise). Holding: Pltfs claim for full rent during the war period is dismissed. Reasons: A promise that is intended to be binding, intended to be acted upon and is in fact acted upon, is binding so far as its terms properly apply. What this case stands for: Sword and shield distinction remains. Courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making the promise from acting inconsistently with it. In that sense only, a promise gives rise to estoppel. Combe v Combe (gratuitous promise means no consideration and no contract even if relied upon) Facts: Divorce. Husband agrees to pay spousal maintenance of $1,100 annually. No payment. 7 years later, wife sues for arrears. Holding: Pltf wifes claim is dismissed. Reasons: Promise not enforceable. Promissory estoppel cannot be used to create new causes of action where none existed before. It only prevents a party from insisting on strict legal rights when it would be unjust, having regard to the dealings btwn the parties. What this case stands for: Doctrine of consideration still firmly in existence. Its a necessity to the formation of a contract, although not of its modification or discharge. Criticisms of the sword/shield distinction in estoppel United States Reliance may be used as a sword and shield. If used as a sword, no expectation damages, just reliance. Arbitrariness of the sword/shield distinction If defendant agrees to pay more, e.g., I will buy 10 apples for $20 instead of 10 apples for $10, consideration from pltf is required. Pltf cannot sue def for paying the full amount as that would be using estoppel as a sword and not a shield. If def agrees to accept less, e.g., I will buy 5 apples for $10 instead of 10 apples for $10, no consideration is required. If def. claims for 10 apples, pltf can use promissory estoppel as a defence. The point: To get around the sword/shield distinction, if supplier wants to get a higher price for his product, have the buyer agree to accept less for the same price and not the same quantity for a higher price. Arbitrary. What is reasonable reliance? Consider the following: nature of relship: past dealings, custom, understanding btwn parties type of transaction: commercial agreement where business ppl are likely to know that others will rely on their words, have the parties taken the time to put the promise in writing or to use other formalities? Was reliance foreseeable? Was it invited or requested by the promisor to what extent was or should the promisor have been aware of the reliance and its consequences? Unfair surprise Values/consequences: What are the consequences of liability or not liability: social utility of enforcing this type of promise Third Party Beneficiaries and Privity of Contract Background 3rd party (3P) has no rights under a K. 3P cannot enforce K. Even where purpose of K is to benefit 3P. Rationales Doctrinal rationale not a party. No consideration. 3P could prevent modification since 3P rights could be seen as crystallized. Economic encouragement of market based concepts, support nascent capitalism. Self reliance. Minimize liability. Avoidance of contractual box Trust, assignment and agency: categorize the 3P as beneficiary (trust) or assignee (assignment). More commonly, view B as agent for 3P so that 3P is in direct Ktual relship with A. Trust: B is trustee, C is beneficiary. C can now enforce terms of trust directly against B and 3Ps (eg A) whom B has contracted. Eg. 4P gives money to B on basis that they are trustee for 3P. B deposits money in bank. Even though K is with A (bank) and B, Susan can enforce K against A in her capacity as beneficiary. Assignment: B assigns rights of contract to 3P. 3P can now enforce K against A. Found often when creditors sell their debts to collection agencies. Agency: Principal grants authority to agent to act on his behalf. If agent enters into a contract with C, that person (C) can now enforce the contract directly against the principal. In this case, if agent is sued, agent can then look to principal for indemnification. OR, find a contract where one appears not to exist (Sperry Rand where the representation by the manufacturer created a warranty). Four criteria for agency to be found which would get the agent off the hook for personal liability (Scruttons Ltd. v. Midland Silicones Ltd) Negotiating parties must have intended that the 3P benefit from the K. Contracting party must also be contracting as agent of the 3P. Party that acted as agent for the 3P must have had the authority to do so. Must be consideration moving from the 3P to the non-agent party. The Problem with Privity of K as applied to insurance contracts and the resultant case law The problem: ABC insurance company grants policy to Landlord, Landlord leases property to tenant business. Insurance contract states that Landlord will not sue tenant if there is a fire (landlord already has insurance, no need for both landlord/tenant to get insurance), i.e., landlords subrogation rights are waived. However, tenants employees are not protected by this contract. Employee burns down building. Landlord cannot sue tenant. ABC subrogates landlord (takes its position) and sues the employees. Employees not protected by terms of lease and are personally liable for the loss of the building. (This is what happened in Greenwood, a case now distinguished into oblivion) Solutions: Employees should take out first party insurance before they work (not realistic). London Drugs v. Kuehne & Nagel (employees may benefit from exclusion clause in lease btwn Landlord and Tenant business) Facts: Employees negligently damage transformer being stored for pltf. Exclusion clause prevents pltf from suing business, so they sue employees directly. Holding: Claim dismissed. Reasons: Limitation of liability expressly or impliedly extends benefit to employee. If the employee is acting in the course of their employment and providing the very services provided in the contract when the loss occurs, the exclusive clause will apply to them. What this case stands for: Elimination of Greenwood situation, relaxation of doctrine of privity as applied to exclusion clauses. Laing Property Corp v. All Seasons Display (application and development of London Drugs) BCCA applies London Drugs: Limitation of liability clause must expressly or impliedly extend benefits to employees seeking to rely upon it BCCA expands on relevant factors to determine intention: Identify of interest btwn employer and employee as to performance of employers contractual obligation do employees have primary responsibility for performing services under K? King party would know that services under K would be performed by employee (objective test, reasonably foreseeable?) Services in question clearly performed by employees and tenant would have known this. Clear that parties intended for certain party to bear the risk. Allowing recovery against employees would allow the clear meaning of lease to be overturned Was the service that caused the loss one of the services that the lease contemplates will be performed by the employees? Remaining problems: Fate of employees Employer may have no insurance/limitation clause. No 3P benefits for employees if no insurance exists. Even if insurance/limitation clause, employer might not ensure that it extends to employees. Employer may decide not to have insurance extend to employees to save money. Employee options: ensure insurance coverage extends to employees ensure employee benefits from waiver of subrogation employee self-insures (not realistic) employee obtains indemnity from insurer Fraser River Pile & Dredge v. Can-Dive Services (3P insurance benefits arent just for Ks of service) Facts: Insurance K btwn insurer and boat owner. Boat sinks due to charterers negligence. Insurer sues charterer (the 3P). Claims London Drugs doesnt apply (it was in the context of services). Holding: Insurance companys claim dismissed. Reasons and what this case stands for: 1. Proof of intention that 3rd party charterer was to benefit from K. Insurance K referred to charterers. 2. Activities performed by 3rd party are the very activities contemplated as falling within scope of K chartering of boat. Charterer is off the hook. But note: this concept doesnt just apply to insurance contracts. It could apply to any case where there is indemnity, exclusion of liability, etc. Horizontal and Vertical Privity Vertical privity buyer within the distributive chain who did not buy directly from the defendant Manufacturer | Distributor | Retailer | Consumer Chain may be broken by bankruptcy, exemption clauses, limitation periods, absent seller. Found when buyer might want to sue manufacturer for defects in the product and bypass retailer/distributor. In many cases there will be a chain of liability instead of a direct action by plaintiff against manufacturer. Horizontal privity: Seller | Buyer User Relates to a person who is not a buyer within the distributive chain but who uses consumes or is affected by the product. The remedy is tort? Representations and Warranties Representations and Warranties table and definitions ClassificationRemedyInterest ProtectedMere puffNoneCaveat EmptorInnocent misrepresentationRescission** if K has yet to be completed. If K is already complete, no remedy (Redican) test belowRestitution (prevent unjust enrichment)Negligent misrepresentation (Tort, wont be found much at all on exam)Reliance damagesRelianceFraudulent Misrepresentation (Tort, wont be found much on exam)Rescission and reliance damagesRelianceWarranty*Expectation damagesReasonable expectationCondition*Repudiation and expectation damages (have to go to heart of K)Reasonable expectationInnominate term (Hong Kong Fir)Damages or repudiation depending on whether found to be warranty or condition)Reasonable expectation* Parties could agree to make all terms a condition or otherwise identify whats a warranty and whats a condition in a good contract. ** Terminate/rescission/repudiate often used interchangeably. But rescission is equitable remedy a court order. A party does not rescind. Repudiation is the partys right to terminate when theres a breach of K. Mere Puff: Legally meaningless statement used to encourage a purchase This cars a beauty. Doctrinally too vague. When might it be found? Is it part of an advertisement too? That might point to puffery. Representation: A statement of fact that may give rise to liability if found untrue (ie, misrepresentation). Innocent misrepresentation representation of fact that turns out to be false material induces the making of K, relied upon maker did not know correct facts policy concerns: caveat emptor v. unjust enrichment Examples: Redgrave v Hurd (rescission of K to buy house and law practice. Deposit returned since K was not complete, but no reliance damage for moving costs. Redican v. Nesbitt (contract executed. No rescission) Ennis v. Klassen (Contract for BMW. Misrep as to type discovered after 3 days. Court rescinds on basis that there is an implied term of reasonable expectation) Fraudulent/negligent misrepresentation See table Warranty: Representation thats elevated to term of K. If untrue, K is breached and expectation damages are awarded. Concept of collateral contract/warranty. K1 contract for sale of horse. K2 if you enter K1, I promise it is a racing horse. Unilateral K, performance of which is entering into K1. remedy is expectation damages. cases Heilbut Symons (purchase of shares in rubber company. Seller of stocks never says its a rubber company, investors trusted based on reputation of seller. Allocation of risk, investors should beware and do more due diligence. No warranty found) Dick Bentley (misleading statement about miles on engine. Court says statements are prima facie warranty if: Representation Made in course of dealings For the purpose of inducing other party to act (important issue) Induces entry into K (reliance) Reliance is reasonable (rebut this inference if can prove innocent misrepresentation) other comment: This gets rid of 2 contract approach) Murray v. Sperry Rand (statements that forage harvester would meet farmers needs. Manufacturer liable. One can be liable for breach of warranty even if there is no contractual relship to whom warranty is given. Collateral warranty found manufacturer promises that anyone who buyers our product from a retailer will get a product that has the qualities laid out in the advertisement. The buyer choosing to buy constitutes valid consideration for this unilateral contract.) Fraser-Reid (sale of new house. No drain tile. When a home hasnt been completed yet, implied warranty that it will be habitable. But when house is already complete, caveat emptor. House was already complete at time of sale. This argument fails. Homebuyer still gets compensated because of representation that seller has disclosed all outstanding building code infractions. Court said that builder knowingly breached the building code and so not putting in drain tile [an essential component of a home] is a breach of warranty) Condition: A term that goes to the root of the contract, the breach gives right to repudiate and expectation damages. Innominate term (Hong Kong Fir): Determination after the fact if a term was a warranty or a condition. In this case, term of K says ship should be shipworthy. What is shipworthy? Technically a missing light (easily replaced) breaches shipping regulations and isnt shipworthy until its fixed. Wide range of possible breaches, minor to major. Summary and policy consideration: Courts dont want to help ppl get out of bad deals. Policy considerations: Policy approach: protect reliance and reasonable expectations of one party while avoiding unfair surprise. Economic approach: Who should bear the risk that the representation is wrong? Who could have avoided the risk at the least cost? Remedial approach: Categorization is remedy driven. Justice is done btwn the parties by selecting the appropriate remedy. For example: Royalty rocker problem. Condition and entitled to profit? Or mere warranty and entitled to reliance? Or innocent misrep. And no remedy since K was performed? So if you found a misrepresentation? Head over to the parol evidence rule and discuss that Concurrent Liability in Contract and Tort: Negligent Misrepresentation Esso Petroleum Co v. Mardon (concurrent liability in K and tort) Facts: Esso misrepresents the potential sales ability of a gas station to the defendant. Mardon loses a lot of money. Holding: Mardon may claim in tort -- negligent misrepresentation. Mardon may not claim expectation damages, but he can claim lost opportunity cost in his reliance claim which essentially amounts to expectation damages in this case. Reasons: No guarantee that the site would be profitable no warranty found in that regard. But Esso had special knowledge and skill in assessing the gas station site. Much better position to forecast its future earning potential. Reliance. Duty to use reasonable care arises in tort. What this case stands for: Concurrent liability in K and tort. Other essential comments about concurrent liability in K and Tort Finding negligent misrepresentation (tort) Hedley Byrne duty: special relship between speaker and receiver speaker provides information, opinion, or advice representation false provided negligently did not meet standard of care reasonable reliance damage (detrimental reliance) Why a traditional reluctant to recognize tort? commercial is arena of contract risks should be allocated by contract floodgate concerns regarding economic loss (Hercules Management) words are different from acts: potential plaintiffs unlimited words exist forever economic not physical loss Concurrency (pros/cons of suing in tort/contract) SCC affirmed in BG Checo that one may sue in contract and in tort However, the contract can limit tort liability with an exclusion clause. Must be done in clear terms Pros of suing in Contract: may stipulate a more stringent obligation than tort law would impose dont have to establish standard of care damages may be higher in contract if, for instance, special circumstances were communicated can claim expectation damage in contract, tort can only claim reliance Cons of suing in contract: often shorter limitation period than tort because contract limitation period starts at time of breach, not time of discovery like tort contract may stipulate a less stringent obligation than tort law will impose (not really a con) but reliance damage in tort and expectation damages are often equivalent anyways since one can claim opportunity cost and money thrown away on venture in tort See pages 713-715 for the low chance that an exam question discusses professional liability in tort/contract Mistake (Mistake is the excuse of last resort in contract law. Courts dont like to help ppl get out of bad deals on this basis.) Categories of Mistake (these terms are often used interchangeably, not necessarily expected on exam. Emphasize policy framework instead that of risk allocation) Common mistake Both parties make same mistake. Both parties mistaken regarding some underlying fundamental fact. E.g., agreement to buy a Da Vinci. I think its real, you think its real, its actually a copy. If it being a Da Vinci is found to be a fundamental term, void contract on basis of mistake. Mutual Mistake Parties at cross purposes. One party has one perception about the contract while the other has a separate one. For example, I think the contract is to buy a car, you thought it was to sell a motorcycle. Whether the K is enforced will depend on whether, objectively, one interpretation of the facts is preferred. Unilateral mistake One party is mistaken about an important fact and the other person knows or ought to have known about the mistake. Unconscionable, possibly fraudulent. E.g., I think Im buying a real Da Vinci and you know Im mistaken and that its actually a fake. Generally, restitution damages are paid. Mistake in Formation Intro with test and policy factor comments Residual category for relief General Rule (objective test Hobbs) if there is a true ambiguity regarding an important/fundamental term no reason to prefer one partys understanding over the other the agreement may be void for mistake Result No contract. Despite an apparently valid contract, no K because there has been a serious misunderstanding about the nature of the K. Policy Issue: Assignment of risk who ought to bear the risk? Who ought to bear the consequences of the mistake in question? Reasonable expectations/unfair surprise. Reliance/caveat emptor Factors to consider Price: May be relevant in determining reasonable expectations Knowledge and skill of parties: Less likely to find mistake made by a person who possesses or who should possess substantial knowledge/skill. Ease of avoidance: Who is in best position to avoid mistake? Who can avoid it the cheapest? Common usage of the trade: May indicate expected allocation of risk, and a sense of what the parties probably expected. Knowledge of ambiguity snapping up: If one party aware of ambiguity, they should presumably be bound to clear it up. Courts dont like to help ppl snap up advantages that lead to inequitable results. Problems with finding mistake caveat emptor law should not provide a remedy for regret Function of contract can be seriously impaired if it were easy for a person to avoid it by claiming mistake Protection of third parties if A sells to B and B sells to C, C is vulnerable if A claims mistake Risk allocation its the function of a contract, not the courts, to allocate risk. Mistake is a broad tool for courts to use in that regard. Raffles v. Wichelhaus (mistake. Outdated concept of consensus ad idem) Facts: Def agrees to buy cotton from pltfs ship peerless. A different ship with same name comes first, def buys from that person. Def refuses to deal with pltf afterwards. Holding: Pltfs claim dismissed. Reasons: None given. Presumably accepts defendants submission that there was a latent ambiguity and that pltf meant one ship while the def assumed it was another. No consensus ad idem (meeting of the minds) therefore no contract. What this case stands for: Early 19th century decision. Essentially used a subjective test. Hobbs v. Esquimalt and Nanaimo Railway co (objective reasonable person test for finding of mistake in formation) Facts: Pltf buys land from def. Def claims land does not include mineral rights, only surface rights. Pltf disagrees, sues for specific performance. Holding: Pltf obtains specific performance. Reasons: Def should have known better. Company, large part of it a land company, should have known that land would include mineral rights. Unreasonable and careless mistake. Dissent claims essential that there is a mutual mistake and would have dismissed the appeal. What this case stands for: Objective reasonable person test is used to find mistake. Also consider Staiman Steel v. Commercial and Home Builders Ltd. Similar findings to the above, application of an objective test. Court states that only when circs are so ambiguous that a reasonable bystander could not infer a common intention will a court find mistake. Court must decide what reasonable third parties would infer to be the contract from the words and conduct of the parties who enter it, not the actual intention of the parties. Rectification (the test) Performance Industries v. Sylvan Lake is the leading case on rectification. Rectification is where a court essentially rewrites the contract, though not to the same level as reformation (a remedy found in the USA). Its more for instances where a contract might say the land is 10 by 10 feet when yards was intended. Four legal requirements for rectification: Plaintiff must prove existence and content of the inconsistent prior oral agreement. Plaintiff must provide the precise wording in which the prior intention can be expressed in the written instrument (precise form). There must be convincing proof of the prior agreement (beyond a balance of probabilities but less than beyond a reasonable doubt) The plaintiff must show that the defendant knew or ought to have known of the mistake in the written document and that to refuse rectification would result in equitable fraud which is an unconscionable result that gives the defendant an unfair advantage. Other factors considered are disparity in bargaining power and sophistication of parties. Otherwise, courts will not rectify. Great reluctance to overturn written documents on the basis of inconsistent oral agreements. Parol evidence rule evidence cannot be admitted to vary the terms of a written agreement. Reasonable person is not the test if the above four requirements arent met, courts wont imply a term. Mistaken Payments General rule is repayment on basis of unjust enrichment/restitution. Exception: Change of Position (reliance). No repayment if defendant/payee has reasonable relied, such that it would be unfair to require the repayment. Example Gift or discharge of indebtedness (change of position vis--vis a third party). E.g, I discharge debt, you spend money elsewhere as a result, I cannot then claim against you. Budai v. Ontario Lottery Corp (reliance on mistaken payment) Facts: Lottery ticket win of $5.00. Computer error informs pltf that he won $835.40. Spends $480.00 on a party with friends in the result. Holding: Lottery must lose $480 on the basis of negligent misrepresentation. Reasons: He held the expensive party in direct reliance of the mistaken payment. Comment: If he used the money to pay rent, since he had to pay his rent any way, there would be no detrimental reliance and he would have to refund the lottery corp in full. Mistaken Assumptions Introduction Mistaken assumption: Mistake that goes to the motive or reason for entering into the contract. Cases highlight the tension between the values of certainty and predictability (caveat emptor) and unfair surprise, regret and unjust enrichment on the other. Essential issue is risk allocation did parties allocate the risk of mistake? Second issue is fairness: Will one party be unjustly enriched if contract is enforced? Courts rarely grant relief on the basis of mistake. General principle remains caveat emptor. Sherwood v. Walker (mistaken assumption regarding nature of subject matter) Facts; Farmer sold cow, banker bought it, paid $80 on the basis that it was barren. Later found that the cow was with calf and actually worth $800 since it could breed. Holding: Contract void. Reason: Thing contracted for did not exist. Parties contracted for a barren cow, but this is a breeding cow. Went to the very nature of the thing (a fundamental mistake). Dissent: Parties contracted for cow. Cow exists. Cow is the only fundamental term. Neither knew whether or not she could breed. Differing assumptions as to the value of the bargain and each party took its chances. Factors: Pltf banker did not disclose that he thought she could breed. Unjust enrichment in that regard? Contra: Def. was a breeder while Pltf was a banker. Def. had special knowledge and should have known better. Bell v. Lever Brothers Ltd (Mistaken assumption regarding essential quality) Facts: Lucrative severance agreement for two senior employees. Employer subsequently discovers that employees had been engaged in insider trading and that it would have had cause to fire without notice. Holding: Employers claim dismissed Reasons: No mistake re substance. Mistake does not render the severance agreement entirely different. No mistake regarding performance (the bonuses, etc, presumably reflected past superior performance). Policy of certainty and predictability regarding compromises/settlements. Power relations employer takes risks when it settles. What this case stands for: In finding the above, the court articulated the following three types of operative mistaken assumptions: identity of contracting parties: intention is to contract with specified individual only: negatives consent. K void existence of substance matter: Where subject matter of K is assumed to be in existence by both parties but is not. Or if contract for sale of item you already own. Consent nullified. K void. Quality of subject matter. K void where mistake of both parties as to the existence of some quality which makes the thing without the quality essentially different from the thing as it was believed to be. A mistake regarding the substance must be a fundamental underlying assumption. Solle v. Butcher (Equitable jurisdiction/relief of mistaken assumption. Read this as it might be applicable whenever mistaken assumption is found) Facts: Def renovates a house and rents it to pltf at a rate above that permitted by rent control. Both parties though rent control didnt apply. Def relied on pltfs statement to that effect. Pltf claims rent control applies and that hes entitled to recovery of difference in rent. Def counters that lease was entered into on basis of mistake and asks that lease be voided. Holding: Lease set aside on terms that allowed landlord to apply to have rent increased to previously agreed amount. Reasons: Subject matter of K wasnt entirely different from what it was thought to be (lease isnt essentially different from rent controlled lease). Applied equity. Equity will relieve a party from the consequences of mistaken where K entered into: Under a common and fundamental misapprehension It can do so without injustice to third parties Unconscientious/unreasonable for the other party to avail herself of the advantage Essentially, equity will accept the existence of the contract, but it will then relieve the parties of future obligations under the contract. K is voidable on terms (directed by the court). Equitable jurisdiction was overturned in UK by The Great Peace decision but remains the law in Canada. Other comment: Negligent misrepresentation wasnt available at this time. Examples where equitable jurisdiction might be used: fraud material misrepresentation mistake by one party (re: terms or identity) and other knows but remains silent common assumption regarding a fundamental fact or rights and party not at fault Equitable remedies in mistake remember that. Losses dont necessarily lie where they fall in that case, judge may require them to be shared. The ability to do equitable remedies and setg aside contracts on terms essentially is the power of reformation Frustration Mistake assumption regarding existing facts Frustration assumptions regarding future events. Frustration is essentially like mistaken, but occurs when a contract is already in place and not yet complete. Examples: Impossible to perform (easy cases) Promise to marry: Promisor dies Contract for portrait: Painter loses sight Music hall lease: Music hall burns down (Taylor v. Caldwell) Undue hardship: Event imposes an inordinate and unexpected expense. Policy Context: Assignment of Risk Who should bear the risk of the unforeseen event? The mere fact that a K becomes more difficult to carry out is not sufficient in and of itself. Unexpected event must constitute a fundamental change in the bargain: A radical change in circumstances Historical development has moved beyond impossible to perform frustration: Krell v. Henry (frustration of commercial purpose of contract, test for frustration) Facts: Def. leased room for purpose of watching King Henry coronation event which was cancelled. Def paid a $25 deposit. Pltf sues for remaining $50. Holding: Pltfs claim dismissed but def loses deposit. Parties discharged from future performance. Purpose of lease was not lease of room, but lease of room to view procession. Reasons: Test for frustration (similar to test for mistake): what is the foundation of the K, having regard to all circumstances? Was performance of K prevented? Was the frustrating event reasonably in the contemplation of the parties at the date of the contract? If they thought about the risk, no frustration. ALCOA (Magnitude of risk unforeseen, reformation) Long term K for supply of aluminum. Parties agree to objective pricing formula. Formula is flawed, doesnt respond to massive increase in cost of electricity. Court finds mistaken assumption and frustration. Remedy is reformation (USA case, not available in Canada but Solle and Butcher [rectification] comes close) Other comments: ALCOA was very long term K. Parties agreed that ALCOA should get a profit and that ALCOA would not accept risk of price increase in commodity. The ability to do equitable remedies and setg aside contracts on terms essentially is the power of reformation. Re Westinghouse Electric Corp (Mere fact that K becomes expensive is not sufficient) To encourage sale of nuclear reactors, Westinghouse offers uranium at fixed price. World price more than triples. Westinghouse is on the hook despite this unexpected increase. Comment: Distinguishable from ALCOA in that parties did not agree Westinghouse would profit? Westinghouse accepted risk of price increase. Amalgamated Investment v. John Walker (difficulty of finding frustration in land contract) Def. advertises warehouse for sale for occupation or development. Pltf offers. Vendor asked if there was any proposal regarding designating the building as heritage vendor says no. K signed, next day the property is listed as a historical site causing value to drop immensely. Held: No frustration. Purchaser is liable. Risk was entirely foreseeable. Subject matter is not different land is land and land was conveyed. Allocation of risk: Pltf is developer, should have purchased an option. Did pltf assume risk by asking for disclosure? Comment: This is a UK case. KBK (follows) is more persuasive. KBK No. 138 Ventures Ltd. v. Canada Safeway Ltd (Canadian case, finding frustration in land contract when unforeseen fundamental change in land occurs. Use this case as the test for frustration) Facts: Safeway owns a land parcel, advertises it as prime development opportunity zoned C-2 at the time. KBK offers, enters contract. KBK pays deposit. City on its own motion (highly unusual occurrence) rezones land to CD-1 (much lower density). Land falls in value immensely. KBK claims K is frustrated. Holding: K is frustrated, KBK is entitled to return of deposit. Reasons: BCCA reviews case law and applies the following test: Event: Must occur after formation. Must not be self-induced. Must not have been foreseeable at the time the contract was signed. Impact: Must be more than mere inconvenience must make contract fruitless. Must be radical change in K (completely affects nature, meaning, purpose, effect and consequences of K. Change must be permanent. Affect basic underlying assumption of K. Unanticipated risk occurring after formation and not foreseen. No allocation of risk in K. K said BCCA distinguishes this case from Victoria Woods where the seller in that case only had mere knowledge of buyers intent to redevelop. BCCA says Safeway had more than that for these reasons: Ad specifically referred to zoning designation and set out permitted uses K contained a clause which specifically stated buyers intention to redevelop Purchase price was specifically calculated on basis of PSR (development potential) agreement was kind of like a joint venture K silent as to allocation of risk ARGUMENTS FOR/AGAINST FRUSTRATION. ONE PARTY WILL SAY FORESEEABLE. BUT THE OTHER WILL SAY RADICAL CHANGE. ALSO CONSIDER POLICY CONTEXT ASSIGNMENT OF RISK. Remedies for frustration and the Frustrated Contract Act Historically, when frustration is found, court relieves parties of future obligations. Any losses were left where they lay. See Taylor v. Caldwell for this would be tenant lost deposit because it was already paid. He didnt have to pay any more rent however. However, almost all common law provinces have enacted legislation to take into account reliance costs other parties might have incurred. See BCs Frustrated Contract Act for instance. That act requires reliance costs to be apportioned equally in the absence of an agreement to the contrary within the K. Example: You contract me to bake a cake for your party. I start baking cake. Party is cancelled because of unforeseen disastrous event. You havent paid me yet you dont have to pay me anything as K was frustrated. Normally I would suffer cost of baking materials on my own (my reliance) but Frustrated K Act states that we will share the loss equally. Control of Contract Power Introduction a market based system isnt the only way goods and promises are exchanged in the present and future, some critical theories: Mensch leftie Marxist wrote Freedom of Contract as Ideology concept that in the capitalist system of contracting, the assumption that the state is not implicated in the outcomes of free market bargaining is false, contracts are enforced by the state after all developed the concepts that duress excludes economic pressure from the legal definition example: coercion is inherent in each partys legally protected threat to withhold what is owned ownership is a function of legal entitlement, every bargain is a function of the legal order legal decisions revolve around what extent bargained for advantages should be protected as rights in that regard, contract law is an example of how the state can use its power through the law to keep the wealthy in their current class standing capitalist system of private property is inherently coercive coercion lies at the heart of every bargain this is in contrast to classical liberalism which states that economic pressure does not vitiate consent question: What is free and voluntary consent? At what point does voluntary consent end and coercion arising from social context begin? The chain of gifts in the economy of the Anishabeg, economic exchange cannot be understood apart from kinship, where all social interaction is conditioned by kinship concepts of markets, communism, etc, do not apply in an Anishabeg community as all economics are strictly personal Anishabeg economics involves a sharing of gifts where exchange produces both economic benefit and a feeling of good will that cements the social bond the closer the kin relationship between people, the greater the reliance, and therefore the implication of trust exchange would balance out in the long run known as general reciprocity and is found within households and among members of a nuclear family found in non-native families as well, e.g., Christmas, no insistence on exchange of equally valuable gifts its the thought that counts however, exchange between very distant kin or strangers, expectation that there be an immediate exchange of equally valuable gifts this is not a market exchange since its still in the form of a gift and still carries social implications explains Indian giving Indian would give a gift to a white man, white man would simply say thanks and not reciprocate. This was against custom so to speak and so the Indian would ask for the gift back blessed to give and receive as a resource becomes scarce, anishabeg members become more anxious to give it away e.g., deer meat given to family, then extended family, etc, deer is shared by a greater number of people direct opposite of market system which would encourage hoarding on the other hand, once deer meat is given away, expectation that one would receive something in return thus sharing is like a life insurance policy ultimately, cooperative giving started in the family, husbands gave meat and skins, wives gave cooked food and clothing, children received food and clothing and gave blueberries and firewood, all members of the family given the same respect for their efforts; this produced a sense of interdependency, security and satisfaction Contract Interpretation MacNeil, The New Social Contract Five elements of promise in exchange, always to be viewed in their particular society: The will of the promisor the will of the promise present action to limit future choice communication measured reciprocity Nonpromissory exchange projectors lack one or more of the elements of a promise and they come in many forms. Examples: custom, status, habit and other internalizations, command in hierarchal structures, and expectations created by the dynamics of any status quo. The limited role of the promise every promise is always two promises the senders and the receivers. the resulting nonmutuality ranges from subtle to gross differences in understanding. Every promise is essentially incomplete. These differences are reconciled by bringing into the picture something other than the promises themselves this something is a nonpromissory projection of exchange into the future as a result in part, individuals and societies view promises as less than absolute; promise breaking occurs frequently and is expected Renner, The Institutions of Private Law Marxist, held extreme view of the lawyers function Lawyers are responsible for upholding positive law E.g,. a loan between two persons, it is the lawyers responsibility to ascertain all the relevant legal norms and apply them to the case at hand It is not the lawyers responsibility to consider anything else for instance, the role of the loan in the economic system or its effect on classes or in society as a whole social repercussions are the realm of the economist and sociologist It is not the object of positive legal analysis to investigate the origin of the common will, its essence, its growth or decay Federal Commerce & Navigation Co. v. Tradax Export SA (the importance of consistency in standard form contracts) Facts: A ship was delayed from docking because of congestion. The question came to be who should bear the cost of the delay the ship owner or the charterer? The standard form contract said one of the parties (which party is unclear and irrelevant) should bear the risk, even though there was a sense that this was not just. Holding: The standard form contract should be enforced as its written Reasons: Need for efficiency and certainty in the interpretation of contractual obligations. Efficient allocation of risk demands that both parties are able to order their affairs against the backdrop of knowledge of liability. parties who have bargained on equal terms in a free market should stick to their agreements. What this case stands for: Importance of consistent interpretation of contracts generally, especially in widely used commercial contracts. Other comments: Benefits of predictability and strict enforcement: efficiency in bargaining faster. Facilitates shopping comparison of various charter rates. Facilitates administration of contract both parties will understand duties. Concerns with predictability and strict enforcement: Presumes knowledge equal access to law. Conservative great reluctance to change. Equity unfairness. Context: See MacNeil since every contract is necessarily incomplete, note that contracts, even standard form ones are influenced by a host of additional considerations such as circumstances, objectives, expectations, habit and custom. Strict enforcement gives these additional considerations less credit than deserved. Scott v. Wawanesa (the problem with strict enforcement of standard form contracts) Facts: Insureds son intentionally burns down the family home. The insurance contract clearly states that insured extends to the named insureds children and that if anyone intentionally damages the insured property, the insurance will not cover the damage. Holding: The defendant is off the hook Reasons: Clear and unambiguous language. In that case, the court must enforce clear meaning unless the contract is unreasonable or has an effect contrary to intention of parties. Must enforce standard contracts strictly. Important dissent: The contract isnt free of ambiguity. Whats unclear is whether or not exclusion from insurance should apply only to the wrongdoer insured or to the innocent insureds as well. Conflicting Canadian authority BC courts say the exclusion does extend to all parties, Ontario says it doesnt. Reference to the United States: Historical view was considering whether the interests at stake were joint and several. If joint, then no recovery. Why? Person cannot benefit from wrongdoing directly or indirectly Deter crime Prevent fraud Modern approach in the United States: Depends upon contract and whether the co insureds have promised the same performance or a separate performance by each. Has each insured promised that all insured parties will preserve property or have they just promised that he or she will preserve his or her property? What does intuition tell you? If you bought an insurance contract, wouldnt you assume that you were covered if someone else, an ex-spouse for instance, burned down the house with your possessions? You did nothing wrong after all. Counter from insurance company: Son is protected from being sued through subrogation by having his name included. What this case stands for: the problem with strict enforcement of standard contracts underlying theme of the dissents argument: contra proferentum (preference against the drafter of the contract) because as an institutional insurance company, it can always redraft its contract. Meanwhile, the Scotts have lost out in a big way reasonable expectations of the parties: person unversed in niceties of insurance law would assume coverage Interesting comments from the text: majority acted like it had no choice in its decision. The fact was, as shown by the dissent, it had a choice and made one. Insurers now know a sneaky position they can take in similar circumstances. Insured individuals remain unlikely to consider in detail the risks they run Techniques of Control SEE THIS IF NEGLIGENCE ISSUE courts can read down/up contract provisions to expand obligations or narrow the scope of exemptions see Fraser-Reid court was unwilling to create an implied warranty for new homes because of the concern of how that would affect the housing market however, the SCC found a warranty in a clause that stated there were no outstanding building code infractions buyers expectations were protected at expense of builders judges have sometimes held that exclusion of any warranty or condition does not work if there was a negligent misstatement tort law is used to compensate for the potential unreasonable strictness of contract law judges are unlikely to find that exemption clauses exclude liability for negligence. After all, finding negligence means finding fault not proper that anyone should avoid liability when he or she has been guilty of fault judges also use contra proferentum (see Wawanesa case for definition) contra proferentum is justified on the basis that the party who drafted the contract could have avoided the ambiguity and, not having done so, should bear the risk of an unfavourable interpretation The Parol Evidence Rule (no assigned cases to read) no extrinsic evidence is considered part of a contractual arrangement between two parties when there is a clear and unambiguous written contract Rationale Protects the sanctity of a contract that has been reduced to writing: Administrative/adjudicative ease. More convenient and efficient for judges to rely on written contracts Prevent Fraud/Perjury. Written contract protects the expectations of a party who relies upon the agreement and avoids rewriting the parties agreement based on contested evidence Enhance certainty: Written document provides objective evidence of the agreement. Efficacy of commercial documents: The rule bolsters the efficacy of commercial documents and standard forms. It facilitates business, reduces transaction costs, and protects reliance. Prevent unfair surprise: Encourages parties to plan carefully and include all relevant terms in the written contract. Prevent unfair surprise from someone making a casual statement and having the other rely upon it Control Agents/Employees: Who might carelessly modify their employers contract The Concern exclusion or entire agreement clauses that state there are no other warranties/representations outside of the contract, yet one party relied on such a warranty to be induced into the agreement. Exceptions to the parol evidence rule (procedural side of the rule) Interpretation: Extrinsic evidence can clear up an ambiguity in the contract. Invalidity: Extrinsic evidence can show the contract is invalid because of lack of intention, consideration or capacity Misrepresentation: Extrinsic evidence can show there was an innocent, negligent, or fraudulent misrepresentation Mistake: Extrinsic evidence can show there was a mistake as to the nature or effect of the agreement Rectification: Extrinsic evidence can correct an error/mistake in putting the agreement in writing. Condition precedent: Extrinsic evidence can show there was a separate agreement along with the written agreement Collateral contract/warranty/agreement: Extrinsic evidence can show there was a separate agreement along with the written agreement Unconscionability: Extrinsic evidence can show that the contract was brought about through unconscionable means. Statutory override/consumer contracts: The BC Business Practice and Consumer Protection Act states that the parol evidence rule cannot exclude or limit the admissibility of evidence relating to the understanding of the parties as to a particular provision or the consumer transaction itself. Modification and discharge: Extrinsic evidence can show the contract has been modified or terminated Equitable remedy: Extrinsic evidence can support a claim for an equitable remedy However: Extrinsic evidence that contradicts the written contract is usually almost always inadmissible. Bauer v. Bank of Montreal (SCC) -- collateral agreement that contradicts the written agreement is inadmissible due to the parol evidence rule. This is the case, even though the evidence can be admitted. Note that in this case, court wasnt entirely convinced that the oral evidence was sound either. The way courts get around Bauer: Gallen v. Allstate Grain Co. This will occur when the contradictory oral evidence is unequivocal. The court may state that reliance on the oral representation was reasonable, and that the oral representation did not contradict the contract, but merely added or varied the written terms. Classic case of reading down the exclusion clause and contra proferentem Also comment: The judge in this case stated that the parol evidence rule is not a rule per se but merely a strong presumption in favour of the written contract. if evidence is clear that the oral warranty was intended to prevail, it will prevail Zippy Print Enterprises v. Pawliuk (an example of somewhat sophisticated commercial parties not having to rely on the strict wording of the contract, parol evidence rule not applying to a specific representation) a general exclusion clause will not override a specific representation on a point of substance which was intended to induce the making of the agreement unless the intended effect of the exclusion clause can be shown to have been specifically drawn to or acknowledged by the other party Note: This was a franchisee/franchisor case where the franchisee might not have been as experienced and there might be an inequality of bargaining power issue in the background. A swing-back to Bauer: Bank of Nova Scotia v. Zackheim (Ontario case, unlike the others) PER excluded evidence of oral innocent misrepresentations that contradicted the written terms of a guarantee. Court distinguished Bauer on the basis that there was no evidence of misrepresentation. In this case, the defendant (!) was trying to admit evidence of a misrepresentation. Factors Influencing Application of PER (read this for the test): Varies ------------------Presumption in favour of written K strengthening---------( Adds a term Varies a term Contradicts Determine if oral rep. is a warranty If yes, then harmonize if possible. Read the oral warranty and contract together. If no contradiction, no problem Contradiction? If yes, then per Bauer strong presumption that written contract governs. Other influencing factors. General: intent, reliance, reasonable expectations, unfair surprise Nature of Change/conflict: is it a serious conflict/contradiction? Nature of document: Clarity of wording? Read by parties (knowledge)? Intended to be whole agreement? Bargaining relationship: Power relationship? Standard form contract? Evidence of devious practice? Nature of representation: Clarity/significance. Credibility of evidence Finally, refer to statutory overrides, if any (they exist in BC). Standard Form Contracts also known as contracts of adhesion. Terms are generally set by one party and contract is offered on a take it or leave it basis come in a variety of forms, etc. sometimes the entire contract is standard, sometimes a clause is standard under what circumstances are these contracts enforceable? Remember, written contracts themselves are merely pieces of paper and are not the contract itself. They are evidence of a contract Advantages Reduce transaction costs: Eliminate the need for bargaining in every transaction. Standard forms permit economies of scale, reducing transaction costs too. Terms are based on past experience: They are worked out over time to most efficiently allocate risk and allow parties to plan with certainty and predictability. Fixed meaning: Standardized terms come to acquire this and this cuts down on judicial risk that a clause will be interpreted in an unexpected way. Control agents: Who might not have the authority to strike individual negotiations. Consistency. Disadvantages Notice and Knowledge: Often in small print. Typically not read by unsophisticated parties. Protect the expectations of one side only the party that drew up the agreement No bargaining: Offered on a take it or leave it basis. Weaker party might not be able to shop around because of a monopoly. Knowledge differential: Party that drafts the contract generally has better knowledge about usual risks and problems associated with the deal. Customer usually lacks this info Expectations defeated: Standard contracts can be used to defeat the expectations of the customer, especially when an agent makes inconsistent representations (parol evidence rule might kick in) Commentary: Kessler criticizes courts for protecting weaker parties by reading down standard contracts and creating ambiguities. This creates confusing and contradictory decisions that make standard contracts less efficient and is bad for everyone in the long run. Havighurst The terms of a contract often set out a standard of performance far higher for the weaker party while minimizing the stronger partys responsibility. He expresses concern for situations where there is unequal bargaining power, or where there is risk of fly by night operations in these situations where non-legal pressures wont suffice to ensure performance, he argues that the law should step in and limit the freedom of contract of the stronger party. General rule for signed documents: Party signing a written document is bound by its terms whether he read them or was even aware of them (LEstrange, Eng. CA, 1934). Ignorance is no defence. The Ticket Cases i.e., cases where one party does not actually sign the written agreement to effect a contract common law courts developed the doctrine of reasonable notice: if there is no knowledge of conditions, a person is bound if there was reasonable notice that the ticket contained conditions Parker v. South Eastern Railway (party is bound to unsigned agreement with reasonable notice, test to employ) BUT ALSO LOOK BELOW KARROL, ETC FOR THE CANADIAN VIEWPOINT Facts: Ticket received for storage of bag at railway. Bag lost. Value of bag was $25 but ticket limited damages to $10. Holding: Liability limited to $10 Reasons: (three concurring judgments) Judge Mellish: When one party does not sign the contract, evidence must be shown to show assent. Evidence may be: actual knowledge that the document contained conditions; or reasonable steps taken to provide notice that the document contains conditions Law essentially treats signature and notice as substitutes. The railway company must do (what is) sufficient to inform people in general that the ticket contains conditions a particular plaintiff (ought not be excused) on account of his exceptional ignorance or stupidity or carelessness. When applied to case at bar: Actual knowledge? pltf knew ticket contained writing did not read: no knowledge thought it referred to receipt for $ Reasonable steps? handed ticket ticket said see back (back contained conditions) notice posted on wall to same effect Judge Baggallay: While he agreed with Mellish, this judge noted that the practice of issuing tickets was unusual. Nowadays it is common; arguably there is a presumption that people know tickets contain conditions. Judge Bramwell: Common understanding: standard form conditions are binding b/c people know and thus accept that there will be terms in a contract set out in writing. HOWEVER: Imposes an implied understanding that terms will not be unreasonable (this reasoning hasnt been picked up by subsequent courts. No general rule exists). What this case stands for: Doctrine of reasonable notice. J Spurling v. Bradshaw (Lord Denning, the more unreasonable the clause, the greater the notice required. The red hand rule) Summary: The more unreasonable a clause, Lord Denning argues, the greater the notice which must be given. Some clauses arguably need to be in red ink with a red hand pointing to the clause (and sometimes you actually see this in modern contracts). Thornton v. Shoe Lane Parking (application of Lord Dennings red hand rule, unreasonable condition in a ticket) Facts: Pltf suffers personal injuries in defs parkade. Sign at entrance says : All cars parked at owners risk. Pltf read ticket but only for the time of entry. Saw writing but did not read. Ticket said subject to posted conditions. Posted conditions inside provided exclusion for liability for personal injury. Held: Def cant rely on exclusion notice. Reasons: Technical reason: Denning invoked law of offer and acceptance and concludes that contract was formed when pltf moved forward and obtained his ticket. Words on ticket could not alter contract since contract already formed at that point in time because the ticket was received. Personal injury exclusion was a GTA w/o consideration. Insufficient notice per Parker: Def acknowledges that notice was inadequate. Denning states that such a draconian and unreasonable term requires explicit notice (red ink/hand) Actual knowledge: Pltf looked at ticket and knew it contained writing. Def argues he must have known it contained conditions. Denning replies that no evidence to the effect that he knew. No evidence that he knew of this condition the exclusion of liability (likely not a good argument nowadays). Here, Denning expands the doctrine of reasonable notice to require knowledge of actual exempting condition rather than simply notice that there is a condition. Sign: All cars parked at owners risk. Pltf did see this. Why not binding? Refers to property only not personal injuries. Comment: Why do I think this term was unreasonable? Parking garages exist to store property. Seems like a stretch to have a parking garage consider matters of personal injury. What this case stands for: Resolution reflects interpretation as a technique to avoid an unfair result contra proferentem Note different avoidance techniques: Use of rules WRT offer/acceptance Interpretation: exemption applies only to property damage Reasonable notice expansion on Parker to actual notice of specific exempting condition Denning alludes to the fact that an exempting condition could be void for unreasonableness (not accepted widely by the courts) Interfoto (Thornton/reasonable notice doctrine applies to clauses generally, not just exemption clauses) Summary: The invoice had unreasonable repayment conditions in fine print that were not industry standard. Court finds that unreasonable terms in unsigned agreements OK with specific notice and proof that other party accepted them. Signed Contracts and Fundamental Breach not to be confused with repudiatory breach where the innocent party may treat the contract as at an end when the other side fails to deliver on a substantial term (condition) fundamental breach is the guilty party permitted to rely on the exclusion clause where there has been a fundamental breach of contract? Is it a rule of law or a rule of construction? UK Approach to Fundamental Breach Interplay between Lord Denning and the House of Lords according to lord denning, it is a rule of law and applies regardless of the parties intentions. See Karsales Ltd. v. Wallis and Harbutts Plasticine Ltd v. Wayne Tank & Pump co. In these cases, the guilty party breached the contract in a fundamental way (provided very shoddy goods) and tried to rely on exclusion of liability clause but could not according to HoL (higher level courts) it is a rule of construction (interpretation) only and they confirmed this view in Photo Production Facts: Security guard starts a fire in the building he was supposed to protect. Contract btwn Photo Production and the Security company states that there is no liability for the security company. HoL rules in favour of security company. Reasons: Fundamental breach of contract brings contractual obligations of performance to an end the exclusion clause survives and the issue is whether the clause applies to the loss in question the HL considers the reasonableness of the clause clearly worded only a modest charge for services def had no knowledge of value of property or of fire precautions pltf is the cheapest avoider and insurer (property insurance cheaper than liability insurance) no inequality of bargaining power Note: The need for a Lord Denning style rule of law approach has been substantially reduced by legislation UKs Unfair Contract Terms Act. Renders some exclusion clauses void and subjects others to a test of reasonableness. Canadian Approach to Fundamental Breach Hunter Engineering Co. Inv v. Syncrude Canada Ltd. (doctrine of fundamental breach is a rule of construction only, better to use unconscionability, sophisticated commercial parties arent subject to it, perhaps consumers though) Facts: Syncrude contracts for 14 conveyor systems, including gearboxes. Defs contract provides one year warranty with exclusion for all other warranties/conditions. System failed after 15 months. Value of contract was $4,000,000. Value of gears was $115,000 and cost of repairs was $100,000 each. Holding: The def is saved by the warranty and exclusion clauses Reasons: Majority: doctrine of fundamental breach is a rule of construction only many courts still treat the doctrine as a rule of law problems: uncertainty a game of categorization illustrated by lower court decisions exclusion clauses can be fair and reasonable unfair surprise and unjust enrichment: in commercial context, exclusions are reflected in price unevenness of doctrine why restrict doctrine to exclusion clauses? Other clauses may be as harsh doctrine cloaks the real enquiry unfairness solution: unconscionability if it exists, def shouldnt be able to rely on the exclusion clause Exclusion clause is upheld. Clear and unambiguous. No evidence of unconscionability. Minority (concurring): agrees with majority with the problem of having the doctrine be a rule of law, but disagrees with relying on unconscionability problem with unconscionability: this is assessed at time of contract formation only. A clause may be fair at time of signing, but may become unfair later on further, unconscionability requires inequality of bargaining power What this case stands for: law unsettled in Canada judges agree that in typical commercial transaction, proper approach is to give effect to the clear wording of the exclusion clause little distinction between unconscionability and unfair and unreasonable doctrine makes sense as a rule of law in consumer context, but in commercial context, exclusion clauses are rational, efficient and should be upheld A Possible Exception Exclusion Clauses Continued The Problem it is usually artificial to find consent in a typical boilerplate contract in the consumer context (this is not necessarily the case with contracts negotiated between sophisticated commercial actors) Llewellyns Solution In standard form contracts, the law should recognize that the parties have agreed to a broadly formed contract, with reciprocal terms: consumer agrees to be bound by the terms of the standard form contract (ie agrees to be bound by unknown terms); and seller undertakes not to impose any manifestly unreasonable or unfair terms Tilden v. Clendenning (application of Llewellyns Solution? Signature rule no longer in effect? The importance of taking reasonable steps to bring unusual terms to consumers attention) Facts: Def signed a car lease contract stating that his liability was limited to nil provided he did not drink alcohol whatsoever while driving. Accident. Charged and pled guilty to impaired driving but claims not actually impaired. Trial judge accepts that he was not impaired. Holding: Pltf cannot rely on the exclusion clause Reasons: Dissent: The dissent would have affirmed the signature rule and held in the pltfs favour. Clear concern for certainty, business efficacy and market ordering. Limitation is reflected in price. Dissent did not want to inquire into reasonableness of terms. Why? Too complicated: price, availability of insurance, competitive nature of market floodgates; and threatens the entire foundation of contract law: parties make bargains, not the courts Also, the def did not breach the contract in a mere technical way (in the dissenting judges opinion). Majority: Majority found the clause was unreasonable (drinking a single glass of wine shouldnt eliminate liability) Customer had no actual knowledge of the term and no reasonable steps were taken to bring it to his attention. Had he known, court concludes he would not have signed the contract (is this a valid assumption?) Court applies purposive interpretation to signature rule. Rationale for signature rule is that signature is a good manifestation of assent to the terms upon which the other party can rely. Reliance here is not reasonable: speed of transaction length of document fine print (clearly, the contract is meant not to be read) Tilden (pltf) ought to have known there was no actual assent. Reliance of signature was unreasonable. Clerk saw that contract was signed without reading. What this case stands for: Where party seeking to rely on contract knows that the signature of the other party does not reflect the true intention of the signer and the other party is unaware of the stringent and onerous provisions which the standard form contains, then: the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party. Comment: Post-Tilden, courts have not applied Tilden broadly. Courts continue to uphold standard form contracts and signed waivers of liability even when those waivers have not been read. Courts may, instead, read down the contract or rely on something else like unconscionability. Other comment: The court is taking a subjective approach to finding expectations. This makes contract law very complicated and very difficult for solicitors to draft standard forms that protect his clients interests. See Karroll v. Silver Star: Tilden is only applicable in limited circumstances: where person knew or had reason to know of others mistake as to its terms. What kind of circumstances is Tilden valid? hasty informal clause inconsistent with rest of contract absence of opportunity to read length and amount of small print Signed Waivers: Risky activities With signed waivers for risky activities: in the absence of unconscionability, fraud, misrepresentation, the traditional rule I that signature is a manifestation of assent: Delaney v. Cascade River Holidays (BCCA, 1981) Ochoa v. Canadian Mountain Holidays Summary: Japanese business man injured while heli-skiing. Court upheld the waiver even though pltf did not speakd or read English. Why? Limited Tilden to its facts. In Tilden: signing of doc was hurried no opportunity to read it clause was part of lengthy document substantially inconsistent with overall purpose of contract Court held that pltf in this case was intelligent and resourceful, that he knew the doc affected his legal rights and that he had access to a translator. Trial judge noted however: Any waiver seeking to cover negligent conduct must surely contain something more than the word negligence largely because the lay meaning of negligence and the legal meaning differ considerably. Karroll v. Silver Star (circumstance when a waiver of liability is accepted [use this case for the relevant law], agency exception to privity rule) Facts: Pltf signs waiver form, participates in ski race and is injured when someone walks onto the course. Def argues signature rule. Pltf argues lack of reasonable notice of terms in standard form. Holding: Def is not liable because the waiver is valid Reasons: Tilden is only applicable in limited circumstances: where person knew or had reason to know of others mistake as to its terms. What kind of circumstances is Tilden valid? hasty informal clause inconsistent with rest of contract absence of opportunity to read length and amount of small print In Karroll, reasonable person would not have known that Karroll was not assenting. Why? pltf signed knowing it was a legal document release consistent with purpose of contract hazardous activity short, easy to read she had signed such a release before Silver Star (def) took reasonable steps: capitalized heading short, sufficient time to read Comment: in a usual commercial situation, there is no need for this rule. Its safe to assume that the parties know what they are doing this assumption, however, isnt necessarily valid in consumer context, especially when inequality of bargaining power exists Other Comment: Remember to consider distinguishing between what was fair at signing and what has now since become unfair. Refer to Syncrude minority dissent in that regard. Consider distinguishing between negligence and gross negligence? Recognize that there is no legal difference however. Cases like these seem to come down to the reasonableness of the impugned clause. If unreasonable, courts are likely to read it down one way or another. Unreasonableness seems to come from clauses that are inconsistent with the rest of the contract because this raises an issue of notice. Note: Vernon Ski Club successfully relied on agency exception to privity rule: release made it clear that club was intended to be protected by the waiver release made it clear that silver star was contracting on behalf of its agents as well silver star had authority from club to contract on a release of liability on its behalf Vernon ski club gave consideration for the release (in the form of assisting in the management of the race) Note: Where signature rule has been overruled tends to usually be, common thread of inequality of bargaining power, particular in consumer context and particularly with standard form contracts Ecommerce and control of contractual power Radin, Humans, Computers and Binding Commitment the contract as consent/contract as product distinction Contrasts two views of contract: contract as consent: the doctrinal view of contract law the terms of contract are binding because they are based on agreement contract as product: the terms of the contract are features of the product (warranties, etc). When I buy Microsoft Word I get functionality and a clause saying I can only sue Microsoft in Washington State. The clause is part of the product and part of the value of the commercial exchange Radin says that policy makers must decide which kind of terms must be brought to the attention of the buyer and which kind of terms must be simply excluded on autonomy grounds. Econtract enforceability General rules of contract law apply to ecommerce BC Electronic Transactions Act: electronic transactions have legal effect; offer and acceptance can be communicated electronically Categories of electronic agreement by method of indicating agreement Shrink wrap contracts notice of terms/conditions of the contract inside the sealed plastic or on a users computer screen after installing software terms and conditions state that using product or keeping product beyond a certain period bind the user to the terms and conditions (see Radin, its part of the product) courts (American ones at least) have enforced shrink-wrap agreements; reasoning that opening a package and retaining the product are sufficient acts to demonstrate acceptance of terms Click-wrap contracts users are required to click an icon I agree usually. Being required to scroll through the document is akin to turning the page of a contract. Binding: Rudder v. Microsoft (1999, Ont SCJ). Application of lestrange signature rule applies when consumer clicks I agree Browse-wrap user interacts with website, e.g., by downloading a program. Website will display terms and conditions somewhere on it with a statement that the user of the software is bound by it American courts (Specht v. Netscape) have not found this binding. Also in Specht, the statement please review is a mere invitation to read, not a condition Uncertain in Canada, arguably insufficient notice is provided here. OTOH, if sufficient notice were offered and if the action required shows acceptance of the terms, there is no reason not to enforce the contract Also, arguably, the distinction btwn browse-wrap and the other contract types is illogical and arbitrary. A sticker on a box may be less conspicuous than large print lettering on a website Also, courts ought not to unduly restrict the development of new technologies and new industries by using old fashioned rules that are insensitive to the realities of ecommerce Kantiz v. Rogers Cable Inc (enforceability of arbitration clause where notice of contract changes given on a website) Facts: Customers sign a user agreement stating that Rogers may change terms/conditions of agreement at any time (this clause eliminates the need for consideration). Finding the user agreement on the website is arguably difficult. Holding: The contract is binding on the consumer Reasons: Dealing with the def meant the consumer pltf had an obligation to check the website from time to time. Notice of amendment had been posted by Rogers on the Customer Support section of the website. Pltfs could have discontinued their service. Arbitration clause was not hidden or buried Comments on arbitration clauses: new phenomenon in Canada, relatively since arbitration is very expensive, it often allows corporations to escape responsibility cant always be used e.g., custody disputes. Court has inherent jurisdiction consumer protection in some provinces none exists in BC in Alberta, arbitration clause must be approved by the ministry in Ontario, the clause cannot apply to things falling under the consumer goods/services act in Quebec, cannot apply to disputes regarding less than $5000 On the other hand, if the business does a material change to the good/service being provided on a continuous basis to a consumer, the Consumer Protection Act states that such a change causes the goods to be regarded as unsolicited (consumer doesnt have to pay for them). Material change, however, doesnt refer to circumstances where the price changes. Introduction to three contractual doctrines that regard fairness of bargain If you talk about any one of these in exam, you must discuss all three Substantial degree of overlap between the 3, so consider all of them where possible Duress (common law) a coercion of will that vitiates consent. The focus of the analysis is on the pressure exerted by one party on another: the proverbial gun to the head. Commonly occurs in a GTA situation Undue influence (equity) the focus is on the improper exercise of influence by someone in a special relationship of trust and confidence. Commonly found in a formation of contract situation Unconscionability (equity) technically, found only in a formation of contract situation. The focus is on the overall commercial morality of the bargain by looking to the inequality of bargaining power and the resulting bargain. All considerations made at the time the contract was entered into Duress Focus is on voluntariness of consent a coercion of will that vitiates consent (Pao On) Physical threats and intimidation (obviously) result in a finding of duress Economic duress Port Caledonia: 1903. Ship was about to crash into another boat. Tug offers assistance, but demands an unreasonable sum of $1000. Court rejects this unreasonable contract and reduces the amount owed to $200. D&C Builders: 1966. Pltf does construction work for $480, then sends the bill to def. Def knows that pltf is about to go bankrupt. Def says to pltf that unless he accepts $300 and abandons the rest, he will pay nothing. Court finds no valid consent held to ransom. Does this case reflect an appropriate line between legitimate business pressure and coercion? What about a bankruptcy sale? Perhaps the difference is that D&C was in the context of a going transaction. Pao On (the test for economic duress, accepted by Canadian courts) Four factors: was consent made under protest? Was there an alternative course open to the pltf? Did the pltf seek legal advice? Did the pltf take prompt steps to avoid the contract? If the answer is yes to parts 1, 3-4, and no to part 2, economic duress likely exists. True cases of economic duress are rare, however, as there are usually other options available such as legal remedies. Comments: The original coercion of will theory has been criticized for involving a difficult inquiry into the psychological state of the party. It means that it likely wont apply in the commercial context. Its been replaced with two criteria: 1) the lack of practical alternatives and 2) the illegitimacy of the pressure Regarding the illegitimacy of the pressure. Look at the nature of the pressure and the nature of the demand. A threat to sue is legitimate and so it normally wont count. Is the threat a bona fide belief with respect to the enforcement of rights or is it more akin to blackmail? Does the threat breach a tort or a statutory duty? See D&C Builders did one party use knowledge of financial stress in an exploitative way? Whether or not the pltf had independent legal advice is an important factor to Canadian courts. Gotaverken Energy Systems (Canadian example of the Pao On case) The pltf company was induced into changing the construction contract from fixed price to time plus materials because, while construction was underway, they were losing substantial amounts of money. The court found that: the pltf agreed to the contract under protest the pltf did not seek legal advice the pltf had no effective remedy or option but to agree the pltf took steps to avoid the contract as soon as it was completed Stott v. Merit Investments (a contract made under duress can be ratified and made enforceable) The pltf, stott, arguably entered the settlement agreement with his company under duress (sign it or be fired, no option for legal advice, etc). However, the pltfs subsequent conduct (continuing to make payments after two years, lack of complaints, etc) ratified the contract and made it legal. Two years later, he could not be said to be acting under duress. Summary: A contract entered into under duress is voidable but not void ab initio. It can subsequently be made enforceable. Final comment on duress fairness of bargain: Fairness of the bargain is doctrinally irrelevant. The issue is one of consent. However, almost all cases of duress involve bargains that the coerced party claims are unfair. Undue Influence Introduction: Equitys version of the common law doctrine of duress. Occurs when one party is induced by another in a relationship or trust, confidence, or dependence to enter a contract. Unclear in Canada whether or not the underlying bargain must be unfair. In the UK, the focus is on the undue influence itself. It doesnt matter if the agreement is unfair or not. Usually occurs when someone is persuaded to do something that is not in their best interests. Categories of undue influence: Actual undue influence pltf must prove the wrongdoer exerted undue influence Presumed undue influence a relship of trust/confidence exists and it is presumed that the wrongdoer abused this relationship. If so, the def must prove that the transaction was entered into freely. One way to rebut this presumption is to show the pltf obtained independent legal advice (ILA): Two categories of presumed influence situations de jure: relships that raise the presumption of undue influence. Solicitor/client, doctor/patient, parent/child, trustee/beneficiary, priest/worshipper, army and police De facto: a relship of trust and confidence Note. Married persons do not fall under category 1. They can fall under 2 if: trust and confidence was placed in partner in relation to family affairs; or sexual/emotional ties btwn parties provide a ready weapon for undue influence interests are overborne by fears of damaging the relship Presumption of UI can also be rebutted if its shown that the pltf had a free and independent mind. Relevant factors include commercial knowledge, experience, sophistication, and independence. Bank of Montreal v. Duguid (ONCA. Constructive notice of undue influence. The duty of a bank to find and avoid undue influence) Facts: The pltf wife signed a promissory note for her husband. The husband subsequently defaults and they separate as well. Bank seeks payment from pltf wife. Holding: The pltf must pay the loan Reasons and what this case stands for: A contract may be set aside if the other party has actual or constructive notice of the risk of undue influence. Constructive notice occurs when: the transaction on its face is not to the financial benefit of the spouse; AND there is a substantial risk that the spouse has committed a legal or equitable wrong. In other words, the husband/wife are in a relship which raises the suspicion of undue influence To avoid trouble, banks should: meet with spouse privately explain extent of liability warn of the risk; and urge the person to obtain ILA Where UI is probable, bank must insist on ILA. If a bank has actual knowledge of UI, it likely cannot rebut the presumption despite advising ILA, etc, and it should not deal with that client. Note: Failing to do the above doesnt make the agreement invalid. It means the bank doesnt have a defence when it turns out there is actual or presumed UI. Applying the above principles to the case at bar, the court upheld the guarantee. It found that: Bank did not have a duty to disclose an opinion as to the quality of the investment Bank had a duty to inquire as to whether or not there was UI. It failed to do so and therefore had constructive notice of the potential. However, there was no evidence that the pltf wife reposed trust and confidence in the husband. She did not leave decisions on financial affairs to him. The pltf wife was a realtor and would have understood the significance of signing the loan (free and independent mind). Comment: The dissent would have overturned the agreement on the basis that the wife had strong emotional ties to the husband she feared damage to the marriage if she did not sign. Refer to Weigers, Economic Analysis of Law and Private Ordering the emotional element of a marital relationship is not emphasized enough in our law. Also, according to the dissent, her being a realtor is not determinative. It offers no evidence as to her level of knowledge. Quick note on the feminist view: Requiring ILA doesnt resolve the power imbalance. The wife will likely sign away any way, even if it isnt in her best interest to do so. Unconscionability The basic test per Morrison v. Coast Finance (BCCA, 1965) with factors applied from other cases: Note: These considerations are made at the time the bargain is entered into. Unconscionability is considered only at time of contract formation. Inequality of bargaining power Factors: Relationship of trust/confidence (Bundy) Weaker party relies on the other and the other knows it (Bundy) Relation with family members No legal advice (Bundy) Language barrier (Lidder) Lack of sophistication (Lidder. For instance, Lidder is uneducated man, ICBC is sophisticated monopoly) Initiating a meeting on short notice (Lidder) Dissuading the other from seeking ILA, including misleading the other about the benefit of ILA (Lidder. The court hated this one) Degree of need and the availability of options Opportunity to read the terms access/speed of transaction Whether terms are intelligible or in plain language, whether misleading and/or usual/unusual The person with a superior bargaining position takes advantage of that position and gets the other to sign a substantially unfair agreement Factors: Inadequate consideration (Bundy) giving substantial life savings to a financial venture not worth saving Misrepresentations about material facts (Lidder) Assignment of risk: Did the contract assign risk to the party least able to safeguard against the loss without compensation for this fact (e.g., reduced price) Mere inequality of bargaining power is not sufficient. The claimant must also prove that the bargain was substantially unfair. Inequality of bargaining power may be overcome by obtaining ILA. Unconscionability Private versus Public grounds Private grounds: Duress, undue influence, and unconscionability are all said to reflect private grounds for refusing to enforce a contract: the specific bargain of these parties is unfair. Public grounds: Contrary to public policy. However, there are other grounds for refusing to enforce a contract that are said to be public in nature. One of the most important of these is a contract that is void as being against public policy. Henningsen v. Bloomfield Motors (American case. Contextual analysis to finding inequality of bargaining power) Not picked up heavily in Canada. But its noteworthy for its contextual analysis of bargaining power: Nature of product essential like a household utensil? Market domination only a handful of sellers (monopolistic)? No options? Cartelization (standard forms used by all manufacturers)? No real competition? Superior knowledge repeat player; both in terms of K drafting and litigation Resources money; access to legal services advertising did it create a certain expectation of the product thats subsequently denied through contract? Did the advertising distort expectations by giving a certain impression of some characteristic (e.g., safety)? Law ability to contract out of common law or statute (this points to power imbalance) silence of the law: absence of consumer protection legislation inability for the consumer to access legal services Consumer Protection Legislation (IMPORTANT if a question regards a consumer transaction) Policy Reasons for Consumer Legislation To ensure fairness and to protect consumers in cases of monopoly (competition laws) externalities: (regulation of safety hazards and pollution) Informational failures: (where there are asymmetries in information, particularly with complicated products, Competition Act, Food and Drug Act, etc, protect against fraud and deceptive practice, and impose disclosure requirements and mandatory government education) Transaction costs: cooling off periods, cancellation rights, etc, far cheaper than dealing with complaints/litigation Paternalistic concerns: transaction may not be in consumers best interest in the long term (e.g., cigarettes) and so government may need to step in with mandatory requirements (e.g., labeling on cigarettes about the dangers) Redistributive concerns: rent controls, statutory warranties, etc, reflect distributive concerns Business Practices and Consumer Protection Act (relevant sections are in supplementary materials. BRING THEM for exam) As applied to the exam, these Acts are used for issues of deceptive acts and practices and unconscionable transactions in a consumer transaction Two big points about these acts Section 3: Any waiver or release of the protections of rights, etc, under these acts is void except to the extent that the waiver is expressly permitted by this Act Reversal of burden of proof: Supplier has burden of proof to show that it did not commit or engage in a deceptive or unconscionable act or practice (Sections 5(2) and 9(2)) NOTE: If the sale regards a used good, these Acts may not apply in the same way. Usually cannot contract out of these Acts when it involves new goods sales or leases. Rushak v. Henneken (BCCA: Duty for suppliers to disclose when they have specific negative information that may or may not be accurate about the product) Facts: The dealership knew the used car came from an area in West Germany where many cars had rust problems. It also knew that an undercoat was applied that could be covering up rust damage. The dealership said that the car was one of the best and that the undercoat seemed to look good. However, it advised the buyer to get it inspected, but only offered a general warning and did not disclose the vehicles specific history. The buyer did not undertake an adequate inspection and found severe rust damage later on. Holding: The dealership is liable for the cost of repairing the rust damage Reasons: No undue pressure was put on the buyer to buy. There wasnt necessarily a deliberate intention to deceive. But the dealership committed a deceptive act under the Trade Practice Act. Puffery cannot excuse the giving of an unqualified position as to quality when the supplier has factual knowledge indicating that the opinion may in an important respect very well be wrong The dealership should not have described the car as a good vehicle one of the best of its kind and very nice without noting that there might be extensive rust under the new undercoat. The dealership knew that an intrusive inspection (removing the undercoat) would be needed to find the true extent of the rust damage, yet it failed to advise the buyer. Had the dealership advised this sort of inspection, it likely would have been off the hook. What this case stands for: In a consumer transaction, where the supplier has factual knowledge of a likely latent defect of great importance, it must disclose this fact to the buyer. Note that this case doesnt apply to circumstances where the supplier has an honestly held opinion about the car and lacks specific knowledge that such an opinion might be wrong. Illegality Quick note on penalties and forfeitures Law and Equity Act Relief against penalties and forfeitures The court may relieve against all penalties and forfeitures, and in granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit. Distinguish between liquidated damages and penalties Liquidated damages are a fair/genuine pre-estimate of damages. Penalties are extravagant/unconscionable in comparison to the loss that would have normally occurred Example: House being built. Liquidated damages clause for delay: $150 per day = cost of hotel and storage of furniture. Reasonable? $2000 per day = likely a penalty Forfeiture: Agreement to lose $200 if you fail to pay $100 by March 31. Illegal penalty Note: Courts reluctant to find penalty with contracts between sophisticated commercial entities. Illegality Courts may decline to enforce a transaction because it violates public policy as expressed by the common law or by statute. The question is when public policy overrides the contracting parties interests. Easy cases: Criminal law: Contracts for drugs, blackmail, murder, etc, are unenforceable. Specifically worded statutes: The statute may specifically state that no remuneration may be earned if the individual is not licensed or permitted by the Act (Real Estate Services Act). Hard cases will regard trivial illegality or where the statute does not address how contracts are affected. For instance, unlicensed plumbers doing minor plumbing jobs. Common law illegality: Courts can refuse to enforce a contract contrary to public morals: contract to commit a tort contract injurious to public life the sale of public offices Older cases: Courts have refused to uphold co-habitation agreements or insurance policies on brothels. Statutory Illegality: The classical approach was unreasonably rigid. See Rogers v. Leonard (1973 Ont. HCJ) where the court refused to enforce a real estate contract because it fell on a Sunday contrary to the Lords Day Act despite full knowledge and consent of the parties. The modern approach under Sidmay Ltd. v. Wehttam Investments states the statute must first be properly interpreted. Not being in administrative compliance with the Act doesnt necessarily make the contract void. Do the offences created by administrative non-compliance regard contracts? For whose benefit was the legislation passed? The modern approach under Still v. Minister of National Revenue (1998 FCA): A court will not enforce the contract when, in all circumstances of the case, it would be contrary to public policy, reflected in the relief claimed, to do so. Courts will factor in the consequences of voiding the contract, including the social utility of the consequences and the determination of the class of persons for whom the prohibition was enacted. Back to the plumber example: The court probably would not enforce a contract where the person acted like he was licensed yet he was not, and carried out a substantial job (requiring a permit for instance). The court probably would enforce a contract where a handyman repairs a toilet, fixes a sink, etc, with the customer fully knowing that the handyman is unlicensed. Framework/strategies for certain question types (START HERE): Employment law, wrongful dismissal, constructive or direct READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS assuming the employee was wrongfully terminated, either directly or constructively mitigation did the employee have an opportunity to mitigate damages? If so, he/she will have to take reasonable, but not extraordinary steps to do so. The employer will have to prove that the employee did not mitigate as the employee should have Payzu: a plaintiff may be required to have continued dealings with the defendant, but often not in the case of employment contracts (i.e., employer accuses employee of theft) in this case however, there was no animosity or tension, no criticism of the employee, court would likely find she had to keep working with the employer was the method of termination so heavy handed and disreputable that it made it more difficult for the employee to find a new job? This is a defense against mitigation and may require a longer notice period (Wallace bump up) Injunctions in employment contracts READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS three requirements for an injunction contract must have a negative covenant does the contract contain a negative covenant? If It doesnt could one be implied? (Lucy) e.g., argue that employees shouldnt compete for customers with their employer Counter argument against implying one: Is it a full time job or part time? Is it a contract job? Whats the nature of the employment (an experienced free lancer will obviously want to work elsewhere if he works part time) damages must be inadequate or too speculative Could the employer simply claim the amount of profit if a specific account was lost? Then damages would be adequate Counter argument: employer argues they are losing incidental benefits, e.g., reputation, referrals, etc? Difficult to calculate these damages Could the employee release confidential business information of the employer? This too points to speculative damages result of injunction must not be tantamount to specific performance (Warner Bros) could employer argue that the injunction only tempts the employee to work for him and not compels him (Lumley)? Counter argument: courts in recent years have relaxed the compulsion requirement, even prohibiting someone from pursuing their chosen occupation is compulsion (Warren, Page One) Factors that further argue for compulsion: complexity of the job, whether the employee is employed only part time Note however, that in cases where the def was to do something (e.g., paint a pic) and did so and fails to deliver, specific performance may occur. Breach of contract resulting in a potential damage claim (including non-pecuniary damages) READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS But first, why not equitable remedies like specific performance? Did question say not to consider them? Is it not a unique good, etc? General policy framework Protecting the reasonable expectations of the plaintiff Not placing an unfair burden on the defendant Mitigation: should pltf have mitigated? How? Doctrine of Election? Anticipatory Breach? Supply/demand issue making mitigation a requirement or unnecessary? Two forms of damages that could be sought Monetary normal damages Can restitution damages be claimed? Articulate what they would be. Disgorgement of profits? Or, payment for services rendered when the wrong service is rendered for the purpose of earning more fees. Are these damages too remote? Go through remoteness section. First, can expectation damages be claimed? Articulate what they would be. This puts the pltf in a position as if the contract had not been breached. This could be the cost of performance. Remember, a chance at a profit is compensable, although to a lesser degree. However, there must be a measurable chance of profit. One could also argue that the chance of a profit wasnt reasonably foreseeable. Are these damages too remote? Go through remoteness section. If expectation damages are too uncertain, one can only claim reliance damages (Anglia). Articulate what those would be. They could be pre-contract expenditures for instance (Anglia). Pre-contract expenditures must be reasonably foreseeable. Remember, reliance damages cant exceed expectation damages and so the def may want to argue that pltf is only entitled to these. Are these damages too remote? Go through remoteness section. Counter argument: Cost of performance exceeds the value gained, diminution in value (Peevyhouse). Was the breach incidental or primary to the contract? Supplementary arguments: expectation damages would sanction economic waste (Ruxley, Jacobs) No bad faith, an innocent breach Def. was not unjustly enriched (or was he? Provide counter, counter argument in that case) Would expectation damage award unjustly enrich plaintiff? could pltf argue that the breach wasnt incidental to the contract? That it was primary? Courts must enforce sanctity of the contract. further arguments. Bad faith is irrelevant, contract law is about compensation to plaintiffs not penalizing defendants was intentional of contract non-pecuniary? Peevyhouse wouldnt apply in that case argument that something is not incidental to contract: insistence on the clause, or paying more than market value In that case, entitled to consumer surplus at least Could pltf say the lost items had special and unique value (Sooter and Ruxley) and thus warranted additional compensation? Could defendant argue unfair surprise if clause was unusual? Would a reasonable party to the contract, given his/her expertise, recognize if it was an unusual clause? Were damages reasonably foreseeable (Hadley)? Also discuss communication of special circumstances, and payment for them, and special knowledge of defendant (if he had any) Policy arguments? Would it be fair for the def to have to pay damages here? Non-monetary damages (non-pecuniary, mental distress) *CITE WHARTONS THREE PRINCIPLES IF ARGUING THIS. REFER TO OUTLINE * Policy: Courts reluctant to grant damages for mental distress (Addis), tort law is the normal avenue Remember, some costs that are related to non-pecuniary (counseling, medication) are properly categorized as pecuniary Exceptions (see outline). Was object of contract to secure psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties? Could pltf claim this was a peace of mind contract? Consider age of pltf. Consider statements like rest assured or youre in good hands. Distinguish such statements from fluff. Could pltf claim this was an enjoyment contract? Counter argument: there are very few examples of enjoyment contracts and courts do not wish to expand this definition. Could pltf claim this contract was to enhance reputation? Did the breach result in sensory unpleasantries? See outline Do the mental damages suffice to warrant compensation? Merely being annoyed is not enough. Was defs conduct tortious or independently actionable? Aggravated damages perhaps (ALWAYS consider this) Was the distress based on special circumstances that were made reasonably foreseeable (by paying more for instance, cite Hadley)? Could def. counter by saying that he was not aware of those circumstances (not communicated)? Could pltf argue that communication was implied by paying more? Could def counter that the additional payment was for something else? Discuss reasonable foreseeability and refer to (Victoria) Could pltf argue that def knew him and should have known better? Could def argue that cases involving reasonable foreseeability for non-pecuniary damages are unusual (Newell and Weinberg) or narrow (Insurance contracts) and ought to be distinguished on their facts? Punitive damages???? Careful to not identify it when it was actually a tort. Is there a binding contract (focus on relational contracts)? READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS Policy Considerations Was there reasonable expectation that the service will be provided? Or would that constitute unfair surprise? Is there evidence the promise was made? Was there deliberation? Or was it just an informal promise. Arguments for deliberation are that they took into account special circumstances Would not finding a contract unjustly enrich the def? Was there substantial and reasonable reliance? Private ordering or utility of enforcing the contract: if it was a clear commercial context and if notions of consumer protection apply, a contract ought to be found should plaintiff have mitigated? How? Doctrine of Election? Anticipatory Breach? was there a clear offer and acceptance? Or was it merely an invitation to treat? If invitation to treat, when would it/should it become a contract? How might defendant counter argue this point? Could it be argued to be just a casual, point of information made by the def. and with no intention of being bound by it? Was it a bilateral exchange? If so, what were the promises? could it be argued that it was a unilateral contract? If so, how would that be articulated? What appears more likely to a court unilateral or bilateral contract? what was the consideration? Consideration must be a benefit or detriment (to plaintiff or def, depending on circumstances) or a mutual exchange of promises that have value Could it be argued that the promises were made after the first contract was already made? In that case, those promises wouldnt be binding on the first contract. However, it could create a two contract situation, e.g., a contract to buy the computer (first contract), and a contract to service it (second contract) could it be argued that it was a framework agreement (GNR)? Was there consideration for the framework? If so, could the defendant revoke it due to lack of consideration? What if a request for service/supplies is made under the framework agreement? Will that be binding? could it be argued that an essential term was uncertain or vague and therefore making the contract unenforceable? Counter arguments: good faith negotitations would solve the problem (weak, see Courtney). Or, a formula offers certainty. Counter argument: courts dont like to make bargains for the parties . Courts more likely to find this if there hasnt been a long term relship and no evidence of severe reliance and unjust enrichment Or, there is an arbitration clause that will ultimately solve the problem. Or could the court imply something into the contract? Is there a binding contract (focus on gifts)? READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS general policy framework reasonable expectations of the plaintiff avoiding unfair surprise to the defendant the test for determining whether a communication was intended to be legally binding is objective (Smith v Hughes) did the parties contemplate an exchange. If so what was being exchanged for what? Could def argue he did not intend to be bound and that it was an invitation to treat or a non-binding gift promise? Should plaintiff have mitigated? How? Doctrine of Election? Anticipatory breach? could def argue that the terms of the offer were uncertain and vague? If so, how? Consider things like time of delivery, the status of the promised gift if circumstances change. Could the courts imply something into the contract? could def argue that it was a unilateral contract? State how it would appear that way counter: courts find bilateral contracts where it can (Dawson) and that a bilateral contract appears more likely counter: potential for unfairness. There was a mutual exchange of promises, so what if one doesnt appear to be of equal commercial value. Return promises are good if they are value. Counter: mutual cooperation is required. Therefore, it is a bilateral contract Counter: implied promise not to revoke (Errington) Counter: reasonable reliance (explain how) underlying policy factors is there good evidence of a contract? Must the contract be in writing? Did def revoke offer? Could point to a contract then Was there deliberation? Or was the offer made in a casual, informal situation, coffee talk. If this was the case, there might be an intention to be bound issue and the judge could scrap the agreement Would there be unjust enrichment if the contract wasnt enforced? How? Were there reliance damages? How might principles of pre-contract expenditures apply if so? Is this a type of contract courts should enforce or should be left to private ordering? Is there social utility for it? Or should courts be reluctant to enforce gift promises. Is there a binding contract? READ THE QUESTION CLOSELY. PICK OUT ALL THE FACTS STATE THE ISSUE, THE PRINCIPLE, AND APPLY TO THE FACTS general policy framework reasonable expectations of the plaintiff avoiding unfair surprise to the defendant Policy Considerations Was there reasonable expectation that the service will be provided? Or would that constitute unfair surprise? Is there evidence the promise was made? Was there deliberation? Or was it just an informal promise. Arguments for deliberation are that they took into account special circumstances Would not finding a contract unjustly enrich the def? Was there substantial and reasonable reliance? Private ordering or utility of enforcing the contract: if it was a clear commercial context and if notions of consumer protection apply, a contract ought to be found should plaintiff have mitigated? How? Doctrine of Election? Anticipatory breach? was there a clear offer and acceptance? Or was it merely an invitation to treat? If invitation to treat, when would it/should it become a contract? How might defendant counter argue this point? was it a bilateral exchange a mutual exchange of promises? If so, what were the promises? could it be argued that it was a unilateral contract? If so, how would that be articulated? What appears more likely to a court unilateral or bilateral contract? what was the consideration? Consideration must be a benefit or detriment (to plaintiff or def, depending on circumstances) or a mutual exchange of promises that have value could the defendant have revoked the contract? Was it a standing offer that could have been revoked (GNR)? Could it be argued that the promises were made after the first contract was already made? In that case, those promises wouldnt be binding on the first contract. could it be argued that an essential term was uncertain or vague and therefore making the contract unenforceable? Counter arguments: good faith negotitations would solve the problem (weak, see Courtney). Or, a formula offers certainty. Counter argument: courts dont like to make bargains for the parties . Courts more likely to find this if there hasnt been a long term relship and no evidence of severe reliance and unjust enrichment Or, there is an arbitration clause that will ultimately solve the problem.     Page  PAGE 1 of  NUMPAGES 89 Page  PAGE 94 of  NUMPAGES 89 789:YZ[uvwxyz{|}үtgMҔ2jh}h}>*B*UmHnHphuh}5CJmHnHu j}h}UmHnHujh}UmHnHuh}mHnHu *hIh}0JmHnHu2jh}h}>*B*UmHnHphuh}mHnHuhIh}0JmHnHu$jhIh}0JUmHnHuh}jh}U{' , K  s .7;/{" !  !  !  ! N     ! 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