...Structure for Dealing with Parol Evidence/term /term/representation/condition/warranty questions (1) Decide whether the parol evidence rule applies. The rule only applies if we have a document that seems like it is a complete contract (containing all necessary terms) between the parties, and someone is trying to introduce new oral statements as terms. The court will not do this (the new statements are not contractually enforceable- they are not part of the written contract) unless one of the following exceptions applies: (i) an error is made (mistake) in the written document that needs correcting (Pukallus v. Cameron) (ii) the term was VERY important ( see the white ant case, Van den Esschert v. Chappell) or (iii) there is a collateral contract (2) If the parol evidence rule applies and there are no exceptions, then the oral statement is not a term. End of analysis (unless something like negligent misstatement applies). If either the parol evidence rule applies but there is an exception OR the parol evidence rule does not apply (for example, because the written agreement does not appear on its face to be a complete agreement), then you need to move on to discuss whether something is a term or a representation. (3) to determine whether a statement is a term or representation, you need to consider the three-part test set out in Handbury v. Nolan, where something is considered a term if the following 3 conditions are met: (a) we can verify the truth of the statement...
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...CHAPTER ONE: RISK MANAGEMENT AND SOURCES OF LAW Jurisdiction: a geographical area that uses the same set of laws (Quebec has a civil law jurisdiction compared to the common law jurisdiction that the rest of Canada has) PUBLIC LAW Constitutional Law: basic rules of the political and legal systems Administration Law: creation and operation of administrative agencies and tribunals Criminal Law: offences against the state Tax Law: rules that are used to collect money for the purposes of public spending PRIVATE LAW: 1. Law of Torts: A tort is a private wrong Split into three categories: intentional torts (assault or false imprisonment), business torts (deceit and conspiracy), and negligence (when one person carelessly hurts another) 2. Law of Contracts: Concerned with the creation and enforcement of agreements Example: contracts are used in "the sale of goods", "the use of negotiable instruments (i.e. cheques)" 3. Law of Property: Concerned with the acquisition, use, and disposition of property Split into three categories: real property (land, and things attached to land), personal property (things that can be moved from one place to another), and intellectual property (things that consist of original ideas (patents and copyrights) "the law of succession": distribution of a person's property after death "the law of trusts": when one person holds property on behalf of another SOURCES OF LAW: 1. Constitution: the document that creates...
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...1.0 Jenis Modal Modal Dibenarkan/ Nominal Modal yang membenarkan ssb syarikat boleh didaftarkan dan dibenarkan beroperasi S62(1) AK 1965: Modal nominal boleh ditambahkan asalkan dibenarkan dalam artikel syarikat dan melalui resolusi biasa. Modal Dikeluarkan Sebahagian modal nominal dikeluarkan kepada pemegang syer. Modal nominal tidak perlu dikeluarkan semua secara serentak. Cth: Modal nominal 2m Modal dikeluarkan 1.7m Modal Berbayar Modal dikeluarkan yang telah dibayar secara tunai oleh pemegang syer. Cth: Modal nominal 2m Modal dikeluarkan 1.7m Modal berbayar 1.36m (80 sen per syer) Modal belum bayar Baki modal dikeluarkan yang belum dibayar oleh pemegang syer. Cth: Modal belum bayar 0.34m (20 sen per syer) 2.0 Prinsip Pembayaran Dividen 1. Dividen tidak boleh dibayar kecuali syarikat mengalami keuntungan semasa pengisythiran dividen. Ini bermaksud keuntngan hanya perlu apabila pengisythiran dividen dibuat dan bukan semasa pembayaran dividen dibuat. Jika syarikat mengalami kerugian semasa pembayaran dividen, syarikat masih perlu membayar dividen kepada ahli-ahli syer syarikat. Kes Marra Developments Ltd Developments mengiystiharkan dividen. Pada tiba masa pembayaran dividen, pengarah enggan membuat bayaran dengan alasan keuntungan tidak wujud. Mahkamah membuat keputusan bahawa keuntungan hanya perlu apabila pengisythiran dividen dibuat dan bukan semasa pembayaran dividen dibuat. Oleh kerana dividen telah diisytiharkan dan ia merupakan satu hutang...
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...somebody etc. Sale of Goods Act - condition and warranties. Consumer protection - Basic Overview of Procurement forms Sarah Mamoser Procurement - when company goes and buys smth; not legal obligation to procur. Tendering cases - construction projects; Contract A procurement stage contract forms when materially compliant bid is submitted there can be multiple Contract A if the owner receives multiple compliant bids -act in good faith (can’t use undisclosed material) -they must accept the lowest qualified bid - can use privilege clause (the owner has privilege to not accept the lowest bid) Various forms in procurement: (request for expression of interest (RFEOI) Request for proposal - now frequently for construction law (RFP) - owner choose to cancel RFP anytime (e.g. too expensive etc). RFP less risk, but less certainty, b/e it’s not bound by a contract. Tenders/Request for quotation (RFQ) - process set out to be TRANSPARENT - be in trouble if say we wanted to choose u, but it was too expensive. How damages determined - Expectation damages - difference between price to do the work, and the price between.... Procurement process - procedures fair and transparent. Things u want to do when working with the lawyer: Consider objectives and expectations, be prepared to talk about what ur concerns, what needs to be done. Giving instructions - agreement, letter. Learn risk factors. Raise concerns. Deadline(timeliness). - budget concerns. Wherever...
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... • Literal Rule There are three (3) principles of law that can be applied to interpret the law, where the Literal rule can be applied and if absurdity exist either the Golden or the Mischief rule can be used. The Literal rule considers the law as what it says where the natural meaning of the words are used for interpretation; this can be depicted in the case Regina v Barrymore where the defendant was charged with the offence of wounding with the intent to murder, however the learned magistrate of St John’s Magistrate’s court committed the defendant to stand trial on a charge of wounding with intent to do grievous bodily harm. The court however had no power to commit the defendant for any offence other than the offence with which he had been charged. • Golden Rule The Golden rule is an extension of the literal rule, giving either narrow or wide meaning to the law; the Narrow meaning can be exemplified in the case of Marilyn Spenser v the Attorney General (AG), where the appellants, members of the Executive of the Committee of the Hallelujah Square Tabernacle church submitted to the Attorney General (AG) articles of incorporation of the church as a religious non- profit organization. However, the AG rejected the request stating that a nonprofit company must be a commercial enterprise which is to be carried out without financial gain to its members. Wide Meaning on the other hand is used to give law a wider meaning, such as in the case of William Chaitam and Winston...
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...Week 1- Law 122 : Why study law 1. Business decisions have legal consequences which affect profits and losses: * Some decisions impose liability, others create opportunities * Negative: dumping pollutants into environment * Positive: binding contractual party to promise 2. Risk mgmt. tool: Law sets the framework for risk, it gives you tools to manage the risk * Ex. Insurance, exclusion and limitation clauses, incorporation Dimensions of course 1. 2. Risk mgmt. 3. Legal reasoning: rules and analysis 4. Law/ moral dimensions What is law? * A set of principle and rules that courts will enforce * A way of thinking (or reasoning) about these principles and rules better description. Process determines legal reasoning * It is not just the result of a case that matters. The reasons for the result are where law happens. Law is bound up in the reasoning. So it is important to ask “why” and “how” not just “who won”. Law vs. Mortality Law: formally sanctioned, illegal behaviour Morality: informally sanctioned, moral behaviour 1. 2. Immoral but not illegal * Lying to friends 3. Immoral and illegal * murder 4. Moral but illegal Ethical perspective 1.1 pg.6 Can I watch someone drop without incurring legal liability? If I can legally do it,should i? Ethically is it okay? Ethical reasoning: * Focus on why something is ethically right or wrong...
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...Chapter One: The Legal Environment 1. Business activities and the legal environment 2. Sources of American law 1) Primary sources of law * Constitutional law (The U.S. Constitution, state constitutions) * Statutory law ( federal statutes, state statutes, ordinances; uniform laws) * Administrative law (administrative agencies: federal, state, local) * Case law 2) Secondary sources of law * Books , articles 3. The common law tradition 1) Stare decisis * Two aspects * Controlling precedents (binding authorities) * Departures * Persuasive authorities 2) Equity * Remedy, courts of law(king’s courts), remedies at law(legal remedies) * Equity, chancellor, courts of equity(chancery courts), remedies in equity(equitable remedies) * Plaintiffs, defendant * Action at law, action in equity * Merging * Equitable principles and maxims 3) Schools of legal though Jurisprudence * The natural law school * Legal positivism * The historical school * Legal realism, sociological school 4. Classifications of law 1) Substantive law & Procedural law 2) Civil law & Criminal law 3) National law & International law Chapter Two: Constitutional Law 1. The constitutional powers of government 1) Federal form of government: national government and the states share sovereign power. 2) Separation of powers: a system of checks and balances * Legislative...
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...Payment - In ordinary parlance, payment refers only to the delivery of money. - In legal mode of extinguishing an obligation, it also consists of the giving of a thing (other than money), the doing of an act, or not doing of an act. - When debtor pays damages or penalty in lieu of the fulfilment of an obligation. When debt is considered paid Debt - May refer to an obligation to deliver money, to deliver a thing (other than money), to do an act, or not to do an act. 1.) Integrity of Prestation - A debt is not understood to be paid unless the thing or service has been completely delivered or rendered. Partial or irregular performance will not extinguish the obligation. - In case of partial performance there is no payment under the law and the creditor can refuse payment. - Creditor has the right to refuse partial performance or not to pay it. 2.) Identity of the Prestation - The very prestation due must be delivered or performed. - When existence of a debt is admitted by the debtor or established by the creditor, the burden of proving payment is upon the debtor. Requisites for when recovery allowed in case of substantial performance in good faith (article 1234): 1. There must be substantial performance. 2. The obligor must be in good faith. - Good faith is always presumed in the absence of proof. When recovery is allowed when incomplete or irregular performance is waived - Founded on the principle of estoppel. - The debtor is not liable for damaged suffered...
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...Ch5 Formation of a Contract: Offer and Acceptance An invitation is not an offer; a merchant is not obligated to sell to everyone who reads an ad (its supply may be limited) he is the offeree Both parties must be aware of the offer and counter offers, else any coincidental acceptance under the same terms still don’t qualify as an acceptance Protection against Standard Form Contracts 1. If business is regulated by govt board, its terms are subject to approval 2. Some segments of the public are offered special protection i.e. consumers 3. For unregulated activity, the public receives as much protection as the courts can find in contract laws All terms binding?- if offeree convinces courts that she wasn’t aware of a certain term, then the offerer must prove that it made sufficient efforts to make the offeree aware of it, else the offeree is not bound by it Contract terms on a sign must be evident to offeree AT the time of making contract How an offer may lapse: 1. Not accepted within specified time 2. Not accepted within reasonable time (if not specified) 3. Either party dies or becomes insane prior to acceptance Revocation Offeror may revoke an offer any time before acceptance, even if he promised elsewise. He must provide notice to make it effective Must revoke before it is accepted If offeree has sufficient reason to believe that the offer may have been revoked even without notice, the courts will consider it revoked Offeree Powers Can bind offeror...
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...My interpretation of law is that these are legally-backed rules of action and conduct that have been created to promote and protect the moral and ethical expectations of society. The primary sources of law are constitutional, statutory, administrative, and common---are found at federal, state, and local levels. Constitutional law is the foundation for all other law in the United States and is the supreme law of the land. Statutory law is created by a legislative body and approved or disapproved by the executive branch of government. Administrative law is the source of law that authorizes the exercise of authority by executive branch agencies and independent government agencies. Common law is essentially law made by the courts and that has not been specifically passed by legislature, and is based on the fundamentals of previous cases that had similar facts. There are also secondary sources of law which are intended to increase the level of uniformity and fairness across courts in all 50 states. Secondary sources of law have no independent authority of legally binding effect. The categories of law are as follows: Civil laws are designed to compensate parties for losses as a result of another's conduct. Criminal laws are a protection of society, and the violation of criminal laws results in penalties to the violator such as fines and imprisonment. Substantive laws provide individuals with the rights to create certain duties. s Public laws are those derived by...
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...Creation of the contract - If the person performs the conditions of the offer. Thus, a person who finds a lost dog fulfills the condition of the prize money and thus a contract with the owner of the dog is created. General Offer of Continuing Nature - Some offers such as finding a lost object close when it is accepted by the first person. However, some offers, such as in the Carllil case, it can be accepted by any number of persons until the closing date of offer or until it is retracted. Q. Describe the law relating to communication of proposals, their acceptance and their revocation. Section 2(a) of Indian Contract Act 1972 says that when a person signifies his willingness to do or to abstain from doing something to another, with a view to obtaining the assent of that another, he is said to make a proposal. Further, section 2(b) says that when the person to whom the proposal is made signifies his assent, the proposal is said to be accepted. The important point to note here is that the party making the proposal or the party accepting the proposal must "signify" their willingness or assent to the other party. Thus, a promise cannot come into existence unless the willingness or assent is communicated to the other party. Further, even the revocation, if any, must be communicated to the other party for it to take effect. Therefore,...
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...duties, and privileges that are consistent with the values and beliefs of a society or its ruling group. 2. Primary sources of the Law include: The U.s. Constitution of the various states. Statues, or laws, passed by Congress and by state legislatures. Regulations created by administrative agencies, such as the Federal Trade Commission and the U.S. Food and Drug Administration. Case law (court decisions) 3. Common Law: the body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature. Precedent: a court decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts. 5. State decisis( two aspects: Decisions made by a higher court are binding on lower courts A court should not overturn its own precedents unless there is a strong reason to do so *Precendents may be dropped because of social or technological changes. *Brown vs. Board of Education: white and blacks did not have equal education opportunities. Separate educational facilities- conclusion 10. preemption: Congress chooses to act exclusively in a concurrent area. 11. federal forms of government: national government and states share sovereign power. *Police powers-fire and building codes, antidiscrimination laws, parking regulations, zoning regulations, licensing requirements 12. Article I, Section 8 of the U.S. Constitution permits Congress...
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...International Humanitarian Law – jus in bello 1. Geneva Conventions The law in this area is covered by the four Geneva Conventions, signed in 1949 after the atrocities of WW2 and two additional protocols signed in 1977. 1. Geneva Convention on the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) 2. Geneva Convention on the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) 3. Geneva Convention on the Treatment of Prisoners of War (GC III) 4. Geneva Convention on the Protection of Civilian Persons in Time of War (GC IV) Protocols of 1977 – in response to the conflict in Vietnam 1. Protection of Victims of International Armed Conflicts (Additional Protocol I) 2. Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) 2. International Armed Conflict – application of the GC’s • International Committee of the Red Cross (ICRC) states that an armed conflict within the meaning of the Geneva Conventions is any difference of opinion between two states that leads to intervention or action by the members of their armed forces • Common Article 2 of GC (ie in all of them) states that it will apply: o To all cases of war, and armed conflict between two or more parties to the treaty (even if “the state of war” is not recognised by one of them) o To all cases of partial or total occupation of the territory...
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...individual by using the concept of “indirect effect” Von Colson v Land Nordrhein-Westfahlen [1984] ECJ Article 5 EC requires Member States to "take all appropriate measures" to ensure fulfilment of Community obligations. And this means that courts must interpret national law so as to ensure the objectives of Directive are achieved. This requires an effective remedy that has a deterrent effect and is adequate in relation to the damage sustained. A Directive cannot of itself impose obligations on private partiesMarleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECJ Therefore, national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive. This obligation applies whether the national provisions in question were adopted before or after the Directive; national courts were 'required' to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved. So, courts must do everything possible to interpret domestic law to comply with Community law. State Liability when there is no domestic law on a matter to which a Directive relates or domestic law is totally contrary to EC lawFrancovich v Italy [1991] ECJ Sometimes referred to as the 'Francovich Doctrine' or the 'Francovich Principle'....
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...reasonably foresee would be likely to injure your neighbour”? (Donoghue v Stevenson). Incremental Approach: 1. type of relationship between the parties; a) the vulnerability of the plantiff, b) degree of control of defendant, c) special knowledge of the defendant of the plaintiff’s situation. 2. the type of loss or injury (physical, psychiatric, economic) 3. policy and; 4. physical, casual and circumstantial proximity may still be used (Kirby, Modbury triangle shopping centre pty ltd v Anzil) “proximity is the best notion yet devised by the law to delineate the relationship of negibour” Proximity test involves a notion of nearness in the relationship between the parties. as a principle stated in Rylands v Flectcher, “identifying the categories of case…rather than a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing”. Sullivan v Moody applied tradtional common law approach “…although not determinative, is instructive”. Where duty of care will fail Policy(whether a duty of care exists. Public policy does not allow the following area, 1. legal practitioners in the performance of court work...
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