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1
Q

What are the main points of Stare Decisis

A
Definitional 
Structural Portions of Stare Decisis
History and dates 
Influences
3 C's - Certainty, Consistency, Continuity
Problems with SD
2
Q

What is the Definitional and Structural portions of Stare Decisis?

A

Definitional: Principle of law is found in precedence call ratio decidendi. Binds future court decisions.
Structural: Precedent cases must be followed. Courts subordinate in the hierarchy must follow the decisions of above courts. Rupert Cross book.

3
Q

What is the history of Stare Decisis?

A

Used and operated by custom until 15th century. People wanted consistency. 19th century House of Lords accepted SD.

4
Q

What was Stare Decisis influenced by?

A

Industrial Revolution
More intellect
More Rational and Positive
Printing press allowed for production of records.

5
Q

What are the 3 C’s of Stare Decisis?

A

Certainty - Must know what the law is
Consistency - a quality of treatment should be sought with similar cases being treated similarly.
Continuity- avoids the introduction of doubt into the system by not following precedence.

6
Q

What problems exist with Stare Decisis?

A

If one court makes an error it can persist and reduce certainty.
The ratios in which SD depends of aren’t clear and open to interpretation. Creates uncertainty.

7
Q

What is Agency and how does it manifest in Sole Pro., Partnerships and Corporations?

A

Agency is a relationship in which one person, known as an agent, is authorized to bring another party for whom they act, known as a principal, into contractual relations with third parties.

Might need one as a Sole Pro, can’t do everything.
Partnerships - all partners are both principals and have fiduciary duties.
Corporations - Board acts as agents for the shareholders.

8
Q

How do the principles of law of agency manifest themselves in business organizations?

A

Through agency by estoppel.
Apparent Authority - acquired from a past manner of transaction by the principal or from trade custom.
Three Areas:
1) Public was deemed to have notices of the contents in filed financials whether they have read them or not. Not used anymore.
2) Indoor mgmt rule - a person dealing with a corporations is entitled to assume its internal procedures are being followed.
3) Pre-Incorporation contract - a) the corporation is bound by the contract and is entitled to the benefits thereof as if the corporation had been inexistence at the date of the contract and had been a party thereto, and b) a person who purported to act in the name of or on behalf of the corporation ceases to be bound by or entitled to the benefits of the contract.

9
Q

What are the roles of the courts?

A
Arbiter of Constitution 
Interpreter of legislation
Protector of civil liberties
Arbitror of disputes between private persons
Arbitror of public law disputes
10
Q

The courts are the arbiters of 3 things - what are they?

A

The Constitution: Not actually assigned but respected. Federal - Two completely separate levels of government constitution was made in 1867, things have changed, confused jurisdictions.

Private disputes: People go to courts and have their disputes resolved.
Public Law Disputes: Criminal, constitutional, and administrative law.

11
Q

How do the courts interpret legislation?

A

Some things are unclear and need judgements made. Two approachs:

1) Plain meaning - dictionary definition
2) Liberal approach - look at the object of the statutes and the context they were made to make decision. Only use when necessary.

12
Q

How do the courts protect civil liberties?

A

BNA (1867) did not gives courts power over civil liberties. In 1982 with the charter of rights courts could protect liberties through interpretation. Gives court last word.

Basically, Charter of rights is generously worded, courts can interpret, and make any remedy they see fit.

13
Q

What the details of the Doctrine of Caveat Emptor?

A

Means “Let the buyer beware”. Buyers assume the risk for the conditions of purchases unless misrepresented. Buyer must take care and be reasonably careful. Some exceptions such as buyer can’t inspect goods.

Sale of Goods Act: Passed in UK parliament through statute, applies to all personal chattels. Contract needs to be in writing for anything over 50$.

13
Q

What the details of the Doctrine of Caveat Emptor?

A

Means “Let the buyer beware”. Buyers assume the risk for the conditions of purchases unless misrepresented. Buyer must take care and be reasonably careful. Some exceptions such as buyer can’t inspect goods.

Sale of Goods Act: Passed in UK parliament through statute, applies to all personal chattels. Contract needs to be in writing for anything over 50$.

14
Q

What are the implied conditions of the Sale of Goods act? (Caveat Emptor)

A

Sellers Title - In offering to sell goods, the seller implies they have the right to do so.
Description - goods sold by description will conform to the description.
Suitability and Fitness - The goods are of a type that is suitable for the purpose for which they are bought.
Sale by Sample: When a sample is provided the actual goods supplied will correspond.

14
Q

How was the Constitutional Act of 1982 Revolutionary?

A

Made changes to entrenched portions of the constitution including:
Office of the Queen
Supreme Court composition - Final Word
Amending Formula - So difficult no changes at all.
Charter of Rights - parliament has to honor civil liberties. If both prov and fed laws do not follow Charter of rights they aren’t in effect.

15
Q

The Constitutional Act of 1982 was not revolutionary because it made these small changes?

A
Domestic Amending Process
Charter of Rights
Subsection to the division of powers
Conference for aboriginal rights
Equalization payments
UK Separation sign off
Names of constitutional statutes changed
16
Q

How was the Constitutional Act of 1982 Revolutionary?

A

Made changes to entrenched portions of the constitution including:
Office of the Queen
Supreme Court composition - Final Word
Amending Formula - So difficult no changes at all.
Charter of Rights - parliament has to honor civil liberties. If both prov and fed laws do not follow Charter of rights they aren’t in effect.

17
Q

What are the problems with the Adversary System?

A

1) The parties are unequal - people that have more money can get better representation.
2) A self-interest group is tempted to cover some evidence, lie, and abuse procedure.

In Manitoba, Lawyers are not to take cases where they know what their client has done and would need to lie.

18
Q

What are the assumptions of the Adversary System?

A

1) Truth and justice is more likely to emerge from the investigation and presentation motivated by the self interests of the parties then from the judicial investigation motivated by official duty.
2) Most acceptable decision will come from third party without an psychological commitment to result.
3) Legitimacy means that the parties will have their day in court and opportunity to be heard.

19
Q

What are the problems with the Adversary System?

A

The parties are unequal - people that have more money can get better representation.
2) A self-interest group is tempted to cover some evidence, lie, and abuse procedure.

In Manitoba, Lawyers are not to take cases where they know what their client has done and would need to lie.

20
Q

What are the six elements of Negligent Torts?

Differences

A

1) Must be negligent - breach of standard of care.
2) Claimant must have suffered damage.
3) there must be a duty recognized by law to avoid this damage.
4) The damage must have been caused by the negligence of the defendant.
5) The conduct of the defendant must be a proximate cause of the loss.
6) conduct of the plaintiff should not be such as to bar his or recovery. Guilty of contributory negligence or Volenti.

21
Q

What are the similarities between intentional and negligent torts?

A

1) Test of causation is the same for both types of torts - Sine Qua Non - without there is nothing.
2) Same standard of proof - above 50%
3) Same Damage measurements - Special, general and Punitive damage.
4) Both focus on rewarded the victim rather than punishing the offender.

22
Q

Why is professional Liability Expanding?

A

Professional practice is expanding, higher chance of error.
More clients, more errors
Clients are more aggressive, litigious.

23
Q

What are the various forms of contractual misrepresentation which can both impugn and breach a contract?

A

Voidable under law of equity. Contract still exists and is enforced until it is declared otherwise. Can be passed to innocent third party even though the intermediate title holder acquired the title by means that render the initial transaction voidable.

Misrep within contract - a breach.
Outside: When misrep could be used to influence a party interested in entering the contract.

Only based on false assertion of facts and not opinions.

24
Q

What are the consequences and remedies for Misrepresentation?

A

1) Innocent - the party didn’t mean to misrep. Remedy: rescind the contract.
2) Negligent or 3) fraudulent - a party deliberately attempts to deceive. Remedy: Damages and rescission.

25
Q

What is the relationship between law and politics?

A

Laws are not value neutral, they manifest from the political/philosophical values of the law maker.

Politics create law through legislature. Elected officials of the legislature and the monarch (gov gens)

Essentially the laws are the crystallized product of the political process. Law is not unique, detached or discrete. Politics govern all throughout law. Legal philosophy is jurisprudence – manifestation of politics.

Laws make up the constitution which reflect political values that in turn define the political process.

Created under politicians that reflect current values.

26
Q

What are the consequences and remedies for Misrepresentation?

A

1) Innocent - the party didn’t mean to misrep. Remedy: rescind the contract.
2) Negligent or 3) fraudulent - a party deliberately attempts to deceive. Remedy: Damages and rescission.

27
Q

What is the relationship between law and politics?

A

Laws are not value neutral, they manifest from the political/philosophical values of the law maker.

Politics create law through legislature. Elected officials of the legislature and the monarch (gov gens)

Essentially the laws are the crystallized product of the political process. Law is not unique, detached or discrete. Politics govern all throughout law. Legal philosophy is jurisprudence – manifestation of politics.

Laws make up the constitution which reflect political values that in turn define the political process.

Created under politicians that reflect current values.

28
Q

What are the reasons Canada is not federal?

A

1) Ability to Disallow - Federal government can turn down any act by provincial leg.
2) Federal Government can appoint LG and province are denied ability to change that.
3) Reservation - Fed can take prov bills straight to Ottawa if they are the betterment of the Nation.
4) Fed can enact remedial legislation if RC or Protestants are deprived of their rights.
5) Fed appoints judges to final supreme court.
6) Charter of rights - judges interpreting it can trench on prov law.

29
Q

What are the reason Canada is a federal country?

A

Subject to two sets of laws
Statutes are entrenched.
Amending formula is out of either levels control.
Colonies are federally united under BNA act 1867.

Two judicial decisions favoring federalism:

  • Hodge vs. Queen - provinces are supreme within their own sphere.
  • Bank vs. Liquidator of NB - LG has all the powers of the crown.

JCPC made us more federal as an independent arbiter.

30
Q

What are the reasons Canada is not federal?

A

1) Ability to Disallow - Federal government can turn down any act by provincial leg.
2) Federal Government can appoint LG and province are denied ability to change that.
3) Reservation - Fed can take prov bills straight to Ottawa if they are the betterment of the Nation.
4) Fed can enact remedial legislation if RC or Protestants are deprived of their rights.
5) Fed appoints judges to final supreme court.
6) Charter of rights - judges interpreting it can trench on prov law.

31
Q

What are the advantages and disadvantages of Sole proprietorship?

A

Advantages: Ability to make all business decisions.
Right to all profits.
Right to deal with assets with interference.
Simple to set up and shut down.

Disadvantages: Liable for all liabilities, all assets exposed to creditors. Business income is added to personal and taxed at aggregate rate.

32
Q

What are the advantages and disadvantages

A

Disadvantages: Each partner is at risk to satisfy the contractual liabilites of the partnership.
All partners are agents and can create liabilities for the others.
Profits are shared.

Advantages: All partners take part in management.
Really easy to set up, hard to leave and dissolve.
Strong loyalty.

33
Q

Protections to take when opening business

A

Insurance
Place investments in creditor proof assets
Make estate plan to distribute business

34
Q

Define Implied Term in Contract Law and how do they relate to Wrongful dismissal?

A

Two Types implied terms - Statutorily implied terms and common law terms. An implied terms is a term that the parties don’t explicitly include but the courts recognize people should know through long established customs.

In wrongful dismissal - Reasonable notice for both termination and quitting. In determining reasonable notice many factors are used - length of service, occupation, state of economy. Severance can equal notice.

35
Q

Protections to take when opening business

A

Insurance
Place investments in creditor proof assets
Make estate plan to distribute business

36
Q

Define Implied Term in Contract Law and how do they relate to Wrongful dismissal?

A

Two Types implied terms - Statutorily implied terms and common law terms. An implied terms is a term that the parties don’t explicitly include but the courts recognize people should know through long established customs.

In wrongful dismissal - Reasonable notice for both termination and quitting. In determining reasonable notice many factors are used - length of service, occupation, state of economy. Severance can equal notice.

37
Q

What are two similarities between contract and tort law?

A

Both use principle of remoteness - whether the damages were foreseeable at the time of contract.

Both include an element of intention - plaintiff must prove intent, hard to do.

38
Q

What are the different types of damages that apply to both Tort and Contract law?

A

Special Damages - Losses that can be calculated up to a particular date.
General Losses - Cannot be exactly calculated.
In Contract - Punitive Damages - When one party was malicious and discretionary damages are rewarded.

39
Q

What are two similarities between contract and tort law?

A

Both use principle of remoteness - whether the damages were foreseeable at the time of contract.

Both include an element of intention - plaintiff must prove intent, hard to do.

40
Q

What is an ‘impugned’ contract and what are the grounds for it?

A

Voidable – missing an element or uncertainty, non est factum, mistake of subject matter, mistake of identity, errors in recording contracts or transcription.
Void – misrepresentation, duress, undue influence, diminished capacity. Unenforceable – requirement of writing: statutes of frauds, sale of goods act.
Unenforceable – requirement of writing: statutes of frauds, sale of goods act.

41
Q

What are the various types of consideration?

A

Contracts with appropriate consideration are void - missing an element. Various Forms:
Past Consideration - no consideration.
Existing legal duties: A is bound to B, B to pay A is not binding. Law recognizes this should happen.
Foakes and Beer - a creditor’s gratuitous reduction of debt for a payment is not enforceable, because no consideration was exchanged. The borrower will need to use some form of nominal consideration.

42
Q

What is intentional torts?

A

Intentional torts are: an INTENTIONAL act of PROSCRIBED HARM; cannot be reflexive or defensive; those torts which are caused with intention.
Can’t be liable (intent) for being:
Reflexive
Automaton: not as conscious state
Somna ambulens: sleep walking
Tort Feasor: the one who perpetrates the tort.