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Underlying criminal law and civil law
Basic principles underlying contract law
Definition of a contract:
An agreement between two or more parties that is binding in law
The contract generates rights and obligations that may be enforced by the courts
The normal methods of enforcement is an action for financial damages for breach of contract
Bilateral contracts
Involve promises by each
party Unilateral contracts
Involve one party promising to do something in exchange for an act of the other party
Ex. An award
Basic principles of contracts include
1. Always about commercial relationships
2. Courts assume that you mean what you say and they are not interested in second guessing you
3. If it looks like an agreement, it almost always is one
4. Courts generally not concerned about the fairness of a contract
5. Written contracts carry great weight
6. We often have little control over the content of most contracts
Damages
Where a contact is breached there are several remedies
o Most common is monetary compensation or damages
A claim for Quantum meruit is a claim for reasonable remuneration
o As much as they deserve
Any unusual or unexpected losses that could not have been foreseen by the breaching party are
not included in damages
Damages may be adjusted if the plaintiff fails to limit losses
o Occurs in the case of contributory negligence
Injunction
Can be used to make a person stop what they are doing if it is inconsistant with the terms of the
contract
Specific performance
Courts may order the breaching party to finish the work under the contract
Three ingredients to a contract
1. The parties much reach an agreement
2. They must intent to be legally bound
3. Both parties must provide valuable consideration
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Certain people in society are vulnerable so their freedom to bargin and enter into legally binding
contracts has been limited or eliminated
Undue Influence
1. Making threats of violence, imprisonment, blackmail to force someone to enter an
agreement
2. Considered wrongful conduct and may affect the validity of the contract
3. Often due to someone having higher power over the other
Terms of the contract
Consist of various statements, promises and stipulations
Misrepresentations
A false statement of the fact that induces a person to enter a contract that they would otherwise
not enter
Exclusion Clauses
Inserted into a contract aims to exclude one party's liability for breach of contract,
misrepresentation or negligence
Discharging the contract
Performance
Agreement
Frustration
Breach
The corporation
Exists under an act of parliament
Legal entity separate from the owner
If corporations go bankrupt you cannot get money from the CEO, shareholders or the board of
directors
Basic principles underlying criminal law and civil law
Criminal Law
Crime is defined as an offence against the public as represented by the government
Offences in criminal courts are prosecuted by the crown attorney who represents the queen
The criminal code is a federal statue
Its main goal is punitive
Deterrence theory
o is based on the assumption that society can maintain social order and control people
through fear
o Retribution, denunciation and rehabilitation are other principles of sentencing
Value consensus theory
o Society has shared values and definitions of right and wrong
o Prohibitions found in the criminal code of Canada are thus similar to those found in
other countries
Criminal law is meant to apply to all citizens who are equal in the eyes of law
The phase "rule of law" illustrates that law should be applied fairly and impartially
Other principles include the following
o Laws must be enacted and on the books
o Laws must be clear
o A criminal offence consists of the act (actus reus) and the intent (mens rea)
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The crown attorney must prove that the accused committed the act with the
requisite intent and is guilty beyond reasonable doubt
The defence attorney only has to raise reasonable doubt to gain an acquittal
o Criminal law must be administered according to the values underlying a due process
model and be consistent with the charter of rights and freedoms
o Courts will typically disallow evidence obtained illegally or in violations of an
individuals rights
o Officials of the criminal justice system are directed to use the least coercive methods
possible in dealing with offenders
o Trials typically allow the victim little involvement and limits their role to that of a witness
o Criminal laws are highly symbolic as the represent society's view of behaviour
o Criminal convictions represent a moral condemnation by society
o Criminal convictions carry a heavy stigma
o Attributes personal responsibility for the crime
Civil Law
Most laws relating to torts and contracts are provincial
Individual responsibility or collective responsibility for the
crime Plaintiff can sue an individual, corporation or the
government Very little stigma attached to civil suits
Seen as a contractual dispute and does not require moral turpitude
Designed to compensate victims for their injuries at the hands of another
Non-fulfilment of a contract
Torts refers to issues, losses and injuries that arise in the absence of a contract and that result
from harmful or negligent behaviour on the part of the defendant
Contracts must have several elements of be valid
An agreement in which there is an offer and an acceptance
Consideration in which both parties receive a benefit
Intention and capacity to understand the agreement
Legality
Discharge or completion
The burden of proof in civil matter is significantly less than criminal law and requires only
that the plaintiff establish fault based on the balance of probabilities
Meant to be impartial
Typically heard by judge alone but jury trials are allowed in cases involving personal
injury Prison sentences are not allowed
If the defendant is found to be at fault the judges can make 3 rulings
1. The defendant must pay some or all of the damages claimed by the plaintiff
2. The defendant must provide the goods or services claimed by the plaintiff
3. The judge may provide the defended from continuing certain activities
Negligence
Principle in criminal and civil cases
Both the act of intent must be present in the case of negligence
In contract matters, the court attempts to determine the intention of the parties when they
entered into the contract
The court generally doesn't concern itself with the fairness of the barging that was struck
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