Law 294 - Chapter 9
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Law 294 - Chapter 9
Representations and Terms
What is a contractual term?
A provision in an agreement that creats a legally enforceable obligation.
What is a pre-contractual representation?
A statement one party makes by words or conduct with the intention of including another party to enter into a contract.
What is misrepresentation?
Flase statement of fact that causes the recipient to enter into a contract.
What is an opinion?
The statement of a belief or judgement.
What is a statement of future conduct?
a statement of fact.
Only an indication of a person's future intentions.
Does misrepresentation arise when you inaccurately describe a particular law itself?
No, everyone is presumed to know the law.
Does misrepresentation arise when you inaccurately describe a the consequences of a law?
Yes, the consequences are treated as a matter of fact and not a matter of law.
When would silence distort a previous assertion?
When something that was previously true has changed circumstances. This is a misrepresentation.
Would a statement of half-turth be a misrepresentation?
Yes. They tell half a truth and remain silent on the other half.
When contract requires a duty of utmost good faith is silence a misrepresentation?
Yes. One party is in a unique position to know the material facts.
When there is a special relationship between the parties is silence a misrepresentation?
Yes. When the relationship is one of trust (such as doctor), or when one party has influence over the other.
What is inducement?
The statement must have misled its recipient into creating the contract. It does not have to be the only inducing factor.
Does inducement still occur if it did not affect the repicients decision, even though the other party wanted to deceive them?
No. It must has affected the decision.
What is the only contractual consequence of misrepresentation?
What is recession?
The cancellation of a contract with the aim of restoring the parties, to the greatest extent possible, to their pre-contractual relationship.
What is restitution?
Involves a giving back and taking on both sides.
What is affirmation?
When the misled party declares an intention to carry out the contract or otherwise acts as though they are bound by it.
When is recession not available?
When the contract has been affirmed.
If restitution is impossible.
If it would affect a third party.
What are damages?
Intended to provide monetary compensation for the losses that a person suffered as a result of relying upon misrepresentation.
What is innocent misrepresentation?
A statement a person makes carefully and without knowledge that it is false.
What is the only legal remedy for innocent misrepresentation?
What is megligent misrepresentation?
A statement that a person makes carelessly or unreasonably. Do not need to know that the statement is false.
What is fraudulent misrepresentation?
When a person makes a statement that they know is false ot that they have no reason to believe is true or that they recklessly made without regard to the truth.
What is an express term?
A statement made by one of the parties that a reasonable person would believe was intended to create an enforceable obligation.
What is parol evidence?
Evidence that is not contained within the written contract.
When is parol evidence admissible?
To rectify or fix a mistake in a contractual document.
To prove that a contract was never really formed or is somehow defective.
To resolve ambiguities in the document.
To demonstrate that a document does not contain the parties' complete agreement.
What is a collateral contract?
A separate agreement one party makes in exchange for the other party's entry into the main contract.
What is the literal approach?
Assigns words their ordinary meaning.
What is the contextual approach?
Goes beyond the four corners of the document by looking at the parties' presumed intentions and their circumstances.
What is the golden rule?
Words will be given their plain, ordinary meaning unless to do so would result in absurdity.
What is the contra proferentem rule?
Ensures that the meaning least favourable to the author will prevail.
What is implied terms?
Arises by operation of law, either through the common law or under a statute.
Do applied terms arise from the parties themselves?
When will courts interfere with people's bargins?
When there is a gap or omission in the agreeement that can only be fixed with an implied term.
When is an implied term necessary?
1. It is an obvious consequence of the parties' agreement.
2. Required for the purpose of business efficacy.
Will the courts imply a term simply because it is reasonable or would improve the contract?
What happens when a statute implies a term into a contract?
The term is incorporated automatically without judicial intervention.
What are standard form agreements?
Mass-produced documents usually drafted by a party who is in an economic position to offer certain terms on a take-it-or-leave-it basis.
What is an exclusion clause? AKA limitation clause or waiver
Conractual term that seeks to protect one party from various sorts of legal liability.
What 3 things must be demonstrated for a exclusion clause?
1. Must be drafted in clear, unambiguous language.
2. Must be given reasonable notice of the term and its effect.
3. Other party must agree that the exclusion clause is part of the contract.
What is a ticket contract?
Incorporate certain terms, icluding exclusion clauses, into your contract by having them printed on the back of a ticket issued to customers.
Do the terms have to be brought to the customer's notice before/when the contract is made on a ticket contract?
Yes. They do not have to actually read them, but they must be given reasonable notice.
When does a customer indicate a willingness to be bound be its terms and the other party recieves some assurance that the agreement is enforcable?
When the document is signed.
When is a signed document not enforceable?
If the customer is required to quickly sign the document without enjoying a reasonable opportunity to study its terms.
What is a boilerplate clause?
A clause that is used repearedly without any variation.
What is legalesee?
A slang expression designating the formal and technical language of traditional legal documents. (VERY WORDY/HARD TO UNDERSTAND)