MANA FINAL

both parties must do something- contract of sale, you pay they give you something

a gift- nothing required in return

both parties can perform their obligations immediately- contract of sale

like a lease- can’t do all obligations at once- ongoing obligations from both parties

want something for a specific person

you don't care who specifically gives you what you need

Not an offer, just saying you have something for sale and that you are open to offers from public
- so you are not making an offer so its okay you ran out

Can set time limit of them to accept offer, but you are also bound to the offer you have made for that term- can not take back offer

Reasonable amount of time is pretty short

When the offer expires after a certain amount of time

Or when a counteroffer is made you can not accept the previous offer- the counteroffer is now the new offer

say nothing, but actions say they have accepted

The law where the offeror receives the acceptance is the one that applies

When you offer and the other person says nothing- means refusal

Tacit action does not mean silence

Must have a valid cause- the underlying reason to enter into contract can not be illegal or against public order

If it's illegal or against public order it is an invalid object

When error relates nature of contract, offer or essential elements

Honest error- both parties in good faith

inexcusable error

Only for minors and protected persons who do not have a guardian sign with them

1. A serious disproportion between what you gave and what you received
2. Patrimonial situation- no experience or understanding of cost of transaction and can not pay

no obligation for future, but you had an obligation for past- cancelling lease, you are obliged until set date

deemed never to have existed- no obligations ever, give back you received and get back what you gave

Standard form contract- strong party emposes terms to weaker party and not negotiable
Eg employment, insurance etc contract

where consumer (human being) gets property or services from a business that offers it to the public

In cases of doubt the contract is interpreted in favour of the weaker party and against the stronger party who wrote it

If a phrase is not understandable and it causes harm then it can not be enforced
Unless the stronger party can prove they had proved they had explained it to the weaker party

You can take a contract, take it to someone else who does same work, the 2nd guy charges more, you can sue 1st person for difference in price

Temporary, eg as soon as you sue you can get title frozen on house
Temporary until final judgement

Order someone to do something, to stop or not do it- eg selling house

cancelation of contract

You can always ask for seizures before judgement if you think they will flee or get rid

Compensation: bodily, moral, material damages only as a direct result of breach of contract- no speculative

Serve public knowledge function- send message not because you were harmed

Penalty clause- mostly with construction contracts
Fail to finish job in time- penalty for everyday you are late
Agreed in advance in contract, but judge is allowed to reduce penalty

Girous bought a property from Malik which he could not build on- not disclosed by Malik

committed fraud of omission, sale was annulled for fraud- got money back and 10,000 in compensation for fraud
Malik had to pay for judgement not withstanding appeal- special rule

Peters bought a restaurant from Fiasche
tax fraud for restaurant to be profitable

Says that Fiasche seems to have explains scheme to Peters so there is not evidence of fraud, Peters were voluntary participant in tax scheme, if there was an error involved then it is an inexcusable error

Invalid cause of contract so the contract is annulled- under 1422, give back what you gave and return what you received

Receives a notice in mail he won large amount of cash- scam

1,000 in compensation damages and 15,000 in punitive damages
reasonable persons knows this would be a scam- but it was in english

Copiscope drew up cancelation notices with TRM for 21 stores- inducing cancelation
non competition contract

Finds non competition contract to be unenforceable and will not grant injunction
Feels it is too unreasonable and broad burden of location (25 mile radius), there is no uniqueness to TRM’s business

know wrong from right- usually 7 years old

negligence/ carelessness
Gross negligence- reckless disregard for safety of others
Intentional fault- wanted to injure

Manufacturer of movable property are still liable even if object is added to immovable property

Retailers liable for defect like manufacturer
Consumers can sue retailers

Does not enforce the safety that a person reasonably
Poor design, problem with packaging, lack of explication of safety and dangers
Does not apply if product is not being used correctly

Defence for manufacturer

Victim is proven to have special knowledge and so they should have known better

Or where the existence of defect was not possible to be known a the time of the manufacturer and at the time of finding out they recalled the product and issued statement

Contract where you can't sue for any injury, damage or death no matter how this is caused
In reality only protect property damage, but you must prove negligence

Coat check situation in a club

Posted sign that they are not liable to lost or damage to coats

Verbal contract of deposit- in court must prove that sign was able to be seen by a reasonable person before they place coat

Beware of dog
Does not immediately waive liability, but help to minimise it depending on situation

Where the victim is partially or completely the author of their own injury
They should have known better

Where more than 1 person has participated in a wrongful act, each of the debtors will be held to 100% liable- but debtors can sue each other for their shares

Employee to bound to carry work in prudence, act justly and not use confidential information they may have gained through work

time, place, type of employment
employee undertakes not to work for similar in location
Reverse burden of proof- employer must prove they are breaching wording of clause and prove that the clause is valid- almost never enforced

employees internal complaint was not acted upon so they make that complaint public by telling government agency
you have breached your fiduciary duty- but legislation against firing/suing someone for whistleblowing in good faith

When there is an indeterminate date, can terminate at any time as long as there is reasonable notice

not when it is a serious reason- burden of proof on employer

The employee can never sign away their rights to sue for unfair termination
Can always ask for reasonable notice

If you sell your business as a growing concern the business continues (combine etc) the employees go with it

Dube had worked for 26 months at Volcano and he was terminated because of ‘economic reasons’ with 2 weeks notice- He says he is entitled to more time

the employee can not give up his right to reasonable notice, so Dube can sue for a more reasonable notice
Judge: says he is entitled to 18 weeks

Company is bought and Hassanie is fired. It is then revealed how he had once tried to purchase a competiting company.

What was once a 'firendly' firing is now for a serois cause so they will not give him notice or severance

defence 1: he looked into it but didn't buy the business
Defence 2: that was years ago and I told my boss at the time and he was fine with it (boss claims he never heard of it)
Defence 3: Constructive dismissal: when employer changes term of employment in hope that the employee to resign

since it is serious reason no notice or severance required

Lambert started working for copyfax in 1992 and he was fired in 2000 for setting up a competing business
Copyfax asked for 2 injunctions against him- confidential info and non competition
14 month long non competition clause (montreal and laval and 25 mile around those)

Non Competition clause can not prevent someone from earning a living
rea is prohibitif, 14 months is random and not necessary

Cabiakman gets job working for insurance company, 3 months later Cabiakman is arrested for extortion, he tells his employer, he is suspended without pay until judgement is over
refuse to give him money when his case is thrown out

because it is an administrative suspension and you have to pay worker

If it was to be an administrative suspension without pay this would constitute constructive notice

Dr. King was fired without cause from Biochem

Claimed they had given her previous warning- no proof and unconvincing evidence

Apparently in a meeting to reprimand her they had offered her more stock options- how does this make sense?

She was awarded 240,105.41 in damages

the court did not believe biochem