Contracts Mind Map

7/24/2019 Contracts Mind Map

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Is there a valid claim in contract in the civillaw?

Step 1 - Has there been an exchange ofconsents? (1385CCQ)

1.1 -Is there a valid o!er with all essentialelements? (1388CCQ)

1.1.1. - Cause (1410, 1411,Bruker)

A cause is the reasonparties contracted(1410).

A cause againstpublic order nullifies thecontract (1411).

1.1.2. -Object (1412,1413Bruker)

Object is thejuridical operationenvisionedby the parties (1412), broadly understood(Bruker).

An object againstpublic ordernullifies thecontact (1413,Bruker).

1.1.3.- Willingness to be bound uponacceptance (1388 CCQ,Lavoie, Richard)

Willingness to be bound will be determinedfrom perspective of reasonable observer(Richard,Lavoie).

O!er cannot be made by third parties (Lavoie)

1.2 -Is there valid acceptance?(1386,1387,1388)

1.2.1 - Did acceptance meet o!er in space &time?

1.2.1aWas there acceptance?

Acceptance ise!ectiveCommon Law is di!ere

Silence does not imply

Actions can imply con

In reward contracts, accperformance (1395).

1.2.1b - Was there expiry/revocation?

O!ers expires within a

Acceptance must be though, if not, it may

1.2.1.1 - Was there an attempt to revoke?

O!ers with expirbeforehand (139

A revocation thae!ective (1391)

Revocation can e!ectively recsin

1.2.2 -Does acceptance match o!er incontent?

There is no partial acceptanceof an o!er(Simon-Beaudry)

Acceptance to an essential term soambiguous that there no reasonableinterpretationwill not constitute acceptance

(Terrase Holdings).

Last shotin the battle of the forms wins(Simon-Beaudry).

Acceptance mustsubstantially correspondto the essential elements of o!er (1393)

Step 4- Following the rules ofinterpretation, has debtor failed to performobligation without justification (1590CCQ)?

Step 0 - Outline the situation

i - Identifiy the parties

ii - Identify the contractual relations

iii - Classify contracts

Adhesion

Consumer

Loan

iv - Identify potential defects and breaches(Rest of Diagram)

Step 3 - Is the contract relatively null, inwhole, because consent was vitiated(1398,1399CCQ)?

Step 2- Is the contract absolutely null, inwhole because it is against public order(1499CCQ)?

Step 5 - Or was the obligation extinguishedon a 1671CCQ grounds?

Step 6Have the parties made stipulations asto the extent of contractual duties,definitions of breach, discharging events,conditions, limitation or exclusion of liability?

Step 7 -If there is an unexcused non-performance, what remedies are available(1590 CCQ)?


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3/15


Step 1 - Has there been an exchange ofconsents? (1385CCQ)

Step 4- Following the rules ofinterpretation, has debtor failed to perform

obligation without justification (1590CCQ)?





Adhesion

Consumer

Loan


Step 3 - Is the contract relatively null, in

whole, because consent was vitiated(1398,1399CCQ)?

Step 3.1 - Was consent vitiated through fear/crainte(1399CCQ)?

Step 3.1.1 - Fear of serious injuryto personor propertyvitiates consent (1402)

Step 3.1.2. - Salvage contracts in good faithare valid (1404)

Step 3.1.3. -Apply the Lapierre Test(Lapierre)

(i) - But for the fear, party would not havesigned.

(ii) - There must be reasonable grounds forfear.

(iii) - The fear was induced through illegitimatemeans (violence). Or

(iv) - Fear was induced to achieve illegitimateends (abuse of right or something you had no

personal right to).

Step 3.1.4. - What are the consequences of

crainte?

(i) - Contract is relatively null, it can still beconfirmed (1419)

(iii) - If nullified, contract is deemed to neverhave existed and prestations must be

returned(1422)

(iv) - Restitution can be refusedif it would

give undue advantage to a party (1699).

(ii) - Party can apply to annul contract, claimdamages, or have obligation reduced (1407).

Step 3.2 - Was consent vitiatedthrough

Lesion?

Step 3.2.1 - Is this a situation where lesion

canapply?

(i) - Children or supervised adu

(ii) - Consumer Contracts (s. 8

(iii) - Loan contracts (2332)

(iv) -Abusive clausesin consum

contractsand contracts of adhe

(v) - Renunciation of rights in divo

474)

(vi) - Penalty clauses (1632)

Step 3.2.2. - Was there lesion as per 1406, as

applied in GareauandKechichian?

(i) - Objective lesionresults from a serious

disproportion of prestations.

(ii) - Subjective lesionis where the obligationis exceptionally onerous for one party, asdetermined by the circumstances knowable tothe parties at time of contract (Gareau).

(iii) -Abusive clauses, as per 1437, is a formof lesion (Slush Puppie)

(iv) - Bad faithcan nullify an abusive clause

(Kechichian)

Step 3.2.3.- What are the consequences of

Lesion?

(i) - If lesion of covitiated and who

with damages, o

(ii) - Defendant c

obligation (1408)

(iii) - If lesion of c

reduced (1437-

(iv) - Contract is sfundamental (143

Step 3.3. - Was consent vitiated through the

error of one party (1400 CCQ)?

(i)To vitiate consent the error must relate the

nature of the contract, identity of objector

an essential elementof consent? (1400,*Huot*).

(ii) Would,but for the error, they not havecontracted? (1400 *Huot*)

(iii) Was the error not inexcusable? (1400,Huot)

(iv) Remedy for innocent error is annulment of

the contract. (1407,Huot).

(v) Where error was product of negligence or

other fault, damages (1407,Huot).

(vi) Error does not need to be shared and is

judged subjectively (*1400* *Huot*).

Step 3.4. - Was the error a result of fraud/dol? (1401 CCQ)?

Where an error is produced by fraud through

act or omission, and because of fraud partywould have not contracted or contracted on

di!erent terms, consent is **vitiated** (*1401CCQ*, *Creighton v Grynspan*).

The presence of fraud will generally mean anerror is not inexcusable(Les Ptroles).

Vitiated consent means a contract is

relatively null(*1419*) and may still beconfirmed through actions of victim (*1420*,*Les Petroles*).

Damagesmay be awarded (1407) putting thevictim in the place as if the contracthad not

been made (Les Ptroles).

Step 2- Is the contract absolutely null, inwhole because it is against public order

(1499CCQ)?

Step 5 - Or was the obligation extinguished

on a 1671CCQ grounds?

Step 6Have the parties made stipulations as

to the extent of contractualduties,definitions of breach, discharging events,

conditions, limitation or exclusion of liability?

Step 7 -If there is an unexcused non-

performance, what remedies are available(1590 CCQ)?


4/15


Step 1 - Has there been an exchange of

consents? (1385CCQ)

Step 4- Following the rules of

interpretation, has debtor failed to perform


Step 2.1 -Apply General Rules

(i) - Common intention of the partieswill be

sought (1425).

(ii) - Clauses are interpretedin light of the

contract as a whole(1427).

(iii) - Clauses will beinterpreted so as to give

some E!ect(1428).

(iv) - Good faithis assumed (1375)

(v) - Nature of the contract, past conduct,and the circumstancesin which it was

formed will be taken into Account (1426)

(vi) - Contracts are interpreted in favourof

party incurring obligation(1432)

Step 2.2 - If contract of adhesion(1379

CCQ) or consumer contract(1384CCQ),apply special rules.

(i) - Terms are always interpreted in favour of

consumer/adherant(1432)

(ii) - Externalclauses not expressly identified

are null (1435, dell)

(iii) - Incomprehensibleterms are null (1436)

(iv) -AbusiveClauses are null (1437)

Step 2.3 -Check to see if either party

breached a duty of good faith(6,7,1375)

(i) - There is a general duty of good faith(6CCQ)

(ii) -Abuse of right(7 CCQ) is also a delict.

(iii) - What is the nature of the relationship(closer, stronger)?

(i) - Bank-Client relatgeneral prohibition no

(Soucisse).

(ii) - Long term Bank-unreasonable exercis

(Houle, 1457 CCQ)

(iii) - Franchise relatio

of control), require loy

(iv) - What are the consequences?

(i) - Fin de non rece

claim becomes une

(ii) - Breach of duty

extra-contractual ob

(iii) - Breach of duty

contract (Provigo, H





Adhesion

Consumer

Loan



whole, because consent was vitiated

(1398,1399CCQ)?

Step 2- Is the contract absolutely null, in

whole because it is against public order

(1499CCQ)?




to the extent of contractualduties,

definitions of breach, discharging events,




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consents? (1385CCQ)








Adhesion

Consumer

Loan




(1398,1399CCQ)?



(1499CCQ)?



6.4. Was performance of the obligation madeimpossible (1693 CCQ)?

(ii) Right holderbears risk of loss unless thereis a delivery obligation (1456).

(iii) Superior force is an unforeseeable and

irresistible event (1470 CCQ). Generally

doesnt include human actions (*Otis

Elevator*).

(i)Superior force release debtor when, *(i)*before defaultsuperior force prevents

performance or *(ii)* after defaultandperformance could not have been enjoyed

anyway. (1693 CCQ) Unless debtor hasexpressly agreed to perform regardless.

(iv) parties can stipulate what constitutessuperior force(Otis Elevator)

6.1.Was the obligation performed(1553CCQ)?

Payment means the actual performance ofwhatever forms the object of the obligation.

6.2 . Did parties agreeto end the contract(1439, 1687 CCQ)?

6.3. Did debtor rightfully terminatebecause

of creditors own defaultof not minorimportance (1604 CCQ)

(i)Where one party failsto perform the other

may refuse to performto a similar degree(1590)

(ii)Where resolutionor resilitiation

(successive performance)is requested, thedefaultmust have not been of minor

importance(1604)

(iii)If an obligation cannot be reduced, thendamages will su!ce(1604)

(iv)Where there is a lapse of term resilitiationdoesnt need a judicial order (1605)

(v)Resolution is requires restitution, resiliationstops future prestations (1606).

6.5.Was there imprvision? No provision for simple hardship in civil code.

Other systems

Ontario Frustrated Contracts Act- Whereperformance has become frustrated or

impossible, expenses incurred by parties inrelation to performance of contract can berecovered if it is just. Similar rule of restitutionif other party has gained a benefit.

Unidroit

6.2.1 - Where performance becomes moreonerous performance is still required unlessthere is hardship.

6.2.2 - Hardship where occurrence of eventsfundamentally alters the equilibrium ofcontract either by increased cost ordecreased value. Also must, events occurafter conclusion of contract, could not havebeen reasonably foreseen, beyond control,risk was not assumed.

6.2.3 In case of hardship party can requestrenegotiations. This does not entitle towithhold performance. If failure to negotiatethey may go to court, where the court mayterminate contract or adapt the contract torestore equilibrium.

Restatement of Contracts s 261 - Whereafter contract performance is made

impracticable without fault, duty isdischarged, unless otherwise agreedbeforehand.

Principles of European Contract Law

4.102 - Contract is noat time of contract peimpossible.

8.108 - non-performawas an impediment bcould not be reasonaimpediment is temporperiod of impedimentmust be received with


to the extent of contractualduties,

definitions of breach, discharging events,conditions, limitation or exclusion of liability?



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consents? (1385CCQ)








Adhesion

Consumer

Loan




(1398,1399CCQ)?



(1499CCQ)?




to the extent of contractualduties,definitions of breach, discharging events,

conditions , limitation or exclusion of liability?

6.1Were the terms incorporated and valid

(1434)?

In a battle of the forms, the terms of the last

shotwill prevail (Simon-Beaudry).

6.2.Do single clauses conflict with publicpolicy?

Discriminatoryclauses, even if indirectlydiscriminatory, are against public order

(Labatt)

Restraint of trade, if not reasonably limite

against public order (2089 CCQ, Camero

If the term is not essential to the contrac

can be severed (1438, Cameron, Labatt

The courts will not read downa clause

against public order (Cameron)

A term that is against public order will be

(1499 CCQ)

6.3.Is the clause otherwise unenforceable? Abusive Clause

AbusiveClauses, which

unreasonable , in consu

contracts of adhesion a

Puppy)

If the term is not essen

can be severed (1438,

Three pronged test for

Excessiveburden on p

Unreasonable (object

faith(Kechichian).

Exclusion of liability -A person may notexclude liability for material injury throughgross or intentional fault (1474).



7/15

Is therea claim for breach ofcontract in the

commonlaw?

Step 1 - Has therebeen avalidexchange ofconsents?

Step 1.1 -Was therean o!er with intention

to belegally bound?

Step 1.1.1 -Would areasonable person havetaken thecommunication as intendingtoe!ectlegal relations?

( i )- Intention tobe legally boundwillbe

determinedfrom perspectiveof reasonable

observer (Carbolic SmokeBall)

(i i)- O!ers madein obviousjest preclude

intention tobe bound (Pepsico).

(iii) -An o!er mustcontain essential

elementsofcontractto bebindingupon

acceptance(Pepsico).

(iv)- Omission ofmany terms suggests that

itisnot an o!er butan invitationto treat(Pepsico)

Step 1.1.3 -Apply rules for specialcircumstances/relationships.

( i )- In family relationships thepresumption is

no intentionto bebound (Jones v

Padavatton).

(ii) - In commercial transactionsthe

presumptionisthatthereis an intentionto

bebound(Kleinwort Benson), though theremay bedeliberatenon-law.

(i i i)-Advertisements aregenerallyassumed

nottobeo!ers(Pepsico).

(v)- In retail, thecustomer makes theo!er

(Boots pharmaceutical).

(vi) -In automatictransactions, thevendor

makes theo!er(Thornton).

Step 1.1.4. -Consequences ofnointention tobebound.

( i )-Agreementisnot enforceableby courts

(Kleinwort Benson, Padavatton)

( i i)- Acceptance totreat mayconstitute an

o!er (Pepsico, Boots Pharmaceutical)

(i i i)- Pre-contractual negotiationsare not

binding, however agood-faith dutymay be

impliedfrom previouscontract (Empress

Towers)

Step 1.1.2. - Whatkindofcontractual

relationship didtheo!er entail.

Unilateral Contract

(ii)Unilateral o!erscan berevokeduptolast

momentof completeperformance(Dawson)

(i i i)- Courts willdisfavourably interpretunilateralcontracts, preferringto interpretthem as bilateralcontracts solongas thereis

amutualpromise(Dawson Helicopter)

(i)A unilateralo!er promisesa prestationby

o!eror on condition ofperformanceby

o!eree(Carbolic smokeball).

Bi-Lateral Contract

Bilateralo!erspromisean exchangeofprestationsbinding upon acceptanceby

o!eree (Boots Pharmaceutical)

Option

In Common Law, an option contractmustbe

furnishedwith consideration, seedoctrine ofconsideration.

Step 1.2 -Was therevalid acceptanceof theo!er?

Step 1.2.1 - Didacceptance meeto!er inspace&time? Step 1.2.1a Didthe o!erexpire?

(i)-If notermattached, o!er expireswithin areasonabletimegiven thecircumstancesof

themarket(Shatford)

(ii)O !eror can stipulatean expiryterm, can

stillrevokeatany time(Waddams)

Step 1.2.1b -Wastherean attemptto

revoke?

(i i)- O!eror can revokeo!er anytimeprior to

acceptance(Carbolic SmokeBall, Wormser)

Step 1.2.1c-Apply communicationrules todeterminewhether attemptedrevocation orattemptedacceptance was e!ective.

(ii)- In simultaneouscommunication, wheredispatcher can reasonably know ofreceipt,

acceptanceoccursuponreceipt (Entores).

Iftheknow

Dete

(i i i)-Mailbox rule: In two-way, where

dispatcher reasonably cannotknow of

receipt, communicationsacceptance occurs

at dispatch(Entores)

Ifthreacom

Det(iv)- In caseof miscommunication,

dispatcher has onusto follow upunlesshe

reasonably could notknow of it (Entores).

(iv)If a form of communicationwasstipulatedin the o!er, itmustbe respectedby

theacceptance(Waddams)

Step 1.2.1d - Is therea unilateralcontract?

( i )-Acceptanceis at100% perform

thecontract(Carbolic SmokeBall,

Pharmaceutical)

(i i i)- Courts willgenerally interpretucontractsas bilateralcontracts solo

thereisamutualpromise(Dawson

Helicopter)

(ii)Unilateral o!erscan berevokedu

momentof completeperformance(D

Step 1.2.3 -Doesacceptancematch o!er in

content(mirrorimagerule)?

( i )-Acceptanceis binding if all essential

elementsof acontractareagreedto

(Ra!es v Wichelhaus, Aerated Bread

Company).

(i i)-Acceptanceis a simply yes(Butler

MachineTool).

(i i i)- Lastshot in thebattleofthe forms

prevails (ButlerMachineTool). Thatis, eachform constitutesa counter-o!er

(iv)-Ambiguity in essentialterms tothe

degreethatthereis no reasonable

interpretationmeansno contract (Rafles v

Wichelhaus, Aerated Bread Company). Seemisunderstanding.

(vi)-Acceptanceis determinedfrom

perspectiveof reasonableobserver,

subjectiveperception isirrelevant (Aerated

Bread Company).

(v)Courtswillattempttofinda reasonable

interpretationofvagueterms(Carbolic

smokeball.)

(i)-Acceptancecan be explicitor through

actions(CarbolicSmokeball, Entores)

(iii)- Communication thatchanges an essential

termconstitutes a counter-o!er (Butler

MachineTool)

(vii) Whereparties continueto negotiate afteran agreementhas been madethat wouldotherwisebeen binding, when an agreementis madewillbe determinedfrom perspective

ofreasonableobserver (Aerated Bread

Company)

Step 2-Is there valid consideration and

form?

Step 3 - Is contract void inwhole becauseofillegality or mistake?

Step 4 - Is contract voidablein wholebecauseof unconscionability,

misrepresentation, duress, undueinfluence ?

Step 0 - Outlinethe situation

i- Identifiy theparties

ii- Identify thecontractual relationsWatch outfor sneakythird parties!

iii- Classify contracts

Adhesion

Consumer

Loan

iv -Identify potentialdefects andbreaches(Restof Diagram)

Step 5-Has a breachoccurredaccordingto

how acourtwill interpretthecontract?

Step 6 - Hasobligationbeen dischargedeither partially or completely? Is non-

performanceexcused?

Step 7 -Have theparties made stipulations

asto the extentof contractualduties,


conditions, limitation or exclusion ofliability?

Step 8 -Whatarethe remedies availableforany breach ofcontract?

Step 9 -If therearestipulationsas to

damages on breach? Arethey applicable?


8/15

Is therea claim for breach ofcontractin the

commonlaw?

Step 1 - Has therebeen a validexchangeofconsents?

Step 2-Is there valid consideration and

form?

2.1 -Atcontract formation , was the

agreementfurnished by mutual

consideration .

2.1.1.GeneralRule

( i )- Gratuitous contracts arenot binding

unlessunder seal(Waddams, Brudner,

Hutchinson)

(iv)- Theremustbe mutual inducement of

consideration in bilateralcontracts (Orange

Crush).

Courts willnotinquireintothe adequacy of

consideration, only whether itwas su!cient(Lloydsbankv Bundy)

(i i)- Consideration consists ofa restrictionof

onesfreedoms (Sidway). Can alsoconstituteobtaininga benefitas aresultofthe

promise(CITE)

2.1.2. WhatConstitutes Consideration

(i i i)- Consideration mustrestrict a future

freedom, otherwiseis illusory (Orange

Crush). In other words, ifparty can endcontractat any time, they never reallypromisedanything.

(vi) -Therequirementto bind futurefreedomis notrequired in unilateral contracts (Dahl)

(vii) -Promisemustbe inducedby

consideration (Kirksey)

(viii) - Implied duties can constitute

consideration. (Lady Du!)

(ix) - Previousconsiderationcannotbeused

for new promise(Roscorla).

(x )- In USA, moral consideration can be

considered(Webb v McGovin).

(v) -Detrimentcan alsocountas

consideration (Carbolic SmokeBall)

2.2 - Wasa ContractModificationfurnished

withConsideration?

2.2.1 - Pre-existingduty rule

(i)-A pre-existing common-lawor

contractualduty cannotconstitut e

consideration (Stilk v Marick)

Note, thisemerged frompolicy considerations

aboutduress (Hariss v Watson)

(i i)- Even ifagreementis betweensophisticatedactors, fresh consideration is

neededfor common law contract(Gilbert

Steele)

(iii)- Consideration may notbeillusory suchas in atent ativepromiseor increasedcredit

(Gilbert Steel)

2.2.2.- Promissory Estoppel

( i )- Promissory Estoppelcan be usedas a

defenceagainstaa partygoing backon a

promised concession given without

consideration butwas reliedupon (High

Trees)

Thereis a promisetoacceptasmaller sum inexchangefor a larger sum (Concession).

With theintention tobebound

Party makingthe promiseknew or wouldreasonably know itwould beacted upon.

Itwas actedupon.(i i)- Promissory estoppelcannot beused to

enforceabenefit another party promised.

(Gilbert Steel)

2.2.3.- Reliancebased regime (Noneofthisis goodlaw in Canada, saveNav Can).

( i )- In UK, wherethere is noduress economicbenefitcan constitute consideration (Ro!eyBrothers).

Parties enservices i

Onepartyableto p

Thatpartyensurepe

as aresubenefitor

Thereis

Thepromipracticalcbebinding

(ii) -In Australia, promissory estoppelcan beusedas swordor shield(even in pre-contractualsettings), wherebreaking reliance

is unconscionable(Walton Stores). Breachis atort.

*(i)*Pr

*(ii)*Pr

**assexiste

*(ii i)**

detrim

*(iv)*I

tothe

toigno

(iii)- In USA s.90 Restatementof Contractsprovides for areliance basedregime where

justicedemands.

(iv)-NavCanada. Apost contractualmodification, unbyconsideration may beenforceabasit isestablished thatthe variatioprocuredunder economicduress.

Step 3 - Is contract void inwhole becauseofillegality or mistake?

Step 4 - Is contract voidablein wholebecauseof unconscionability,

misrepresentation, duress, undueinfluence ?

Step 0 - Outlinethe situation

i- Identifiy theparties

ii- Identify thecontractual relationsWatch outfor sneakythird parties!

iii- Classify contracts

Adhesion

Consumer

Loan

iv -Identify potentialdefects andbreaches(Restof Diagram)

Step 5-Has a breachoccurred accordingto

how acourtwill interpret thecontract?

Step 6 - Hasobligationbeen dischargedeither partially or completely? Is non-

performanceexcused?

Step 7 -Havetheparties made stipulations

asto theextent of contractualduties,

definitions of breach , discharging events,

conditions, limitation or exclusion ofliability?

Step 8 -Whatarethe remedies availableforany breach ofcontract?

Step 9 -If therearestipulationsas to

damages on breach? Arethey applicable?


9/15

Is there a claim for breach of contract in the

common law?

Step 1 - Has there been a valid exchange ofconsents?

Step 2- Is there valid considerationand

form?

Step 3 - Is contract void in wholebecause ofillegality or mistake?

Step 3.1 - Is contract void because due tostatutory or common law illegality?

(i) - Non-altruistic surrogacy co

against public order (Baby M).

(ii) - If courts determine e!ects/conflict to have broad reachinge!ects it will refuse to enforce dcommon-law illegality (Baby M

(iii) - Policy reasons must outwepublic interest in maintaining th

contracts (Tercon).

Step 3.2 - Was there a mistake?3.2.1.Misunderstanding

Where there is such ambiguity

essential termof a contract tha

reasonable interpretation, the

void(Ra!es v Wichelhaus).

3.2.2.Mistaken Assumption rez sua- Where alread

purchaser prior to concontract is void(Lever

Where there is a sharesubject, had that erroparties they would hav

have been of a fundam

nature, the contract is*Sherwood Walker*).

Step 4 - Is contract voidable in wholebecause of unconscionability,misrepresentation, duress, undue influence?



ii - Identify the contractual relationsWatch out for sneaky third parties!


Adhesion

Consumer

Loan


Step 5- Has a breach occurredaccording to

how a court will interpretthe contract?

Step 6 - Has obligation been discharged

either partially or completely? Is non-performance excused?

Step 7 - Have the parties made stipulationsas to the extent of contractualduties,



Step 8 -What are the remediesavailable forany breach of contract?

Step 9 - If there are stipulations as to

damageson breach? Are they applicable?

rez extincta -Where, uparties, the object of coprior to contract format

The doctrine of mistakrestricted in Lever Brotemploy successfully (M


10/15


common law?



form?


Step 4 - Is contract voidable in wholebecause of unconscionability,

misrepresentation, duress, undue influence?

Step 4.1 - Was consent vitiated throughDuress?

4.1.1.In Case of actual threats of violence

consent is vitiated (Kafco)

4.1.1. Duress of goodsinvolves withholding

ones goods until agreement (Bundy)

4.1.2.Was there economic duress(Kafco)?

Requirements

(i) - Parties en

will.(ii) - Party had

(iii) - There wa

includes threa

Factors

(i) - did the vic

(ii) - Were ther

action?

(iii) - Was there

(iii) - Did they tthe contract?

Step 4.2 - Was consent vitiated through

Undue Influence?

Undue influence is where one party abuses

their position of trust and influence over

another (Bundy)

Step 3.3a -Actual Undue Influence (Bundy)

or Class 1 UI (OBrian)?

(i) -There is little or no benefit in thearrangement for the weaker party

(inadequacyof consideration).

(ii) -Parties bargaining power is impaired byhis own needs, desires or infirmities.

(iii) - Undue influence was exercised, though

not necessarily intentionally, for benefitofother party.

(iv) -Actual noticeStronger party must haveknown of their influence and can discharge itby having the party get third party advice.

Step 3.3b - PresumedUndue Influence

(Obrian & Duguid)?

(i) -Class 2a -Automatic presumption of UI in

relationships of contractual trust(Lawyers,

accountants) .

(i) -Class 2b - Party proves a relationship of

trust and influence (OBrian), there is apresumption of Undue influence.

Husband(OBrian

(iii) - Even if a third party to influence, creditoris fixed with constructive noticeand mustdischarge duty to ensure consent is proper,

often through third party advice (Duguid,

OBrian).

Step 4.3 - Was consent vitiated through

Unconscionable Bargain?

(i) - Doctrine applies where the lack of

consideration is extreme and there is aserious inequality in bargaining power

(Bertolo, Harry).

(ii) - UC can be avoided by requiring party to

seek independent advice (Bertolo, Harry).

(iii) - E!ect is to nullify the agreement (Harry)

Step 4.4. - Was there negligent

misrepresentation?

4.4.1.Does the situation meet the requires set

out inVK Mason?

(i)An untrue statement

(ii) Made negligently

(iii) Where there is a duty of care

(iv) With foreseeable reliance.

Result is a tort that puts P in place as if

contract had never happened (* VK Mason*,

*Esso Petroleum*). Doesnt need contractualrelations to be established.

Lost opportunitycosts are included indamages (*VK Mason*).

Implied collaterol warrantycan also apply,but result is the same (*Esso Petroleum*)





Adhesion

Consumer

Loan

iv - Identify potential defects and breaches

(Rest of Diagram)



Step 6 - Has obligation been dischargedeither partially or completely? Is non-

performance excused?

Step 7 - Have the parties made stipulations

as to the extent of contractual duties,






E!ect - Party whose consent was

can revoketheir consent. Can recontract as a whole or a modificat

4.4.2. If true, what is result?


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iv - Identify potential defects and breaches

(Rest of Diagram)



Step 5.1 -Apply General Rules

(i) -Clauses are interpreted in light of the

contract as a whole (Novopharm)

(ii) -Clauses are given meaning that give it

some e!ect (Novopharm- specifically inredrafting errors).

(iii) - Contra proferentumapplies to contractsof adhesion (Tercon) but cannot be invokedby third parties.

Step 5.2 - Is there a signed Document?

(i) -Parole evidence rule means that signeddocuments prevail over unwritten evidence

(Novopharm).

(ii) - External evidence will be taken intoaccount when resolving ambiguous terms

(Novopharm).

(iii) - Signing a document means total

agreement to the terms (McCutcheon)

(iv) - Recent case law suggests that this maynot apply to voiding rights of action in

boilerplate contracts (Tilden Rent-a-Car)

Step 5.3 - Is there an unsignedagreement?

(i) -Implying termsinto a contract requires

demonstrating what could objectively beknownat the time (McCutcheon, British

Crane Hire).

(ii) - The type of contract can inform what willbe implied (McCutcheon).

(iii) - Standard business practicesand past

practicecan be used to imply terms (British

Crane Hire).

Step 5.4 - If a ticket case(adhesion).

(i) - When waiving a right, su!cient noticemust be given, such that the issuer can

reasonably assumethe customer knows of

their right and could refuse (Shoe LaneParking)

Step 5.5 -Check to see if party breached a

duty of good faith,

(i) - There is no general duty of good faithin

the common law (McKinley)

(ii) - Courts will imply a term of good faith onthe basis of:

(i) - Businescontractuall(Empress T

(ii) - Custom

(iii) - Legal i(trusts) (Tran(iii) - There is no duty of good faith in pre-

contractual negotiations (Martel).

(iv) - Where there is discretionary powerforone party (particularly if more powerful) courtswill tend to imply a duty of good in regards to

the exercise of that power (McKinley).




as to the extent of contractualduties,definitions of breach, discharging events,






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6.1. Was there performance?

6.2. Was contract ended by agreement orrelease?

6.3. Is non-performance excusedbecauseperformance was frustrated?

6.3.1. Impossibility

To the extent that an obligation is imto perform due to force majeur, nonperformance is excused (Sainsbury

6.3.2. Frustration of Purpose

(i) Was there a cha

contract formation

Investments)?

(iii)Was there a chsubstantial as to m

di!erent in naturbargained for?) th

(Amalgamated Infrom implied allo

(ii)Did the parties circumstance/alloc

(Amalgamated In

6.4. Was contract rightfully terminated

because of a repudiatory breachof the otherparty?

(i) Did the other party breachthe contractfirst?

(ii) If the stipulation was a explicit or implied

condition of the contract,any breachof the

stipulation will terminatethe contract.

(Cehave)

(iii) If the extentof the breach goes to the root

of the contract, e!ectively denying

enjoyment, including anticipatory breach,

the contract will be repudiated (Cehave).

(iii) If not, there is only a warranty and

damages will su"ce (Hongkong Fir).

Reciprocal non-performancewill not beexcused.


as to the extent of contractualduties,





(iv) Reluctance in performance for mimpracticability (S


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(i) - Restraint of trade is against public order

unless set within reasonable limits (Provident

Clothing).

(i) - If clause is against public order it will be

null, and will not be read down (Provident

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7.1 Has Term beenincorporated?

7.2 Does clause violatepublic policy? Seestep 4

7.3 -If there is a limitation of liability clause,is it unconscionable?

(i) - Properly interpreted, would

apply (Tercon)?

(iii) - Was clause unconsciona

unequal bargaining powerat

contract (Tercon)?

(iv) - Are there policy concernthe strong interest in enforcin

(Tercon)?

(v) - A null clause will leave th

contract enforceable (Tercon

7.4- Stipulations of breach




In a battle of the forms, the terms of the last

shot prevails (Butler).

Step 3.2 - Is there a signed Document?

(i) -Parole evidence rule meadocuments prevail over unwrit

(Novopharm).

(ii) - External evidence will be taccount when resolving ambig

(Novopharm).

(iii) - Signing a document mea

agreement to the terms (McC

(iv) - Recent case law suggestnot apply to voiding rights of a

boilerplate consumer contract

a-Car)

Step 3.4 - If a ticket case(adhesion).

(i) - When waiving a right, su!cmust be given, such that the iss

reasonably assumethe custo

their right and could refuse (Sh

Parking)

If contract stipulates a clause is a condition,any breach will repudiatethe contract(Cehave).

7.3.2.Is an exclusion of liability clause

attempting to benefit an employeeor third

party (London Drugs)?

(iii)employees are acemployment.

7.3.1. Is it unconscionable?

(i) There is a contracbetween employer an

(ii) loss occurs duringof its contractual obl

No rule for other thirexpanded.


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Is there a claim for breach of contract in thecommon law?


Step 2- Is there valid considerationandform?








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performanceexcused?





8.1. Will Damagesbe Provided as a Remedy?

8.1.1. What is the measure of damages

General principle that claimant will not be

made better o!and the defendantwill be

sanctioned(Forsyth).

Expectation Damages

Remedy will be the di!erence betwepromised and actual performance (H

Reliance

Investments made in reliance of promiseand

rendered uselessbecause of breach will beremedied (Security Stove).

Loss profitsare in principle available (SecurityStove, Esso Petroleum)

Restitution

Reinstatement will be granted on grounds only

it is reasonable in comparisonto the loss ordecrease in value. Personal intentionand theobject of the contract will be taken into account

(Forsyth).

8.1.2. Is the damage too remote applying VictoriaLaundry (restatement of Hadley)?

The injured party may only recover for losses thatwere reasonably foreseeableat the time thecontract was formed (imputed knowledge);

Must be reason

not unlikely (probability.

Takes into accoparties (VictoriDamage forunforeseeable reasonscan be

recovered only if the possibility of such a loss wascommunicated to the other partyat the time the

contract was formed (actual knowledge).

8.1.3. Will the plainti!be entitled to Amenity/Aggravated Damages

Where the object of the contract is tofurnishenjoyment, the deprivation of that enjoyment can

be claimed (Jarvis)

Aggravated damagescan be awarded when the

object of the contract was tosecure apsychological benefitthat brings mental distressupon breach that is within thereasonablecontemplation of the parties and thedegreeofsuffering was sufficientso as to warrant

compensation (Fidler)

8.1.4. Will the plainti!be entitled to punitivedamages?

There must be a separate actionable wr

which can be another contractual (Whiten

Whether the breach wasegregious enouwarrant punitive damages should be assdegree of misconduct, relativevulnera

other party,advantage or profitto breac(Whiten).

Punitive damages should only be awar

exceptionally and in cases of clear badegregious conduct (Fidler).

The quantum of damages should be in

proportion with injury (Whiten).

8.3. Can a third party seek remedy for a

benefit?

State of Common Law does not allow thirdparty to sue directly. The contracting party

may require specific performance (Beswick)

Under UK Third Party Rights Act the thirdparty may confer a benefit.

8.2. Can Specific Performance be Granted?

8.2.1. Inadequacy of Damages?

Specific performance is anequitable remedyavailable where damageswould be inadequate

or impractical (Warner Bros).

Where the object of contract is aunique goodorservice and not readily exchangeablein the

market, specific performance may be available(Warner Brothers).

Where, due toprivity of contract, a party wouldbe able to escape the consequence of breach,

specific performance will be ordered (Beswick)

Performance is in lieu of damages (Warner Bros)

8.2.2. Is this a situation will specificperformance will not be ordered.

Positive obligationsto work will not be enforced,

neither willnegative obligationsthat wouldeffectivelyforce the performancethrough

hardship (Warner Bros)

Courts will generally not order specificperformance in commercial contracts (Warner

Bros, Argyle)

Orders for continuing performancewill not be

enforced, though orders for result may (Argyle)




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Step 7 - Have the parties made stipulationsas to the extent of contractualduties,






9.1. Is the penalty clause enforceable(*Thermidare*)?

Penalty clauses that anticare enforceable.

Penalty clauses that attembreach by stipulating amoactual damages are unen

Primary concern is fairnereasonableness.

If unenforceable normal dassessed.

9.2.Are additional damages applicable?

Would require interppenalty clause and acannot leave other p

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