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Old Exams
Commercial Law
Old Exams
Commercial Law
Old Exams
Commercial Law
Old Exams
16. What does the phrase Sine Qua Non mean and in what context was it
used during this course?
Sine Qua Non means without that nothing and is also referred to as the but for
test. If the accident would not have occurred but for the defendants negligence
then his conduct is a cause of the injury. The act of the defendant must have
made a difference, but it doesnt have to be the cause.
17. Name the four basic duties an agent owes to his principal.
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Commercial Law
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Commercial Law
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Commercial Law
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for the purpose. There existed no understanding between the agent and the
principal, express or implied, granting this authority.
Apparent authority is manifested in 3 ways: 1) the effect of publicly filing
documents if the documents prohibited either the corporation or one of its
officers from carrying out certain acts, a third party could not rely upon what
otherwise might be the officers apparent authority to perform those acts, 2)
indoor management a person dealing with a corporation is entitled to assume
that its internal procedural rules have been complied with unless it is apparent
that such is not the case, and 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 in existence 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 ceasesto be bound by or entitled to the benefits of the contract.
31. What is the Parol Evidence Rule? Identify 3 exceptions to it.
A rule preventing a party to a contract from later adding a term previously agreed
upon, but not included in the final written contract, to contradict the contract. 3
exceptions: 1) the rule would not be applied to a written contract that never
embodies all the terms, 2) it does not hinder the interpretation of express terms
already in the contract, 3) the rule does not exclude evidence of an oral
agreement that the parties may reach after they have entered into the written
agreement.
32. What does the term intra vires mean?
Intra vires means within the power, or anything within the law.
33. Canada is described as having a constitution that is Quasi Federal.
What does this mean?
This means that Canada is a country that has some federal aspects as well as
non-federal aspects. Canada is referred to as being a federal country in the BNA
act, there are 2 levels of government, and the lieutenant governor is not just a
federal official, rather he/she posses all the prerogative powers of the Crown.
However Canada is not federal country in the fact that judges on the Supreme
Court of Canada are appointed by the prime minister, the federal government
gives power to the provincial power, and the Charter of rights is adjudicated by
the federal government.
34. What is a condition subsequent?
Condition subsequent is an uncertain event that brings a promisors liability to an
end if it occurs.
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discharge by performance
discharge by agreement
discharge by frustration
the contract provides for its own dissolution
38. What are the four basic limitations on the separate entity principle in
corporate law?
1. Taxation a Corporation is eligible to enjoy a lower tax rate on its first
$200,000.
2. Residence the residence of the controlling shareholder may determine the
company residence.
3. Agency the agent cannot represent a shareholder unless a shareholder
agreement has been signed.
4. Fraud when fraud has been committed the court will disregard the
separate entity principles, but will see the directions have committed the
fraud.
39. What is convention in the constitutional context? (What is a Convention
of the Constitution)
Conventions are traditional and generally accepted principles that guide political
actors in how they function. However, conventions are not enforceable by courts,
for example responsible government.
40. What is the J.C.P.C?
Judicial Committee Privy Council. They were the final appellate court before
1949. It was comprised of law lords from the UK that listened to appeals from
overseas dominions and colonies.
Commercial Law
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Commercial Law
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46. What was the holding in Hodge v. The Queen and why is it significant?
Provinces are not delegates of the federal parliament, but in their own spheres
they are supreme. It was significant because it allowed provincial legislation to
be supreme within the province.
47. What are the four roles of the court?
Commercial Law
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Commercial Law
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and any maximum number of shares that the corporation is authorized to issue,
rights and restrictions attached to each class, any restriction on the transfer of
shares, number of directors, any restrictions on the business carried on.
56. What are the 2 amendment formulae identified in the Constitutional Act
1982? (2 amending formulae in respect to the entrenched aspects of the
Canadian Constitution?)
The 7-50 rule - it requires the resolution of the Senate and House of Common,
and resolution of legislative assembly of at least 2/3 of the provinces (7
provinces) with 50% of the population in aggregate of all the provinces.
Unanimity provision requires the unanimous approval of all the provinces. No
change should be made to the Constitution unless theres agreement of all 11
legislatures (parliament and the 10 legislatures).
57. What are the 2 basic legal rules concerning delegate bodies creating
subordinate legislation?
Important regulations require the approval of the cabinet in the form of an orderin-council. The agency itself drafts these regulations and the minister
responsible for the agency brings them before the cabinet. Lesser regulations
may be authorized by the minister, the head of the agency, or even a designated
officer of the agency.
58. The Sale of Goods Act applies to certain transactions. Describe the
transactions as identified in the Act.
For the sale of goods act to apply the contract must be dealing with the
transaction of goods, which is defined as all chattels personal (tangible
personal property), other than choses in action and money.
59. In an Insurance Contract, what is an insurable interest?
Insurable interest separates insurance from a wager. Insurable interest exists
where the insured derives a financial benefit in the continuing existence of the
insured object or suffers a financial loss from the loss of the object.
Compensation will be paid by the insurer to the individual named as a
beneficiary.
60. What is an injunction?
An injunction is a court order restraining a party from acting in a particular
manner, such as committing a breach of contract. For the remedy to be
available, the courts require the contract to contain a negative covenant, a
promise not to do something.
Commercial Law
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Commercial Law
Old Exams
66. What principles of law are established by the case of Hedley, Byrne &
Co. Ltd. V. Heller & Partners?
This case established the principle of expanded liability to third party for
negligence misrepresentation. The result of the case seems to be that anyone
who makes a misstatement is liable for losses suffered by a wider group than
those with whom one has a direct contractual/fiduciary relationship. What Hedley
Byrne did is achieved the neighbour principle with respect to professional liability
and most importantly, in terms of negligence misrepresentation.
67. What is the remedy of specific performance?
The remedy is an order requiring a defendant to do a specified act (when
financial compensation is inadequate) usually to complete a transaction, for
example to finish a building contract. The remedy of specific performance is
most often applied to contracts for the sale of land. Courts granted specific
performance originally on the argument that each piece of land is unique, and
that consequently money damages are an inadequate remedy.
68. What is a class action?
It is an action in which an individual represents a group and the judgment
decides the matter for all members of the class at once. Courts are reluctant in
having class actions because it takes away an individuals right to litigate his own
claim. However, this types of action does free the courts of many individual
cases.
69. To whom are costs awarded in a court action?
Costs are awarded to the winner, whether it is the plaintiff or the defendant,
because they shouldnt have had to go through the court to reach settlement.
70. What is an assignment in Contract Law?
An assignment in contract law is the transfer of contractual rights.
71. What is a shotgun clause and where might you find it?
A shot-gun clause gives a party the option to buy or sell shares at a specified fair
price per share. This has the appearance of fairness because it allows the party
to extricate themselves (especially if they are locked in and frozen out) and it is
fair in that the price offered by the other party will be fair because they dont want
to be taken advantage of since they do not know if the party will buy or sell. (like
you cut, I choose) This is often the case with minority shareholders: an
individual has 60% and the other has 40%, or 2 people together have 60% of the
shares and work together to oppress the individual with only 40%. However, the
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shot gun clause isnt always fair to everyone, especially if one party is
undercapitalized. If you have no money then you cant realistically buy them out.
In those cases the price per share will be determined by someone else so that
the undercapitalized will be considered.
72. What are 3 implied conditions in the Sale of Goods Act?
Sellers title seller has right to sell the goods, description goods sold by
description will conform to the description, fitness the goods are of a type that
is suitable for the purpose for which they are bought (suitability and quality), sale
by sample when a sample has been provided, the actual goods supplied will
correspond to the sample in type and quality.
73. What is a contingent fee in relation to legal services and when is it
usually used?
Under a contingent fee arrangement, the lawyer agrees to act on the basis that if
the client is successful the lawyer will take as a fee a certain percentage of the
proceeds of the litigation, and in the event that the client is unsuccessful the
lawyer will make no charge for the services rendered. It is usually used when it
is the only practical way of brining an action. It is usually a fairly high percentage
of the winnings because you are overpaying the lawyer for the risk that nothing
will be paid if you lose.
74. Why are tort damage awards greater in the U.S.A. as opposed to
Canada?
For 3 reasons: a) Pain and suffering rewards in Canada have been subject to a
limit by the Supreme Court in 1982 of 100,000 they feel for the victims but any
reward is arbitrary. Since then it has been indexed and the current maximum is
300,000. b) Juries make tort awards in the United States; in Canada these do
not exist. Juries tend to be more emotional and as a result will award larger
sums. c) Americans have jurisprudence that allows for higher rewards of punitive
damages that can also be rewarded by the juries.
75. Who was the Emperor Justinian and what was his pre-eminent legal
achievement?
Emperor Justinian was the famous emperor of the Eastern Roman Empire in the
6th century A.D. He developed the Justinian Code, which was inherited by the
whole of continental Europe and formed the foundation for most of the civil law
legal system.
76. Describe what the lapse of an offer in contract law means, and then
briefly define when an offer may lapse.
Commercial Law
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A lapse of an offer is the termination of an offer when the offeree fails to accept it
within a specified time, or if no time is specified, within a reasonable amount of
time. An offer may lapse when: 1) the offeree fails to accept within the time
specified in the offer, 2) the offeree fails to accept within a reasonable time, if the
offer has not specified any time limit, or 3) either of the parties dies or becomes
insane prior to acceptance. When an offer has lapsed, the offeree can no longer
accept the contract even if he is unaware that it has lapsed; it has become void
and no longer exists.
77. What is the Indoor Management Rule?
Indoor Management rule is the principle that a person dealing with a corporation
is entitled to assume that its internal procedural rules are complied with unless it
is apparent that such is not the case. The internal issue is the effect on an
innocent third party if the acts have been performed in an irregular manner. The
similar authority on this point is the case of the Royal British Bank v. Turquand.
In the absence of notice of the irregularity or of suspicious circumstances,
everything that appears regular on its face may be relied upon by an outsider and
will bind the company. An innocent third party may rely on the regularity of
corporate act just as he may rely on the apparent authority of an agent.
78. Who was Jeremy Bentham and for what principle is he best known?
Define it.
Jeremy Bentham is known for the principle of utility. The principle states that the
goal of society should be to increase the sum total of human happiness, the
greatest happiness of the greatest number.
79. What is the Royal Prerogative?
The royal prerogative is the residual of legal power. It is residing in the crown
and passing through the crown to its representative, the Governor Council and
the provincial legislature. The royal prerogative powers that currently exist,
although they have both been taken away by statute include: 1) the power to
appoint the prime minister or premier, 2) the power to dismiss the prime minister
or premier, 3) the power to declare war, 4) the power to appoint an ambassador,
and 5) the power to dissolve the elective of assembly.
80. What does the term Special Damages in tort and contract law refer to?
Special damages are those damages that can be easily calculated, such as
wage losses and medical expenses.
81. Why is the Judicature Act Significant?
Commercial Law
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Commercial Law
Old Exams
88. What does delgates non potest delagare mean in what context is it
used?
One of the institutional sources of law is delegated body. Delegated bodies have
been given power and can create law within the jurisdiction given by the statutes.
Delegates non protest delegare means delegates cant further delegate.
89. What does the term collateral agreement mean?
An entirely separate undertaking which the parties were agreed upon and which
they did not incorporate in their written contract, because the written contract
seemed an inappropriate place for it.
90. In what situations can a contract of a minor be enforce against him and
to what extent?
A minor must pay a reasonable price for all necessaries of their purchase, for
example shelter, food, and clothing. Beneficial contract of service: a minor is
bound to the terms of a contract of employment when it is found to be for his
benefit.
91. In what situations is the doctrine of frustration applicable to discharge a
contract?
Discharge by frustration occurs in two types of situations where the inability to
perform is not their fault: a) Where performance has become literally impossible,
or b) where performance is physically possible but performance would have a far
different meaning for the parties then that which they conceived at the time of
their agreement. The result of frustration is that the contract is discharged and
the parties are relieved of further performance, any benefits already exchanged
fall where they lie. Theres a bit of rough justice, so as a result, the English
parliament also passed the frustrated contract act which allows for the
reallocation of the benefits already exchanged.
92. List 10 criterions an individual should keep in mind when selecting a
kind of business organization.
Limited liability
Estate planning
Borrowing requirement
Employees
Flexibility of structure
Perpetual existence
Number of proposed proprietors
Relationship of proposed
proprietors
Applicable government
requirements
available grants
Costs
Income tax consideration
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Quebec was the last Canadian province to have an upper house in 1966.
94. What are the 3 authoritative sources of constitution?
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It means the facts speak for themselves. The injured party need only establish
that the defendant cause the injury. For example, the plaintiff was struck by a
barrel while standing in a street. It fell from the defendants supper window. The
conclusion, unless the defendant could prove otherwise, is that the most likely
cause of the negligent conduct was the defendant.
101. Describe 3 ways that civil liberties were protected prior to the
Charter of Rights & Freedom.
102.
Democratic system people can elect the political leaders. If the elector
abuses the use of power, they wont be elected again.
Independence of the judiciary judges are not responsible to legislative
bodies for their decisions
The common law if somebody does something to violate the civil liberty,
they can be sued.
Name 2 major problems of enforcement.
Requirement of writing relates to the statute of frauds which was
repealed in Manitoba.
Ambiguous meaning relates to uncertainty and void contract
Capacity
The privity of contract