Chapter Five: Written Documents 1 Unsigned Documents 1



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6.Duress



Greater Fredericton Airport Authority v NAV Canada

What Case is about


Facts: GFA wanted to extend runway but required new system to do it; NAV under K req’d to pay for new system BUT seek variation of K b/c they don’t want to pay.

Issue: Whether a K modification without good consideration is still valid? Whether a K modification with good consideration is nonetheless void on the basis of economic duress…

Held: GF never consented to or acquiesced to the variation (evidence is their letter that they would do it but “under protest”)

Ratio: K variation unsupported by fresh consideration, may be enforceable if not procured under economic duress [onus lies with D to prove modification was not procured under ED]

Notes: good law in NB re: whether or not a K modification with good consideration is nonetheless void on basis of ED; gives framework for ED; ED centers on “no other reasonable choice/practical alternatives”

Chapter Seven: Public Policy

  1. Introduction

7.The Effects of Illegality

Holman v Johnson

Vendor knows purchaser is using product to commit illegal act. = illegal contract? (nope)


Issue

Ratio

Notes

  • P sold to D knowing D would be smuggling product into England illegally

  • P not involved in smuggled

  • Is contract illegal?

•Vendors whose items are used for illegal or immoral purposes are not guilty of any offence, once the contract is complete the vendors interest is totally at an end

•The court will not lend its aid to a man who founds his cause upon an immoral or illegal act

  • P had nothing to do with illegal act and neither did the contract of sale

8.Contracts Contrary to Public Policy Expressed in the Common Law

Egerton v Brownlow

Note case regarding the traditional view of how judges can use public policy


Issue

Ratio

Notes



Traditionally: Judges should only speak to law because they are in no better situation than others to speak of morality

Critique: Just because judges are no better off than other members doesn’t mean they shouldn’t address issues of public policy



In the Matter of Baby “B”

Public Policy (public moral views on relationship of mother and child) inform law


Issue

Ratio

Notes

  • Surrogate mother wants to keep baby

•Surrogacy contracts are illegal in the U.S. due to moral considerations


  • Surrogacy contract is contrary to “objectives of U.S. laws”

  • Guarantees separation of a child from its mother

  • Looks to adoption regardless of suitability

  • Totally ignores the child

  • Takes child from mother regardless of wishes/maternal fitness

  • All of this is done using money

3.a) Contracts in Restraint of Trade

Shafron v KRG Insurance Brokers (Western ) Inc.

Non-Compete Restrictive Covenant-> Validity of this


Issue

Ratio

Notes

  • P signs non-compete to not work in “metropolitan city of Vancouver”

  • That isn’t a place

  • Is restrictive covenant enforceable?

•The reasonableness of a restrictive covenant is determined by considering the extent of the activity sought to be prohibited and the extent of the temporal and spatial scope of prohibition

•If the covenant is ambiguous, in that what is prohibited is not clear as to activity, time, or geography (must be all 3) it is not possible to demonstrate that it is reasonable

  • There is a presumption that restrictive covenants are prima facie unenforceable, but a reasonable restrictive covenant will be upheld

  • Policy: public has interest in being able to freely trade

  • Business owner might not be able to sell business without non-compete

  • Purchaser-seller relationship is different than employee-employer relationship though









3.b) Contracts Related to Gaming



Boardwalk Regency Corp v Maalouf

Public Morality and Gaming


Issue

Ratio

Notes

  • Respondent got into debt gambling in New Jersey, didn’t pay

  • Judgment was entered in New Jersey, R resists that judgment

• English courts refuse to give legal effect to transactions which they hold to be immoral

•In determining whether a contract relates to moral conduct see if the conduct is in the Criminal Code



If it is check in CC then: check to see if it is conduct that is an outright offence or conduct that could be amended to be regulated?

  • Provinces have ability to license gambling

  • It wouldn’t be immoral to lend money to a friend for him to play lotto


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