Chapter Five: Written Documents 1
1.Unsigned Documents 1
Parker v The South Eastern Railway Company 2
Plaintiff didn’t read conditions on ticket: are they binding? 2
Lamont v Canadian Transfer Company 2
P contracts to ship bags home, P has to request the receipt, receipt contains conditions 2
Chapelton v Barry Urban District Council 2
P receives ticket w/ time limit, sign “respectfully requests” P get ticket, conditions on ticket 2
Olley v Marlborough Court Ltd. 3
P contracts to rent hotel room, Limitation clause = sign in room, too late to bind? 3
J Spurling Ltd. v Bradshaw 4
P stores D’s item and loses it, limitation clause accepted by D in previous dealings, this time it was received late 4
McCutcheon v David MacBrayne Ltd (key case) 4
P had agreed to limitation clause many times before, not this time. Signature not representation of agreeing if contract is too long/complex 4
Thornton v Shoe Lane Parking Ltd. 5
Conditions on ticket, but ticket is acquired by customer from automated booth 5
British Crane Hire Corp. Ltd. v Ipswich Plant Hire Ltd. 5
Commercial Parties, Can a party rely on limitation clause if it had been signed in past but not this time (yes if standard form exists) 5
Tilden Rent-A-Car v Clendenning 6
Party clearly did not read the contract thoroughy 6
2.Parol Evidence Rule 6
Federal Commerce & Navigation Co. Ltd. v Trade Export S.A. 6
Some weird boat contract where parties disagree on the meaning of terms 6
Prenn v Simmonds 7
Interpretation of contract not limited to linguistic meaning, objective test 7
Farah v Barki 7
Allowing evidence in of fraud 7
Curtis v Chemical Cleaning and Dyeing Co., Ltd. 7
D misrepresents the extent of limitation clause, tries to rely on it 7
Canadian Indeminity Co. v Okanagan 8
Note Case: Reiterates Curtis and includes innocent misrepresentation 8
Hawrish v Bank of Montreal (Key Case) 8
P contracts with D, D gives P collateral agreement, court explains collateral agreements admissibility 8
Morgan v Griffith 9
Collateral Agreement: tenant notices problem w/ property, agrees to resign lease if landlord takes care of it 9
Pym v Campbell 9
Parties agree to K but attach condition precedent that K is not binding unless ____ 9
Corbin on Contracts 9
A summary of the need to include the “matrix of facts” 9
Long v Smith 10
Written agreement disclaims verbal, court bends things for equity 10
City and Westminster Properties Ltd. v Mudd (feels iffy) 10
Promise that serves to invoke party to sign is admissible evidence, similar to promissory estoppel 10
Tilden Rent-A-Car v Clendenning 11
Party signs contract, asks if paying for insurance covers everything, clerk says yes, exclusion clause exists 11
Gallen v Allstate 11
Alford doesn’t like but has good list of parol evidence exceptions 11
3.Rectification 12
U.S.A. v Motor Trucks, Limited 12
Mistake in drafting, party seeks rectification 12
Bercovici v Palmer 13
Parties make deal, item is added that shouldn’t be, judge uses subsequent actions to determine intentions 13
Sylvan Lake Golf and Tennis Club Ltd. v Performance Industries Ltd. 13
Mistake in drafting, court lays out 4 requirements for receiving rectification 13
Paget v Marshall 14
If parties can’t agree on what the contract should be. If there is no clear intention, contract may be void ad idum 14
Chapter Six: Protection of Weaker Parties 14
2. Minors 14
Rex v Nash (NO RATIO COME BACK TO THIS) 14
Contracts with Children under the age of majority 14
Sales of Goods Act 15
The act governing minors 15
Nash v Inman 15
Children buying things, is the thing a “necessary” (return to this as well) 15
3. Forfeitures and Penalty Clauses 15
Shatilla v Feinstein 15
$10,000 in liquidated damages for breach of non-compete: penalty or liquidated damages 15
H.F. Clarke Ltd v Thermidaire Corp Ltd. 16
Note Case: liquidated damages will be read as a penalty clause if blatantly punitive 16
Stockloser v Johnson 16
What Case is about 16
4.Clauses Excluding Liability 17
George Mitchell Ltd v Finney Lock Seeds Ltd 17
Gives history of exemption clauses: notes that the focus now will be on who can better bear the risk 17
Photo Production Ltd. v Securicor Transport Ltd. ???? 17
Fundamental Breach? Allowing for freedom of contract when terms are explicit 17
Hunter Engineering Co. Inc. Et al. v Syncrude et al 17
Fundamental Breach put to bed by split SCC, focus is on unconscionability 17
Fraser Jewellers (1982) Ltd. v Dominion Electric Protection 18
Unconscionability 18
Davidson v Three Spruces Realty 18
Extreme abuse of freedom to contract constituting unconscionability 18
Delany v Cascade River Holidays Ltd. 19
Will liability clause be enforced(party died, death wasn’t mentioned in liability clause) 19
Tercon Contractors Ltd. v British Columbia 19
Settling the score on limitation clauses, 3 step test for limitation clauses 19
Tercon Note Cases 20
Rules for Liability Clauses 20
5.Unconscionability and Undue Influence 21
Post et al. v Jones et al 21
Unequal Bargaining Power, P has no choice but to accept terrible deal 21
Marshal v Canada Permanent Trust co. 22
Unequal bargaining: Party A purchases land from old man grossly underpriced 22
Mundinger v Mundinger 22
Unconscionability with a relationship where there is no typical mental weakness (abusive marriage) 22
Lloyds Bank Limited v Bundy 22
Proving there is undue influence 22
Credit Lyonnais Bank Nederland NV v Burch 23
What Case is about 23
Royal Bank of Scotland p.l.c. v Etridge (No.2) and Other Appeals 23
3rd parties to the contract and undue influence (Bank) 23
Mccaulay v A. Schroeder Music Publishing 24
What Case is about 24
Pridmore v Calvert 24
What Case is about 24
Horry v Tate 25
What Case is about 25
Woods v Hubley 25
3 criteria allowing unconscionable transactions to be voided 25
6.Duress 25
Greater Fredericton Airport Authority v NAV Canada 25
What Case is about 25
Chapter Seven: Public Policy 26
1.Introduction 26
7.The Effects of Illegality 26
Holman v Johnson 26
Vendor knows purchaser is using product to commit illegal act. = illegal contract? (nope) 26
8.Contracts Contrary to Public Policy Expressed in the Common Law 26
Egerton v Brownlow 26
Note case regarding the traditional view of how judges can use public policy 26
In the Matter of Baby “B” 27
Public Policy (public moral views on relationship of mother and child) inform law 27
3.a) Contracts in Restraint of Trade 27
Shafron v KRG Insurance Brokers (Western ) Inc. 27
Non-Compete Restrictive Covenant-> Validity of this 27
3.b) Contracts Related to Gaming 28
Boardwalk Regency Corp v Maalouf 28
Public Morality and Gaming 28
3.c) Contracts in Furtherance of illegal Purposes 28
Alexander v Rayson 28
Contract is valid but purpose of document is to defraud 3rd party->void 28
3.d) Contracts Conferring Benefits as a Result of Crime 29
Brissette Estate v Westbury Life Insurance Co. 29
Who gets life insurance if one spouse kills the other? 29
Oldfield v Transamerica Life Insurance Co. of Canada 29
Insured party dies committing crime: can beneficiaries receive insurance money? 29
9.Contracts Contrary to Public Policy Expressed in Statute 30
Kingshot v Brunskill 30
Contracts contravening statute, judge won’t do anything 30
Doherty v Southgate (Township) (KEY CASE) 30
D trying to take advantage of their own statutory failure, trying to void contract 30
4.b) A common Intent to Perform a Contract Illegally 31
Ashmore, Benson, Pease & Co. Ltd. v A.V. Dawson Ltd. 31
Contract is performed illegally ->contract is voided 31
10.Mitigating the Consequences of Illegality 31
5.a When the Claim is founded on an Independent Right 31
Mistry Amar Singh v Serwano Wofunira Kulubya 31
Illegal Lease, does property right transfer? Or can illegal tenant be evicted 31
5.b Restitution 32
Kiriri Cotton Co. Ltd. V Rachoddas Keshavji Dewani 32
Party is trying to recover money paid/property transferred under an illegal contract 32
Outson v Zurowski 33
Exceptions to the rule there can be no recovery under an illegal contract 33
5.b Severance of Illegal Provisions 33
William E. Thomson Associates Inc. v Carpenter 33
Loan contract has illegal interest rate, can interest rate be severed? 33
New Solutions Financial Corporation v Transport North American Express Inc. 34
Doctrine of “notional severance” as opposed to blue-pencil 34
11.A More Modern Approach? 34
Still v The Minister of National Revenue 34
Party acts in good faith but unknowingly behaves illegally -> should courts be harsh 34
Chapter Eight: Performance and Breach 35
1.Repudiatory Breach 35
Kingston v Preston 35
When can an action for breach be brought? 35
Note Cases 36
Rules of CivPro-bringing breach action + how paying damages isn’t a good solution 36
Bettini v Gye 36
How the Court determines if a stipulation is a condition precedent or an independent condition 36
Pussard v Spiers and Pond 37
Will damage caused by unintentional breach goes to root of contract and dissolve obligations) 37
Maple Flock Company, Ltd. v Universal Furniture Products (Wembley) Ltd. 37
Can a single breach justify rescinding entire contract? 37
12.Waiver and the True Condition Precedent 38
Panoutsos v Raymond Hadley Corporation of New York 38
P1 allows P2 to breach in small way, can P1 claim breach and rescind contract? 38
Turney and Turney v Zhilka (Lead case) 38
Waiving precedent conditions that are dependent on 3rd party for performance 38
13.The Position of the Party in Breach 39
Jacob Youngs, Inc. v Kent (Lead Case) 39
Do the parties have to provide “perfect” performance? Court defines principle of substantial performance 39
Hoenig v Isaacs 40
What is this about 40
Sumpter v Hedges 40
Can Party receive payment for partial performance if K requires full performance and then payment 40
Chapter Nine: Mistake 41
1.Introduction 41
14.Misrepresentations 42
Grotius article 42
When people can recover for errors regarding facts 42
Heilbut, Symons & Co. v Buckleton 42
If party can’t show a warranty it is just an innocent misrepresentation: how to show warranty 42
Bentley (Dick) Productions Ltd. v Smith (Harold) (Motors) Ltd.f 43
How to show something is a warranty 43
Redgrave v Hurd 43
P1 makes false representation, P2 finds out and refuses to perform 43
Newbigging v Adam 44
With innocent misrepresentation you don’t get full compensation, only get back obligations of contract, no “damages” 44
Kupchak v Dayson Holdings 45
Did a party affirm a contract induced by misrepresentation by minimizing damages? 45
Redican v Nesbitt 45
Rescinding innocent misrepresentation, won’t happen after full execution of contract 45
Leaf v International Galleries 45
In order to rescind contract you must bring action within reasonable time 45
O’Flaherty v McKinley 46
What is this about 46
Murray v Sperry Rand Corporation 46
Manufacturers who have made representations about products are liable to customers regardless of privity 46
4. Mistake About Contractual Terms 46
Hobbs v Esquimalt & Nanaimo Railway Company(IC) 46
What is this about 46
Raffles v Wichelhaus (IC) 47
What is this about 47
Seaiman Steel Ltd. v Commercial & Home Buildings 47
What is this about 47
Henkel v Pape(IC) 48
What is this about 48
Smith v Hughes (IC) 48
What is this about 48
5. Mistake in Assumptions 49
Bell v Lever Brother Ltd. 49
Solle v Butcher 49
What is this about 49
Magee v Pennine Insurance Co. 50
What is this about 50
Miller Paving Limited v B Gottardo Construction Ltd 50
What this is about 50
Scout v Coulson 50
What is this about 50
Sherwood v Walker 51
Mistakes that are based on categorical error regarding reality 51
McRae v Commonwealth Disposals Comm. 51
What is this about 51
Wood v Boynton 51
What is this about 51
Chapter 10: Frustration 52
15.The Rule of Absolute Promises 52
Paradine v Jane 52
What is this about 52
16.Relaxation of the Rule of Absolute Promises 52
Taylor v Caldwell 52
Supervening event occurs frustrating the contract, implied condition 52
Amalgamated Investment and Property Co. Ltd. v John Walker & Sons Ltd. 53
P buys property, next day supervening event makes it worthless: rescission? Maybe… 53
Capital quality Homes Ltd. v Colwyn Construction Ltd. 53
P purchases land but ability to develop becomes frustrated by legislation: judge says K is frustrated 53
Victoria Wood Development Corp v Ondrey 54
Goes back on Capitol, makes note of reasonable foreseeability, if supervening event is foreseeable contract for it 54
Howell Coupland 54
Contract is purchase of sale for specific items, if supervening event makes specific items unavailable K = frustrated 54
Canadian industrial Alcohol Company, Ltd. v Dunbar Molasses Company 55
P1 makes big K with P2 to supply X’s product, P1 does not K with X to ensure product -> not supervening, no frustration 55
Parrish & Heimbecker Ltd. v Gooding Lumber Ltd. 55
When it is an implied condition that the item delivered is specific 55
Krell v Henry 56
Classic Case establishing frustration, contract is fundamentally different 56
Aluminum Co. of America v Essex Group Inc. 56
Severe increase in financial burden on one party may (in America) frustrate contract 56
Eastern Air Lines v Gulf Oil Corp. 57
K will be frustrated due to impracticability if supervening event is foreseeable 57
Edwinton Commercial Corporation and Another v Tsavliris Russ 57
Will delay due to supervening event frustrate contract/prevent payment (comes down to foreseeability) 57
Tsakiroglou & Co. Ltd v Noblee Thorl G.m.b.H 58
Whether breach of an implied “customary” term frustrates contract (ie common sea route closed to ships) 58
Transatlantic Financing Corp v United States 58
Similar to previous, but actual charter contract as opposed to purchase of sale; 58
Davis Contractors Ltd. v Fareham Urban District Council 59
Good summary of frustration: Foreseeability? Was risk allocated? Root of matter? 59
Chapter Two: Remedies 60
1.The Interests Protected 60
Wetheim v Chicoutimi Pulp Company 60
Quote 60
Bollenback v Continental Casualty Company 60
Modern Restitution: Can receive deducted partial consideration + definitions 60
Anglia Television Ltd. v Reed 61
Reliance damages: Denning awarding wasted expenditure for breach of contract 61
Pitcher v Shoebottom 61
Damages for material breach (p agrees to buy land, d breaches and sells to third party) 61
Hawkins v McGee 61
Damages for breach of warranty for hairy hand 61
17.Problems in Measuring Damages 62
1.Cost of Substitute Performance or Economic Value? 62
Carson v Willitts 62
How should damages be rewarded if assessing amount is difficult 62
Groves v John Wunder Co 62
People’s ability to contract for worthless things. Damages = cost of performance, strong dissent 62
2.b Lost Volume 63
The Sales of Goods Act 63
General Rule for Breach of Contract to Supply 63
If the plaintiff has proved a breach he is entitled to be placed, as far as money can do it, in as good of a situation as if the contract had been performed 63
Thompson (W.L.) Ltd. v Robinson (Gunmakers) Ltd. (1955) 63
Party refuses delivery of cars. Dealership sues for lost profit. 48(3) Discusses available market. 63
Charter v Sullivan 64
Loss profits is the amount lost because contract is breached. If would have sold all anyways then no loss 64
18.Remoteness 64
Case British Columbia Saw Mills Co. v Nettleship 64
Not case: cases where a party’s negligence causes a remote damage are triky 64
Hadley v Baxendale(THE RULE) 64
when a breach/inadequate performance by B causes a damage to A that is unknown to B 64
Horn v The Midland Railway Company 65
When giving notice of potential remote damages, notice must give rise to contractual obligation 65
Note Cases 66
A person contemplates the performance and not the breach 66
Koufos v C. Czarnikow Ltd. (The Heron II) 66
Breach causing loss of profits: if its reasonably foreseeable breacher is liable 66
Transfield Shipping Inc. v Mercator Shipping Inc. (The Achilleas) 66
Are damages for reasonably foreseeable losses always imposed? Limited to liabilities parties reasonably expected to assume/pay for 66
Cornwall Gravel co. Ltd. v Purolator Courier Ltd. 67
What is this about 67
19.Intangible Injuries 68
Addis v Gramophone Company 68
Can’t receive damages other than what is listed in contract if the breach is malicious 68
Kolan v solicitor 68
Mental stress isn’t available 68
Jarvis v Swan Tours Ltd. 68
Usually can’t recover for mental duress, but this contract was specifically about mental enjoyment 68
Fidler v Sun Life Assurance Co. of Canada 69
GO TO IF THERE IS MENTAL DAMAGES: Affirms Hadley as THE rule 69
20.Punitive Damages 69
Whiten v Pilot Insurance 69
When punitive damages are justified because the person is terrible 69
21.Mitigation of Loss 70
Payzu Limited v Saunders 70
Duty of parties to mitigate economic loss: Can modify w/o consideration to mitigate loss then sue for breach 70
Roth & Co. v Taysen, Townsend & Co. 70
If one party repudiates and there is an open time frame for the contract the non-breaching party cannot just rely on breaching party to pay for losses 70
White & Carter (Councils) Ltd v McGregor 71
Dissent informs Laskin in next case: Repudiation does not end a contract 71
Finelli et al. v Dee et al. 71
Is a cancellation a rescission or repudiation? 71