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Difference between revisions of "Clinician Guide for Consumer Transactions (11:X)"
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Clinician Guide for Consumer Transactions (11:X) (view source)
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*The terms of a contract should refer to such things as quality, terms of payment, and the time at which title is transferred. | *The terms of a contract should refer to such things as quality, terms of payment, and the time at which title is transferred. | ||
*The terms may be construed either as conditions, warranties, or innominate terms. The rights and remedies of the buyer will depend on how the terms of the contract are classified. This is discussed at length in [[Contracts for Sale of Goods (11:III) | Section III: Contracts for the Sale of Goods]]. | *The terms may be construed either as conditions, warranties, or innominate terms. The rights and remedies of the buyer will depend on how the terms of the contract are classified. This is discussed at length in [[Contracts for Sale of Goods (11:III) | Section III: Contracts for the Sale of Goods]]. | ||
*The form of the agreement(s) can be legally important. If there is a contract in writing, what is said about the subject matter of the contract may be characterized as representations | *The form of the agreement(s) can be legally important. If there is a contract in writing, what is said about the subject matter of the contract may be characterized as representations or as terms of the agreement. Section 8(1) of the ''SGA'' states (with qualifications) that a contract may be partly in writing and partly by word of mouth, or may be implied by the parties’ conduct. | ||
*Some contracts are statutorily required to be in writing, and moreover, some require that the writing conform to a strict format that is laid out either in an Act or by Regulation. The ''BPCPA'' is very strict on the form required for some contracts, as explained in detail in that section. | *Some contracts are statutorily required to be in writing, and moreover, some require that the writing conform to a strict format that is laid out either in an Act or by Regulation. The ''BPCPA'' is very strict on the form required for some contracts, as explained in detail in that section. | ||
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=== 5. Laches or Acquiescence, Waiver, and Estoppel === | === 5. Laches or Acquiescence, Waiver, and Estoppel === | ||
If a party allows the other party to proceed according to a mistaken assumption that is to the party’s own detriment, | If a party knowingly allows the other party in a contract to proceed according to a mistaken assumption that is to the other party’s own detriment, then the initial party may have acquiesced to the mistaken assumption by inaction, and it may be enforceable against them. | ||
The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | ||
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The Supreme Court of Canada has recently recognized that there is a general organizing principle of good faith and duty of honest performance in the context of Canadian contract law (''Bhasin v Hrynew'', 2014 SCC 71 at para 33). The duty of honest performance requires contracting parties to act honestly in the performance of contractual obligations. Note that this is not a fiduciary duty and parties remain free to act in their own self-interest, as long as they do not lie or mislead the other party. | The Supreme Court of Canada has recently recognized that there is a general organizing principle of good faith and duty of honest performance in the context of Canadian contract law (''Bhasin v Hrynew'', 2014 SCC 71 at para 33). The duty of honest performance requires contracting parties to act honestly in the performance of contractual obligations. Note that this is not a fiduciary duty and parties remain free to act in their own self-interest, as long as they do not lie or mislead the other party. | ||
Since the duty of honest performance applies generally, to all contracts, it would also apply to consumer transactions where one party has been dishonest or misled the other party | Since the duty of honest performance applies generally, to all contracts, it would also apply to consumer transactions where one party has been dishonest or misled the other party. | ||
== E. Determine the Limitation Period for Making a Claim == | == E. Determine the Limitation Period for Making a Claim == | ||
The ''Limitation Act'', RSBC 2012, c 13 sets out a general time limit of 2 years on starting any claim from the time that the claim is discovered (s 6(1)). Generally, a claim is discovered on the first day that a person knew or ought to have known that the injury, loss, or damaged had occurred and was caused (or contributed to) by an act or omission of the person against whom the claim is (or may be) made and that the court would be the appropriate means to seek a remedy (s 8). Usually this will be at the time of the act, but not always. If the person was (or is) a minor or was (or is) otherwise incapable of managing their affairs due to a disability special discovery rules apply (ss 18-19). There are also special discovery rules in the case of fraud, trust property, and securities amongst others (ss 12-17). In addition, certain acts provide exceptions to the general limitation period set out in the Limitation Act. For example, the ''Local Government Act'', RSBC 2015, c 1 sets out that an action against a municipality must be commenced within 6 months after the cause of action first arises (s 735). Because of this, you must carefully check through the acts associated with your cause of action to ensure that you will not miss a limitation date. | |||
If the claim was discovered before June 1, 2013, the former ''Limitation Act'' applies. At this point, the claim would be outside the limitation period unless there is an exception in the act for the type of claim brought. Under the former act, if the claim is for breach of contract, s 3(5) of the ''Limitation Act'', RSBC 1996, c 266 states that the limitation period for breach of contract is six years. However, under s 3(2)(a), where damages claimed arise from physical damage to persons or property, the limitation period is two years, even where the claim is based on contract. In addition, if the claim is for negligence as well, the limitation period is two years. | |||
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