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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)
Revision as of 18:23, 14 August 2020
, 18:23, 14 August 2020→A. Determine the Client’s Position and Desired Outcome
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*'''Has the client expressed their concerns to the other party?''' The other party may not know there is a problem. Where the other party has not been put on notice that there is a problem, issues of estoppel and acquiescence may enter into play. The ''Law and Equity Act'', RSBC 1996, c 253, s 62 provides that a party to a contract may, instead of refusing to perform a disputed obligation, perform the obligation under protest if they give reasonable notice to the other party that the performance is under protest, and then perhaps receive compensation for that obligation if it is beyond what was required in the contract. Letting the other party know may be the most simple and cost effective way to resolve any problems arising from a consumer transaction. | *'''Has the client expressed their concerns to the other party?''' The other party may not know there is a problem. Where the other party has not been put on notice that there is a problem, issues of estoppel and acquiescence may enter into play. The ''Law and Equity Act'', RSBC 1996, c 253, s 62 provides that a party to a contract may, instead of refusing to perform a disputed obligation, perform the obligation under protest if they give reasonable notice to the other party that the performance is under protest, and then perhaps receive compensation for that obligation if it is beyond what was required in the contract. Letting the other party know may be the most simple and cost effective way to resolve any problems arising from a consumer transaction. | ||
*'''Is either party unable to perform the obligations due to circumstances beyond that party’s control?''' If so, the common law around frustration of contracts and the ''Frustrated Contract Act'', RSBC 1996, c 166 may apply to the transaction. | *'''Is either party unable to perform the obligations due to circumstances beyond that party’s control?''' If so, the common law around frustration of contracts and the ''Frustrated Contract Act'', RSBC 1996, c 166 may apply to the transaction. | ||
*'''Was the client’s attention drawn to any onerous provisions in the contract?''' ''Tilden Rent-A-Car Co v Clendenning'' (1978), 18 OR (2d) 601, 83 DLR (3d) 400 (Ont CA) states that a party seeking to rely on onerous terms in a standard form contract should take reasonable measures to ensure that the other party is aware of those provisions. In ''Karroll v Silver Star Mountain Resorts'' (1988), 33 BCLR (2d) 160, 47 CCLT 269 (BC SC), however, the Court found that there is no general requirement to bring onerous terms to the attention of a signing party; only circumstances in which a reasonable person would have known that the party signing was not consenting to those onerous terms create an obligation on the party tendering a document for signature. | *'''Was the client’s attention drawn to any onerous provisions in the contract?''' ''[https://www.canlii.org/en/on/onca/doc/1978/1978canlii1446/1978canlii1446.html?autocompleteStr=Tilden%20Rent-A-Car%20&autocompletePos=1 Tilden Rent-A-Car Co v Clendenning]'', (1978), 18 OR (2d) 601, 83 DLR (3d) 400 (Ont CA) states that a party seeking to rely on onerous terms in a standard form contract should take reasonable measures to ensure that the other party is aware of those provisions. In ''[https://www.canlii.org/en/bc/bcsc/doc/1988/1988canlii3094/1988canlii3094.html?autocompleteStr=Karroll%20v%20Silver%20Star%20Mountain%20Resorts%20&autocompletePos=1 Karroll v Silver Star Mountain Resorts]'', (1988), 33 BCLR (2d) 160, 47 CCLT 269 (BC SC), however, the Court found that there is no general requirement to bring onerous terms to the attention of a signing party; only circumstances in which a reasonable person would have known that the party signing was not consenting to those onerous terms create an obligation on the party tendering a document for signature. | ||
== B. Check the Form and Terms of the Agreement == | == B. Check the Form and Terms of the Agreement == | ||
