Difference between revisions of "Clinician Guide for Consumer Transactions (11:X)"

* '''Ask to see the contract.''' Reading the terms as they are written is the first step in analysing the contract and determining its meaning.  

 

* '''What did the client and the other party agree to do, and how did that party agree?''' Clients tend to focus on the personal consequences of a transaction. That a contract or its execution is inconvenient to the client is not helpful unless the client has a legal remedy. Determine the subject matter of the contract and the understandings surrounding it. It should be ascertained as early as possible what other terms or representations were made surrounding this contract as what is written on paper may not accurately communicate the parties' agreement.

 

* '''What were the written and oral understandings?''' Under traditional common law, a contract had to be either all written or all verbal. The ''SGA'' permits a contract to be partly in writing and partly by word of mouth, or implied by the conduct of the parties (s 8). The ''BPCPA'' states that parole (verbal) or extrinsic evidence can be admissible evidence toward understanding what agreements the parties made (s 187). Further, there is extensive case law supporting the position that one cannot induce another party to enter a contract with verbal representations and then refuse to act on those representations because they are not in the written contract.

 

* '''Did the client receive all of the statutorily required information when entering the contract?''' The ''BPCPA'' sets up significant notice and information requirements that, if unmet, may invalidate the contract.   

 

* '''What outcome is the client looking for?''' Does the client want damages? Or to get out of a contract? Or some other remedy? The client may need assistance in resolving these questions. Frequently, a client will feel wronged but have no clear idea what their rights are or what solutions they would find acceptable.

 

* '''When the client arranged the transaction, did they do so primarily for personal, household, or family purposes, or for business purposes?''' In many situations, the ''BPCPA'' will not apply to non-consumer transactions. The SGA, on the whole, protects all buyers, although some rights may be weaker if the buyer is a business rather than a consumer.

 

* '''Was the client cheated, misled, or bullied in the transaction?''' If the answer is yes, the ''BPCPA'' or common law rules against misrepresentation or unconscionable conduct may apply.

 

* '''Has the client in any way acquiesced to the actions of the other party, or waived their rights?''' According to s 3 of the ''BPCPA'': “Any waiver or release by a person of the person’s rights, benefits or protections under this Act is void except to the extent that the waiver or release is expressly permitted by this Act”. Furthermore, the ''SGA'' allows some of the rights or duties under a contract of sale to be set aside (ss 20 and 69). At common law, if a party waives rights, they may be estopped from later insisting on them.

 

* '''Has the other party already performed all or part of the obligations?''' The ''SGA'' provides that if the buyer has accepted part of the goods, and the contract is not severable, the buyer can no longer treat the contract as terminated for breach without an express or implied term in the contract allowing so (s 15(4)). However, they may be entitled to damages for breach of contract in that situation. This position is subject to qualification. For instance, under s 23 of the ''BPCPA'', concerning future performance contracts, the buyer is entitled to cancel the contract for up to a year when the supplier has not made the appropriate disclosures required by the Act.

 

* '''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 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 (s 62). Letting the other party know may be the simplest 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.

 

* '''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 (BCSC)], 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.