Clinician Guide for Consumer Transactions (11:X): Difference between revisions
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Clinician Guide for Consumer Transactions (11:X) (view source)
Revision as of 20:26, 14 June 2016
, 14 June 2016→B. Check the Form and Terms of the Agreement
Desy Wahyuni (talk | contribs) (Created page with "{{LSLAP Manual TOC|expanded = consumer}} == A. Determine the Client’s Position and Desired Outcome == *'''Ask to see the contract.''' Reading the terms as they are written...") |
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*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 rather than 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. | *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 rather than 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. | ||
== C. Determine Whether the Contract Complies with the Statutory Requirements == | |||
If the contract does not comply with the statutory requirements, inform the client of any available defences against legal actions by the other party, possible legal actions by the client, available statutory remedies, and the appropriate action for the client. | |||
== D. Determine Whether Any Common Law Remedies are Available == | |||
Where the statutes do not apply, there may still be a common law defence available. | |||
=== 1. No Obligation === | |||
In order to enforce the terms of a contract, there must be a contract and the particular terms must be enforceable under that contract. | |||
=== 2. Misrepresentation === | |||
Misrepresentation occurs when a party is induced to enter a contract based on a false statement. The remedies available depend on the nature of the misrepresentation. See section IV.I for more information on misrepresentation. 3.Frustration If performance of the contract is impossible due to circumstances that arise after the contract was signed and that were outside of either party’s control then the contract can be found to have been frustrated, and ongoing obligations under the contract will cease to apply. Once frustration is found to have occurred at common law, the Frustrated Contract Act will apply to adjust the rights and liabilities of each party and to appropriate restitution. 4.Mistake Mistake is defined at common law as a fundamental misunderstanding between the parties to a contract. There are three categories of mistake: common, mutual, and unilateral. A common mistake exists when both parties make the same mistake. For example, the subject matter of the contract may not exist or was destroyed prior to the agreement. A mutual mistake exists when the parties make a different mistake, e.g. a purchaser wanted type A widgets and the vendor thought he or she ordered B widgets, so there is disagreement as to a term of the contract. This is usually an offer and acceptance issue, for both parties have to come to agreement for there to be a contract in the first place. A unilateral mistake exists when one party is mistaken about the obligations that he or she has assumed. This is a difficult defence because a court is unlikely to excuse the party from obligations on account of his or her unilateral mistake, unless the other party was aware of the mistake. | |||
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