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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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, 20:40, 14 June 2016→D. Determine Whether Any Common Law Remedies are Available
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*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 '''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 '''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. | *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. | ||
=== 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, that party may have acquiesced to it by inaction. | |||
The doctrine of laches becomes relevant if one party unreasonably delays pursuing a claim, and the other party is thereby prejudiced. | |||
Promissory estoppel occurs when one party promises not to enforce his or her rights under the contract. In such a case, and where the other party has relied on the promise, it may be inequitable to allow the first party to later enforce the right. For an example of how promissory estoppel can be raised, see ''Central London Property v High Tress House'' [1947] 1 KB 130. | |||
In some circumstances, a party to a contract can waive rights within the contract. It may be possible to retract the waiver with reasonable notice. | |||
=== 6. Unconscionability, Undue Influence, and Duress === | |||
Unconscionability, undue influence, and duress can all make a contract voidable. There are two requirements for unconscionability: an imbalance in the relationship of the parties, and an imbalance in the contract. Unconscionability is also dealt with in the ''BPCPA'', ss 8-10. See ''Morrison v Coast Finance Ltd'' (1965) 55 DLR (2d) 710 and ''Harry v Kreutziger'' (1978) 95 DLR 93d) 231 for examples of unconscionability. Undue influence is the abuse of a relationship of trust and confidence to strongly influence another to make a contract. See ''Geffen v Goodman Estate'' (1991) 2 SCR 353 for an example of undue influence. Duress is the coercion of the will to the point where it vitiates consent. | |||
=== 7.Illegality In the past, Canadian courts would not enforce those contracts created for an illegal purpose. A leading case in this area is International Paper Industries Ltd. v. Top Line Industries Inc., [1996] B.C.J. 1089, in which a lease for a portion of land was declared invalid, preventing the tenant from exercising the option to renew, because the land was subdivided contrary to the Land Title Act, RSBC 1996, c 250. Today, courts may enforce contracts made for an illegal purpose if inequity would otherwise result, or if the purpose of the governing statute is not undermined. See Still v Minister of National Revenue, [1998] 1 FC 549 (CA). The Court will consider the purpose and object of a statutory prohibition when deciding whether or not the contract is enforceable. Continental Bank Leasing Corp v Canada, [1998] 2 SCR 298, at para 67 in particular offers a good summary of the law of illegality. E.Determine the Limitation Period for Making a Claim With a new Limitation Act, SBC 2012, c 13 now in force, it is vital that students determine whether the new or the old legislation applies to a particular legal matter. If the act or omission occurred after June 1, 2013, the new Act applies and the basic limitation period of two years set out in s 6(1) applies. Note, however, that if the claim was discovered before June 1, 2013, the former Limitation Act applies. If the former Act applies and the client is suing 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 | |||
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