Download User_11251922017moaiadgutahAssignment1

Assignment 1
Question 1: Explain and discuss three ways lawyers bill their clients. Which of the
three is most commonly used?
I.
Hourly Rate. Some lawyers charge by the hour, even though in some instances the
billing varies depending on the location, experience, and, nature of the case. Senior
lawyers tend to charge more than lawyers just starting the practice. The client pays only
for the amount of time the lawyer spends in court, exclusive of the time spent
researching. Much more, one also pays for the support staff of the lawyer though the rate
is slightly lower than that which the attorney receives. Besides, a good attorney should
provide the estimated time he or she will spend on the court. The hourly fee is the most
commonly applied by lawyers.
II.
Flat Fee. Lawyers charge a flat fee for more cut-and-dry cases. The fee covers all
the work irrespective of the amount of time that the agent will spend on the case. It is
important for the client to be aware of the fees that the tax will not cover. Much more,
this type of payment is always used for specific types of transactions, such as the
purchase of a house or declaration of a will. Besides, the fee is also applied by some
lawyers when representing a client in minor criminal charges.
III.
Contingency Fee. Under this tax, the lawyer takes a certain percentage of the
monetary settlements that the client will receive for damages. It applies mostly to civil
lawsuits, such as those arising from medical malpractice and litigations due to personal
injury. Moreover, the contingency fee must be in writing and must not be applied to
family cases involving child custody. Besides, it must be approved by the court and the
maximum allowed for cases involving personal injuries must not exceed one-third of the
compensation.
Question 2: Using the principles of stare decisis, explain how judges determine
whether or not they are bound by another judge’s decision in a similar case.
It is important to note beforehand that the supreme court of Canada is not bound
by any court to stick to its prior decisions or those of another court. The stare decisis is a
concept of law that requires judges to abide by the decisions they made earlier in a
similar case to the one they are presently handling in a high court. However, the concept
is largely influenced by the supreme court. Much more, the stare decisis is subject to the
court hierarchy. For instance, if a judge is involved in a case in BC and the case is taken
to the Court of Appeal, then the judge would be required to follow the decision made by
the Court of appeal or that made by a judge in the Supreme Court of Canada. The same
applies only if the two cases are similar. Furthermore, a process referred to as
distinguishing the facts is used by the judges to determine the particular instance that has
a binding precedent. To clarify, the judges compare the events with the relevant issues to
arrive at a solid judgment.
Question 3: List and describe the principal advantages of alternative dispute
resolution.
There are some advantages associated with alternative dispute resolution:
I.
It saves time and resources for the courts as there will be less crowding of cases
and fewer costs consequently. Besides, considering that there is no attorney for the
process, the parties save money.
II.
It creates the possibility of restoring previous relationships among the conflicting
parties since it is a less strict method of resolving misunderstandings. Besides, having an
effective mediator can help to strengthen the relations.
III.
Both sides have similar control over the process. Thus, they have the ability to
determine their destinies and potential outcomes of the case.
Question 4: Distinguish between defamation, trade slander, and deceit, indicating in
what situations each would be used.
Defamation occurs as a result publishing a statement that is detrimental to the
victim. The statement should be either false or derogatory and should be published or
communicated to a third party. More important, it should be referring to the plaintiff. For
instance, if a media house publishes a newspaper with information that a particular
individual is a pedophile yet he or she is not, litigation may apply. The plaintiff has the
right to file a defamation case against the media house. Much more, that statement should
be false and refer to him by names.
On the other hand, trade slander is a form of defamation or injurious false information
published against a product or service. If a company spreads false rumors about a
competitor, then it can be sued for trade slander. Much more, Deceit occurs as a result of
deliberate distortion or providing misleading information with the aim of gaining
personal or corporate interests. For instance, a company that provides misleading
information to the auditor faces a lawsuit for deceit.
Question 5: Why is the case of Haig v Bamford considered important in the recent
development of tort law?
In the case of Haig v. Bamford, the accountants inattentively prepared financial
statements for a business that they wanted to benefit from by buying shares. Thus, the
case provoked the developments in tort law, in particular for cases regarding negligence.
The court found the accountants guilty of the same, and their act was considered a
violation of the tort law. Even though the analysts may not have known, the shareholders
were aware of the errors in the financial statements. However, there was no evidence that
the analysts tried to consult with the shareholders. Therefore, it was eminent that the
shareholders were going to use the false statements. It was on the basis that it was
foreseeable that the investors would rely on these declarations. As a matter of fact, it was
the first case of this kind in Canada that extended to the third parties. Considering the fact
that it was presented to the supreme court, it thus set the pace for similar cases to follow.
For instance, the Hercules case was handled based on the Haig V. Bamford case.
Question 6: Explain the role of implied terms in a contract. Who has the power to
imply terms into a contract? When will the power be used?
Implied terms within a contract are applied to shorten a long process significantly.
Much more, they ensure no room for the parties concerned to make errors or manipulate
the situation for personal benefits. For instance, if an individual is contracting to purchase
a house, then the implied terms will hold that at the time of purchase the house is in the
same good condition as on the day of the contract. Besides, when buying an item, it is
implied that the person intends to use the item in the manner that it was expected to be
done at the time of purchase. However, it is only the court that has the discretion to imply
inconsequential terms which the two parties may not have outlined at the date of
purchase. Besides, there are exceptional situations in which the court would consider a
particular industry.
Question 7: Give five examples of contracts deemed by the courts to be against
public policy and describe the effect of such a designation.
I.
A contract that unjustifiably confines business between two parties. As a matter of
fact, such restrictive measures should be a reasonable and justified failure to which the
act would be considered to be against the rule of law.
II.
A contract that pertains to a gamble. Different states have varying statutes
regarding this situation. Thus, the court can only enforce it upon approval by the rules of
the particular condition of the parties involved.
III.
A contract that requires an immoral act. For instance, bribery and prostitution are
considered to be against the public policy. Practically, a practice cannot file a lawsuit
against a client for nonpayment.
IV.
A contract that obstructs justice. Distortion of evidence and manipulation of
witnesses are acts that not only obstruct justice but are also against the public interest.
V.
A contract either restraining a marriage or encouraging divorce. That means that
any agreement to pay one party to prevent a marriage from taking place is against the
public interest.
Question 8: Explain how fraudulent, negligent and innocent misrepresentations
differ. Identify the remedies that are available for each type of misunderstanding.
Innocent misrepresentation occurs when an individual in a contract makes
misleading statements without knowledge that he or she is doing so. Besides, it can be
corrected through rescission; the court intervenes to bring the two parties back to an
understanding. On the contrary, fraudulent misrepresentation is when a party deliberately
makes false statements that trick the other party in the contract. The situation can be
corrected through remedies. Much more, a victim of negligent misrepresentation is
entitled to for rescission and damages. The situation arises when the defendant claims not
to have known the statements were misleading. Besides, he or she should provide
reasonable ground why he believed the remarks in the first place.
Question 9: Distinguish among duress, undue influence, and unconscionability and
give examples of each.
Duress is a situation that arises when parties are forced to enter a contract against
their will. As a matter of fact, it is a subject of situations that arises when individuals are
threatened with job insecurity. For instance, when a manager threatens to sack a key
employee if they do not agree to their terms, it is said to be a case of duress. Furthermore,
duress is when people are forced into entering contracts against their will. It can be a
threat of violence, a threat of loss of employment, or even incarceration. For example, if a
person threatens to burn the others’ house down unless they sell their house to them, that
would be duress and a voidable contract. On the other hand, undue influence occurs when
two parties are in a partnership, but one side has excessive dominance in the coalition,
making it difficult for the other party to negotiate fairly. Much more, inconsiderable
transactions are those in which one individual in a partnership takes absolute advantage
over the other. For instance, an individual that uses language in a legal context which the
other party has no personal knowledge may be said to have undue influence.
Question 10: Distinguish between specific performance and injunction. Explain the
restrictions on their availability.
Specific performance is a court order that requires a party that breached a contract
to fulfill some previously stated obligations. For instance, if two people agreed to sell a
piece of land, but the seller later decides to withdraw from the contract, then specific
performance will be applied. Then the court can order the dealer to perform a particular
function by selling the property as previously agreed.
Injunction occurs when the court orders for the breaching party to desist from
aggressive conduct. For instance, if a contract indicated that a party could not start its
business near the competitor, but the person goes ahead and does it, the plaintiff has the
right to order an injunction to stop the rival. However, restrictions can be imposed if the
injunction may harm the third parties.
Case Studies
Chapter 2, Case 2, p 61: Dartmouth/Halifax v Sparks
The Residential Tenancies Act explicitly excepts parties residing in public houses.
Therefore, Mrs. Sparks reserves the right to challenge decision as unconstitutional. As a
matter of fact, it is a violation of the Equality Rights as stipulated in Section 15 of the
Charter of Rights and Freedom. Besides, Mrs. Sparks could argue based on grounds of
discrimination since she is a black and a single mother of two. Furthermore, the public
houses are served for the disadvantaged and those with low income. Much more, Section
15 of the Chatter also requires that all people be entitled to protection under the law.
Unfortunately, the Residential Tenancies Act denies the tenure benefits to this
disadvantaged group while extending the same to individuals in private housing. As can
be seen, Mrs. Sparks has the rights to take the argument to court and sue for
discrimination and inequality.
Chapter 4, Case 3, p 133: 369413 Alberta Ltd v Pocklington.
The Alberta government was the major creditor to the Gainers. Actually, the
government had an agreement that the Gainers would not sell or transfer assets to the
third party without first notifying the authorities. Conflicts rose when Pocklington signed
a director’s resolution and transferred shares worth millions of dollars to his company.
On the contrary, the state had no consent to the activity. The most controversial part is the
fact that the transfer took place hardly a day before Alberta issued a notice of its
objectives to exercise its rights. Thus, it is highly likely that Pocklington anticipated the
move, thus transferring the shares to be out of reach for the Alberta state.
In general, two torts were technically committed in this situation. As can be seen,
Gainers breached the contract while Pocklington induced a violation of the agreement.
Thus, Gainers are liable to litigation by the state. However, from an accountant’s point of
view, shares are equity and not assets. Therefore, Pocklington could argue that the shares
were not assets, thus being not covered by the agreement. Much more, he was working on
personal interest and did not care if it affected another contract.
Chapter 5, Case 1, p 177: Roper v Gosling
The Alberta Court of Appeal established a two-stage enquiry to be undertaken by
a court to determine the issue of contributory negligence. The inquiry categorically stated
that “it is a precondition to a finding of contributory negligence that the acts or omissions
of two or more persons each is efficient causes of the damage or loss for which
compensation is claimed” ("Roper v. Gosling, 2002 ABCA 71", 2016). Taking into
consideration that the two were intoxicated, it would be difficult to conclude that Gosling
knew Ropers judgment was impaired, thus being unable to drive them safely. Besides,
there was no suggestion that Roper encouraged Gosling to drink and smoked yet the two
sat together all the time at the bar. Moreover, Roper had the reputation as a good driver
until that fateful evening. Thus, the case cannot be ruled as a contributory negligence
since there was no evidence that she ought to have known that Roper’s judgment was
impaired.
Chapter 6, Case 1, p 206: Wembley v ITEX
It is clearly evident that there was a binding contract between Wembley and
ITEX. Thus, the forum selection clause had to be enforced. In the absence of fraud or
misinterpretation, the two parties are bound by the law to conform to the agreements
made. Much more, whether one party chooses to read the terms or not, they still have to
stick to the contract requirements. Besides, failure to read the conditions of the contract
does not amount to a legally accepted reason for go against the initial agreements. In
addition, there is no evidence to suggest that the party was forced to get into a contract.
As a matter of fact, it is assumed that an individual presiding a business deal on behalf of
a company is acutely aware of the terms and conditions that the firm will be bound. To
add, the writings were not only clear and unambiguous but also exact to the deal. ITEX
made their due diligence, while Wembley did not.
Chapter 9, Case 4, p 301: 652013 BC Ltd v Kim.
The plaintiff had the right to recover judgment for the accelerated amount.
Besides, it was the role of the defendant to ensure that all the six lights were functioning
at the time of the lease. As a matter of fact, the issue of trees blocking some of the lights
does not count since it was not part of the agreement. Therefore, the court would possibly
rule for the plaintiff.
Reference
Roper v. Gosling, 2002 ABCA 71. (2016). Caselaw.canada.globe24h.com. Retrieved 15
June 2016, from http://caselaw.canada.globe24h.com/0/0/alberta/court-ofappeal/2002/03/15/roper-v-gosling-2002-abca-71.shtml