MCS 3040 midterm 2

what is a tort

a social or civil wrong that gives rise to the right to sue and to seek one of several remedies

what are the types of remedies

general, punitive, or injunction

what is tort law meant to do

compensate victims, act as a deterrent, and educate society

what is usually both a crime and a tort

wrongful conduct

what is tort laws ruling based on

the basis of probabilities (more likely than not to have happened)

is a tort always intentional

no it can be accidental (neglect)

what are general damages

pain and suffering or future lost wages

what are special damages

reimburse the litigant for expenses or costs incurred before the trial

what are punitive damages

to punish the wrongdoer (dragging out a trial)

what is vicarious liability

liability without personal fault

* employers responsible for the torts of employees

what is assault

conduct that makes a person think they are about to be struck

* includes threats

what is battery

when someone intentionally makes unwanted contact with another person

* intent to harm is not required

what is the difference between assault and battery

battery has to be physical, even if accidental, but assault can be only the threat of harm even if there was no actual harm caused

what are the 2 defences to assault and battery

consent is a defence and self defence

what is consent as a defence

* consent must be informed and voluntary
* physical touching beyond that consented to is battery
* consent can be outlined and limited (medical treatment)

what is self defence as a defence

necessary force to defend oneself or eject trespassers is permissible

what is trespassing on land

being on another’s land without lawful right or the owner’s permission

what is trespassing on chatels

intentional interference with the possession of personal property (unauthorized use)

what is trespassing to conversion

more serious form of interference with another person’s property right, involving a substantial interference with the property itself

what is trespassing on detinue

where a person is wrongfully retaining goods

* may have come into possession of them legally but refuses to return them

what is false imprisionment

the unlawful and intentional restraint of persons against their will


1. a persons liberty is totally restrained
2. restraint is unlawful

what is the defence against false imprisonment

494 of CCC restraint may be justified if they have done something to be arrested for

* causes issues if you can’t prove wrongdoing (grocery store stealing)

what is malicious prosecution

available to victims of improper use of criminal justice system

what are the conditions of malicious prosecution

1. the defendant must have initiated a criminal act
2. prosecutor wins or abandoned
3. prosecution motivated by malice
4. no reasonable grounds to have originally proceeded with criminal action

what is private nuisance

when a party uses property in such a way that is causes damage to property or interferes with a neighbours use of their property

* must be substantial and unreasonable

what is defamation

a detrimental false statement about someone; must be published or broadcasted

who has to prove the validity of a defamation claim

plaintiff establishes the claim, defendant must prove what they said was true

what is slander

spoken defamation

what is libel

mainly written defamation

what are the defences against defamation

1. truth
2. absolute privilege
3. qualified privilege
4. fair comment (can comment on public figures)
5. public interest and responsible journalism

what is injurious falsehood

protects an interest in a person’s property, products, or business

what is inducing breach of contract

commonly luring people to breach their current contract

what is intimidation

threat of violence or some other illegal activity forcing a party to do something that harms it

what is deceit

involves the fraudulent and intentional misleading of another person causing damage

what is conspiracy to injure

takes place where 2 or more persons act together using unlawful means to injure the business interest of another

what is passing off

piggybacking by misrepresentation, with the defendant trying to capture on the goodwill created by the plaintiff

what is misuse of confidential information

improper disclosure of information

what is invasion of privacy

takes the form of physical intrusion, surveillance, misuse of an image or name, or access to information

what is the federal privacy act

regulates government collection and use of private info

what is the tort of intrusion upon selection

someone who intentionally or recklessly intrudes on someone else’s privacy is liable to the other (sue)

what is negligence

inadvertent or unintentional careless conduct that causes injury or damage to another person or their property

what are the 4 elements of negligence

A duty of care

Breach of the standard of care

Causation

Damage

what is a duty of care

we owe a duty to anyone we can reasonably anticipate might be harmed by our conduct

(reasonable foreseeability test: if a reasonable person can foresee harm there is a duty of care)

what is misfeance

an act that causes harm to another

* court will provide remedy
* letting your child drown

what is nonfeasance

a failure to prevent an injury

* courts reluctant to provide remedy
* letting a random child drown

what is breach of the standard of care

once the existence of a duty is established the second an issue is whether the defendant demonstrated sufficient care

* reasonable persons test: what would a reasonable person have done in the situation

what is causation and damages

negligence requires a loss to a person or property

* no injury no negligence (can be mental and physical

what is the but for test

but for the action of the defendant, no injury would have occurred

what is the thin skull rule

we take our victims as we find them (responsible even if there were pre-existing but stable injuries)

what is the crumbling skull rule

not liable for damages that would have happened anyways

what are the 3 defences to a negligence claim

voluntary assumption of risk, contributory negligence, illegality

what is voluntary assumption of risk

if you assumed the risk when you participated, you cannot sue for negligence

what is contributory negligence

if they contribute to their own injury, they cannot sue (can split the responsibility between the 2)

what is illegality (negligence)

if the action was illegal, you cannot sue

what is occupiers liabilities

legal duty of care an owner has to anyone who comes onto the property

* applies to invitees, licencees, and trespassers

what is product liability

a manufacturer is liable for the injuries caused by defective products

* plaintiff must prove injury was a result of manufacturers neligence

what is insurance

transfers the risk from insured to the insurer (premiums increase as risk increases)

what kinds of insurance are there

liability insurance, property insurance, business interruption insurance, life and health insurance

what is a contract

a voluntary exchange of promises, creating obligations which, if defaulted on, can be enforced and remedied by the courts

what are the elements of a contract

1. consensus (mutual agreement)
2. consideration (the price each party is willing to pay to participate in the contract
3. capacity (legally capable of understanding)
4. legality (object and consideration involved in the agreement must be legal)
5. intention (must intend that legally enforceable obligations will result from the contract)

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are verbal agreements binding

yes, as binding as written ones

what is consensus

all parties understand and are willing to commit themselves to the terms

what is an offer

must contain all the terms, a communication of a willingness to be bound, all significant terms

what is an invitation to treat

an invitation to potential customers to exchange in the process of negotiation (articles promoting a sale invite ppl to negotiate)

what is the process to create a contract

invitation, negotiation, offer, counteroffer, and acceptance

what causes the end of an offer

1. offer ends at a specific time
2. after a reasonable time
3. at the death or insanity of the offerer
4. revocation of the offer
5. offer is rejected
6. counteroffer is put forward

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if you take the benefit of an offer

you are deemed to have accepted it

what is the adequacy of consideration

need not be fair, but unfair consideration may indicate undue influence, insanity, or fraud

what is promissory estoppel

deals with a person making a promise or a commitment to do something in the future

* only be a shield not a sword (defence not offence)
* relied on a gratuitous promise and its resulting damage

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what is capacity

parties must have the ability to contract

* some people are more vulnerable and receive special protection

can minors enter into a contract

no they cannot, minor in a contract with an adult can void at any time

when are minors bound by contracts

when they are necessary contracts , like employment

what is the ratification of a contract

the resigning of a contract when a minor comes of age, can be written or implied by obtaining benefit

are parents liable for their children’s contracts

not unless they guarantee it

can a breach of contract also be a tort

yes if there is an existing relationship

what are contracts performed illegally

contracts that are performed in an illegal way

* courts can enforce void contract and restore parties to their original positions

what are contracts formed illegally

the contract involves unacceptable or immoral conduct

* object cannot be against the law or public policy

when is intention to enter into a contract presumed

commercial and business relationships

not presumed in social or domestic relationships

when must contracts be written

under the statute of frauds

* lasts longer than a year
* land transactions
* guarantees
* goods sold over a specific value

what is misrepresentation

false statement of fact that persuades someone to enter into a contract

what are the 3 types of misrepresentation

innocent, fraudulent, negligent

are half truths misrepresentation

yes they are

what is innocent misrepresentation

the person making the claim honestly believes it to be true

* remedies are limited to recission (putting everyone back to where they were)
* bobs car that he didn’t know was crashed and said it wasn’t

what is negligent misrepresentation

carelessly providing false information

* must have 4 elements of negligence
* damages of negligence
* says property has never flooded even though they have never checked

what is fraudulent misrepresentation

exists when a false statement was made, knowingly or recklessly

* damages of rescission and damages for deceit
* lie about when a property was built to make a sale

what is duress

entering into a contract because of a threat

* must be the main reason they enter the contract

when does innocent misrepresentation turn fraudulent

when it is not corrected when the mistake is discovered

what is undue influence

pressure from a dominant trusted person takes away free bargaining

* contract is voidable

if the relationship is obvious who must prove

defendant must prove they didn’t pressure

if the relationship is not obvious who must prove

plaintiff must prove a relationship

what is an unconscionable transaction

permits the court to set aside a contract in which one party has been taken advantage of

* must be unreasonable

what is a mistake

an error that destroys consensus

* one party is confused
* applied 13% instead of 12% hst when it was recently changed

what is a misunderstanding

neither party is aware of the other party’s misunderstanding of the terms

* both parties are confused
* reasonable persons test
* misunderstanding of gesture during car sale

what is the privity of contract

contracts can only affect the parties who agreed to it

* exception when an agent acts on behalf of a principal

what is assignment

a person entitled to receive a benefit under a contract can transfer that benefit to a third party

* cannot transfer obligtion

what are the 4 ways of ending a contract

performance, breach, agreement between the parties, and frustration

what is discharge by performance

when obligations are completed, the contract is discharged

what is a condition

terms essential to substantial performance

* if breached victim is released of obligations
* selling a property by nov 30 and need the house painted by then and or they will break another contract
* Urgency

what is a warranty

minor terms of a contract

* performance is still complete
* house must be done by nov 30 (owners preference) but is finished on dec 1, no real urgency so it is a warranty

when is a contract considered breached

* improper or incomplete performance
* refusal to perform
* dresses made for a wedding but were so late they couldn’t be altered, so she doesnt have to pay for them