Legal Environment for Business

Legal Environment for Business

• Business law encompasses tort law, contract law, business organizations, land law, intellectual and industrial property, and environmental law.
• Salmond defines law as principles applied by the state in administering justice.
• Holmes views law as circumstances under which public force is used through courts.
• Blackstone describes law as civil conduct rules prescribed by state authority.
• Law serves settling disputes, establishing conduct rules, and providing individual protection.

Customary Law

• Customary law evolves from community practices.
• Tribunals hear disputes and enforce restitution.

Pre-Norman England

• Early courts and laws came from invaders.
• Roman law (lex romana) was uniform.
• Germanic influence led to decentralized government under a king.
• Land was divided into shires and counties, each with its own government.
• The Crown, representing the state, pronounced law.
• Penalties were in monetary terms.

Norman England and Common Law

• The Norman Conquest of 1066 centralized administration and the judicial system.
• Records improved, leading to the development of the Common Law.
• Common Law is found in court judgments and is known as “case law”.
• Stare decisis means "to stand by a previous decision".
• Common law is more flexible than a civil code.
• Canon Law, developed by church courts, dealt with matters within their jurisdiction.
• Post-Reformation (1534-38), royal courts took over jurisdiction.
• "Church law" became part of the Common Law.
• Equity rules are based on Crown decisions, which were intended to be fair.
• Equity takes precedence over common law when conflicts arise.

Statute Law Creation

• Bill = proposed law not yet in effect.
• Motion to read a bill happens first.
• If a bill passes second and third readings, it proceeds to the Senate for approval.
• Royal Assent = approval from the Crown.
• Proclaimed = when a law becomes effective.
• Revised statutes are updated or amended.

Administrative Law

• Administrative laws pertain to administrative tribunals or boards.
• Regulations are procedural rules under a statute.
• Administrative tribunals are agencies created to regulate activities.
• Power is delegated from the Legislative body to the Tribunal or Board.
• Decisions may be subject to judicial review.

Canadian Constitution

• The Canadian Constitution entails the Canadian Charter of Rights and Freedoms, and the British North America Act.
• Section 91 outlines Federal powers.
• Section 92 outlines Provincial powers.
• Federal government = all matters not specifically given to the provinces.
• The Charter sets out basic Canadian rights and freedoms.
• Entrenchment in the Constitution makes it difficult to change.

Right to Due Process

• Right to be informed of arrest or detention reasons.

Aboriginal Rights

• Section 25 dictates that No Charter rights can diminish aboriginal or treaty rights to freedoms of Indigenous peoples, including land claims.
• Section 35 affirms existing Aboriginal and treaty rights at Charter inception.
• It also defines "aboriginal peoples" as Indian, Inuit, and Metis and clarifies treaty rights.

Enforcement of Rights for Governments

• Charter states persons can apply to a court law for remedy if rights/freedoms have been violated.
• Charter applies to governments only, not individuals.
• Provincial human rights legislation deals with private matters.
• The Charter recognizes other rights and freedoms like those of Indigenous peoples.
• The Charter entrenches fundamental rights and freedoms.
• Rights not specifically entrenched may be infringed by governments, like property rights.
• The Charter applies to territories, provinces, and legislative powers.

Early Law Reform

• The Supreme Court began its development; also streamlining of the judicial process.
• Formal procedure was gradually reduced.
• In 1982, the Charter of Rights and Freedoms came into effect.
• The Court became the main interpreter of individual rights and freedoms

Judicial Law Structure

• Jurisdiction is a court's right/authority to hear/decide a dispute, or deal with particular case types.

Judicial System in Action

• Open courts promote access to hearings/services, transparency, and trust.
• COVID-19 allowed access to justice.

Civil Court Procedure

• Pleadings create written statements prepared by individuals that explain the facts and grounds for legal action.
• Claim = the injured party issues a writ of summons against defendant.
• Defence = defendant prepares a statement of defense with supporting facts
• Discovery = evidence procedure

Witnesses

• Ordinary witnesses testify about first-hand knowledge/experience (direct evidence.)
• Expert witnesses give opinions within their expertise areas.

Hearsay Evidence

• Courts require "best evidence", which is facts instead of fake third-party gossip.

Contingency Fees

• Lawyers are only paid if the case is won.

Alternative Dispute Resolution

• Mediation relies on a mediator with settlement suggestions.
• Arbitration relies on an arbitrator rendering a binding decision.

Legal Profession

• Solicitors = lawyers preparing documents who traditionally did not appear in court.
• Barristers = lawyers who represent clients in litigation or criminal court.
• In Canada, attorneys are both solicitors and barristers.

Defamation

• Libel is published slander with widespread circulation.
• Slander is false verbal statements or gestures harming reputation.
• Possible defences:
  • Absolute privilege protects the speaker regardless of truth.
  • Qualified privilege protects good faith statements without malicious intent.
  • Fair comment applies to newspapers.

Interference with Land and Chattels

• Two principal torts regarding property laws are trespass and conversion of goods.

Conversion and Willful Damage to Goods

• Wrongful taking/refusal to deliver goods to the lawful owner is conversion.
• Courts grant monetary damages to remedy converted goods.

Business-Related Torts and Crimes

• Businesses partake in improper practices causing injury to others via untrue statements about competitors' products.
• Injurious falsehood is false statements about a firm, its products, or business practices.

Unfair Business Practices

• Business practices exploit consumer ignorance.

Negligence

• Individuals and businesses interfere unintentionally with person or property.
• Proximate cause is a cause of injury from a defendant's act.
• But For test determines "but for" the defendant's actions, would injury/damage not have occurred

Vicarious Liability

• Vicarious Liability is one person's liability for the acts of another.

Res Ipsa Loquitor

• Res Ipsa Loquitor = indicates evidence of negligence.

Occupier's Liability

• Occupier's Liability applies to omissions of occupiers, not owners.

Manufacturers’ Liability

• Traditionally, care was only owed to the purchaser of goods, not the user.
• Now, manufacturer's owe duty of care to any foreseeable users of their products if.

Nuisance

• Remedies subject to nuisance are damages and/or injunction.
• A court order restrains a person from certain acts.

General Tort Defences

• Contributory negligence stems from the injured party's contribution to their injuries.
• Voluntary assumption of risk = voluntary assumption of risk of injury
• Act of God is a natural disaster or calamity beyond human control.
• Waiver is expressed or implied renunciation of a right or claim.
• Release> promise not to sue or press a claim, or a discharge of a person from any further responsibility to act.
• A statute of limitations specifies time limits for bringng forward an action,
• The Doctrine of laches states there is no relief when a person delays actions for too long.

Tort Remedies

• Compensatory damages are monetary awards to restore the injured party.
• Purpose is to undo the harm done through special & general damages
• Punitive/Exemplary damages sets am example.
• Injunctions/Court Orders directs a party to stop doing a described act, contempt of Court causes refusal to obey a Judge's Order.
• The Order of replevin allows a person to recover wrongly taken goods.
• Nominal damages occur when a tort does not result in a monetary loss.

Fiduciary Duty of Care

• This duty places a client's interests above the professional's own.

Tort Duty of Care

• Professionals must maintain proficiency standards/exercise care according to chosen profession.
• Negligent misstatements breach this duty.

Freedom of Contract

• Parties create own "law" and create rights/duties that courts enforce.

Historical Development

• Feudal system meant each manor was self-sufficient with barter trades.
• Manor courts handled minor cases.

Legal Relationship Intention

• A contract's premise concludes with a meeting of the parties' minds (consensual agreement).
• Consensus ad idem needs an agreement of intent.
• Presumption in contract law is to assume the parties/strangers intend to comply with promises
• Essential Element is a Promise/intentions to be bound.
• A Legal relationship needs to be created.

Offer and Acceptance

• A promise made with intent may be enforced.
• Tentative Promises = until compliant, other part accepts proposal, to comply with the conditions
• Unilateral agreements require offerees to complete the contract as a mode of acceptance.

Click Effect Timing

• Electronic contracts include valid offer and acceptance.
• Click-wrap agreement uses internet "I Agree" click box = contract acceptance.

Offer Lapse

• Lapse terminates unaccepted offer time/counteroffer/death.

Consideration

• Consideration needs value in law, given in return for a promise.
• Gratuitous promises lack consideration.
• Exceptions: Negotiable instruments = Person may owe for Promissory note to endorser
• Courts don't consider if receiver earned consideration.
• Seals and/or tenders (invitation to submit offers) provide guarantees that can also provide legal standing
• Quantum Meruit means "As much as he has earned.
• Equitable or Promissory Estoppe states it's unfair if someone denies withdrawal of promised (estopped promise).
• Estoppel rules allow no evasions or promises,

Minors contract rules

• Executed can be enforced against minors unless they were taken advantage of.
• Executory contracts may not be enforceable against them.
• Courts determine what is necessary for a minor based on:
  • Social position and circumstances
  • if they already have similar goods,
  • The duty is on the merchant to distinguish whats important verses whats luxury
• Minors on Contracts can be liable for:
  • Necessities: food, clothing, shelter, transport, etc.
  • Beneficial contracts: like employment contracts

Minors Engaged in Business

• Sole proprietors must repudiate before majority/bound after- it is un-necessary for minors to be doing business at all
  • Rules similar to ordinary minors
  • As members they can continue to accept the benefits from the contract and will be bound
• Partnerships:
  • Voidable at minors option.

Mental Impairment

• Permanent M.I persons committed in Mental facilities can't be held liable as contracts contracts are void
• Responsible for reasonable prices for good/services- otherwise known as: *Contracts for non necessarys, can be avoided if they can't comprehend and action isn't known

Corporations

• Regular corporations operate as natural persons _ Special act are powers controlled with a Special Act/Statute
• Limits are public knowledge, a Ultra vires can't happen beyond authority.
• Labor unions have abilities to enter agreements that are allowed under legislation

Trade Restraint

Three Categories:

• Competition Act agreements, with vendor/purchares with limited right.
• Agreements between employees/employers that unreasonable terminate a relationsip
• Sales and agreements of business that limit behaviour of parties to reason and are reasonable

Statute of limitations

• Certain contracts can't be enforced in non written like the Fraud statute:
  • Land contracts.
  • Excercutor promises to claims, guarantee aggrements.
  • Contracts that can't happen in a year Executors of administrators must collect documents of a party and look after deceased personell

Guarantoe and liability

• Guaranteo/collateral must be written of debt and other contract, third parties answer claims if written Written Memoriandom Parties and property described price must be a paid one unless stated

Parol Evidence

• Parol Evidence prevents people from evidence that has been introduced or altered contracts must be satisfied if coming into effecft

Implied Term

• Standard custom terms are added from the courts

• Collateral : are agreements and supported

Agreement

A subsequent agreement is one made that must alter a contract.

Goods Act

• Important statute needs certain transactions values unenforceable