COMM 304 – Business law – Flashcards
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Warranty
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- only protects the dealer/seller of the object under warranty - sign the warranty card you sign away your legal obligation to take the object back to the place of purchase for a full refund or replacement
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Sale of Good Act
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law says where you have not contracted yourself out there is a guaranty (implied) (so could get money back).
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Guaranty
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- legal right to take back the object to the place of purchase and get the money or the product exchanged. - Protection of consumer
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Certified cheque
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not a guaranty of payment only ensures that the money was in the account at the point where the check was certified -not a guaranty payment -> maker certifies check -guaranty payment -> if certified by payee
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3 parts of a court case
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1. Facts 2. Decisions 3. Reason for decision -> Ratio Decidendi (latin term)
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What is law?
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set of rules and regulations made by the people for the people to help govern the way of life and the lifestyle of society. Manmade maze
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Two main areas of law
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1. Statue (legislation) 2. Common Law
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Statue
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Government made law (Acts, Code, By-laws) -Skeleton of the law
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Common law
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Jurisdiction (Judge male law, stare decisions, case law, previous court decisions) -Vast area of law (7000+ pages)
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Do we need to know the law?
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Yes, Ignorance of the law is no excuse but can be used to reduce severity of the sentence.
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Jurisprudence
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parliament (federal govt, provincial govt) gives us the cold wordings, the skeleton of the law and leaves it up to the judges to interpret and give meaning to the law -precedent comes into play
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System of Jurisprudence
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Made up of Statute Law and Common Law
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Intention
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Can't have any crime without the intention
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Levels of power in province
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- Court of appeal - Queens Bench -> jury - Provincial court - Justice of the peace (JP) Ottawa - Supreme court of Canada
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Jurisdiction
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right, power and authority to administer justice
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Judicial Tribunals (juricidal hierarchy)
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jurisdiction - higher up the court the greater the jurisdiction
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Administrative Tribunal
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A body created by a specific statute to carry out the objectives of that statute Ex.) highway traffic board, every kinda board. every profession is run by an admin. tribunal sometimes referred to as Quasi-judicial (between admin and judicial a bit of both)
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Justice of Peace (JP)
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- Role: to settle very minor criminal matters in the past, now only in traffic/speeding tickets (traffic safety violations) called traffic justice. - empowered to release the people that have been arrested (minor offences) -> let out on bail -
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In court of law reasonable means:
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comparable standard - 12 reasonable people use common sense to admit guilt in the court of law.
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Provincial court (first real court)
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Deals with 95% + of all criminal cases - every civil charge starts here - small claim court -
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Civil Law
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Relationship between two individuals (state does not get involved) -if you lose you are liable
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Balance of probability
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is it probable that the plaintiffs case is true?--- if answer is yes then the defendant will be sued.
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Criminal law
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relationship between state and individual
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two types of criminal law
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- Summary conviction (less serious of criminal wrongs) - Indictable offence
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Standard proof
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State must prove Joe Browns guilty beyond reasonable doubt "beyond moral certainty"
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Summary Conviction
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- Carries a general penalty sentence of a fine up to $5000 and/or imprisonment of up to 6 months unless otherwise specifically stated
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Dual offences
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more that one offence
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Indietable Offence
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- Serious crime - Every indietable offence has its own penalty
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Murder 1
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- plan to kill (premeditated), cannot apply for parole until 25 years served. (ex. hide in bush and kill someone)
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Murder 2
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not planned (not premeditated), also mandatory life in prison, can apply for parole after 10 years (ex. husband hits wife with lamp after catching her cheating, didn't plan to kill her but intended to harm her)
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Manslaughter
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up to life in prison (less than murder), did not intend to kill but intended act of assault but person dies (e.g., hit someone and they fall and hit head and they die)
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Procedure of summary conviction
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in provincal court (absolute jurisdiction) - Indietable offence - person appears in provincial court and charges are read - Right of election - choice of where you want to be tried elect court - Queens bench - residing alone or with judge and jury -Provincial court judge fixes a date of preliminary court hearing held in the provincial court.
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2 objectives of preliminary hearing
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1st - for judge (provincial court) to hear all evidence - decides wheteher to send the case up for trial or discharge the person. 2nd - allows accused to hear all the evidence that the state has against them
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Committal for trail
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decided to be sent up to trial
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What is Onus of proof in a criminal proceeding
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rests upon the prosecution to prove me guilty beyond all reasonable doubt.
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Accused persons best defense is that of____?
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delay
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Who sits in jury?
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12 reasonable people
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hung jury
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Decisions of the jury must be unanimous, if not in consensus it is a "hung jury"
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All quasi criminal matters
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(grey area) not criminal, not civil Any offence that is not under the criminal code of Canada such as fishing without a license, bootlegging, speeding ticket, jaywalking, traffic tickets
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Small claims court
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- Cost $20 to be heard - Claims up to $25'000 - proceed in provincial court
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Court of queens bench
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- Deals with wills and estates - Familiy division deals with divorce etc.
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Spousal relationship
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Any 2 people regardless of sex that have cohabited together continuously for minimum 24 months
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Cohabitation
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Arrangements concerning shelter, social activity, sexual and personal behavior, domestic services, societal attitude, conduct respecting children, financial arrangements
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Continuously
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Temporary interruption (ex. work, military) will not void your continuous cohabitation.
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Divorce
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Federal legislation
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Grounds for divorce
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one - marriage breakdown - spouses separate for 1 yr or physical or mental cruelty
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Womens last name after divorce
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Keeps her name unless she goes trough an application to change her name.
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7 key defining factors, descriptive components of marriage cohabitation
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• arrangements concerning shelter (living together), • sexual and personal behavior, • domestic services(do they both look after cooking, etc?), • social activities (are they seen together, go out together), • societal attitudes (do people see them as a couple), • arrangements of financial affairs (do they share a bank account) • conducts involving children.)
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Annulment
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- 2 persons go through a form of marriage but not legally married (1 person usually thinks legally married) - If man marries 2 women (bigamy), the 2nd marriage is declared nullity (as if the marriage never took place, went through form of marriage but it is not legal and is annulled). - No division of property
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Custody and access rights
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- Who gets the children - Usually give one parent custodial rights and the other access rights - Best if parents can work this out themselves - Provincial law - Children's Law Act - deals with custody and access
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Maintenance
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- Act that deals with spousal support in a break up - Family Maintenance Act - deals with spousal support and child support - Child support until 18 unless kid goes to uni than until degree is done
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Adoption
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- take place through court or private adoption - Not easy to adopt child in Saskatchewan
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Apprehension
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- If children are neglected then (government) social services can go in and apprehend the children - Return children, contemporary apprehension of children, or permanently take children
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Filiation
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- Naming of the father to unwed mothers - Paternity - Find the father (ex. DNA test) - Payments are not tax deductible, taxes payable - Mother does not have to pay income tax on the maintenance paid to her.
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Pre-Nuptial Agreement (pre-spousal or pre-marital)
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Common along elderly You can exempt yourself from the family property act
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Interspousal agreement
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- after marriage - agreement between spouses - Encourage for breaking up couples to enter into interspousal agreements - save money because don't have to go to court
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Court of appeal
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- review court - 7 judges - right to appeal
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Supreme court
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- 9 Judges - not necessarily the right to appeal - reviews what took place in the trial court - can either uphold a conviction (Sustain), overrule (quach)
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Majority
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All judges decide one way
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Minority
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3/5 go one way, minority decision but majority rules
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En Banc
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when all 9 or 7 judges are on one trial - most often only 3, 5 or 7 judges on a case
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unanimous
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all agree
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dissenting judge
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the one that doesn't agree
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Appellate court
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• Review court (everything that happened in the lower court) • Don't listen to witnesses • Court decides to: o Sustain → no change o Set aside → quash o Order a new trial o Bury a sentence (upward or downward) o Bury an award of damages The decision
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Contract
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agreement between two or more capable people for legal consideration to do or not to do some lawful and genuinely intended act
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5 elements of a contract (requirements)
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- Capacities - Mutual agreement - Genuine Intention - Legal consideration - Lawful subject matter writing is not required only required for enforceable contract
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Contracts with infants
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- Infant under age of 18 - youth ages 12-18 - Contract is void or voidable (unless it is for necessaries)
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Necessaries
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befitting infants station of life (for higher standard of living) - sports car - student loans - education
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Contract with mentally incompetent individual
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Intoxicated/alcohol/drugs necessaries - liable non-necessaries - not liable
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2 things to prove in court to be mentally incompetent
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- satisfy court that person was incompetent - other party knew your condition
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Contract with person in Bankruptcy
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no legal right to enter contract unless for necessities
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Alien
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Not a citizen of this country
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contracts with aliens
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full capacity no difference than citizen
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Enemy alien
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person of another country where Canada is in a declared state of war (contract unlawful and illegal
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Sole Proprietorship
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- one person owns business - under your own name ( John Brown shoes repair) or something else (Ace construction) - one person entitled for all profits and liable for all losses
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Partnership
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- two or more persons - Partnership has no legal status only individual or corporation. - under law of Agency - joint and several liability -made up of two categories of persons: principal and agent - relationship between principal and agent is called "fiduciary relationship" - up most good faith
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Advantages of Sole proprietorship
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- entitled to all profits - Inexpensive to open
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Disadvantages of Sole proprietorship
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- Has to be registered - Unlimited liability - Responsible for all tortes - No division for income tax
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Law of agency
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every partner is agent of their partner 3 different relationships -principal and agent -employer and employee relationship -Owner and independent contractor
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Limited liability practice (LLP)
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protests only against other partners having to pay against negligence of one partner - applies to negligence
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Holding out
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inform all creditors that you no more a partner
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partnership ends with:
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- death - one partner advices that he is leaving -court order
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Drawback of a partnership
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if anyone of the partners dies partnership dies as well
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taxes in partnership
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pay taxes on what you are entitlement is, not what you draw out
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joint liability
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everyone is liable
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several liability
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person who was wrongfully done by can go after one
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firm name of corporations
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- Corporation - Company Limited - Ltd. - Corpn - Inc. - co. Ltd
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What is a corporation?
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an artificially created person (made up of shares) - no one can own a corporation (only shares)
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Corporation and criminal offenses
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- can commit criminal offenses - can't go to prison - heavy fines instead
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Articles of Incorporation
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how to open a corporation
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Business Corporation Act (provincial)
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provides for creation of his person and only carry one business in that province
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Federal Corporation Act
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can carry on business in all provinces
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Two types of corporation
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- Private - Public
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Private corporation
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cannot sell shares to the public at large
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Public corporation
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can sell shares to public in large and on stock market
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Prospectus
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brochure outlining history and details of the corporation (entire financial picture), any lawsuits (or possibility of) against it (mandatory and must be approved by the Provincial Security Commission). -must for public corporation
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Bylaws
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Rules that govern the corporation - Incorporation has full capacity to contract unless limited/restricted by bylaws
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ultra vires
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outside the corporation
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intra vires
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inside the corporation
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certificate of incorporation
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Birth certificate of the corporation
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Shell Corporation
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one that has just been incorporated and has nothing in assets.
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Subscribed capital
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amount of shares issued
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Two types of securities
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- Promissory note - Debenture Security
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Promissory Note
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(a promise of payment back, only as good as the persons promise who makes the note). To provide additional security can issue a debenture
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Debenture Security
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- Additional security (also called floating charge) - can take money back at any time - common when banks lend money to businesses
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corporate shield (corporate vail)
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protect 'A' and 'B's' personal assets from the corporation (shareholders never responsible, limits liability of shareholders)
