LAW 122 - Exam Definitions PDF

Preview

Summary

LAW 122 DEFINITIONSRisk Management – the process of identifying, evaluating, and responding to the possibility of harmful events. Law – a rule that can be enforced by the courts. Civil Law – traces history back to Rome. Jurisdiction – a geographical area that uses the same set of laws. Common Law – ...

Description

LAW 122 DEFINITIONS Risk Management – the process of identifying, evaluating, and responding to the possibility of harmful events. Law – a rule that can be enforced by the courts. Civil Law – traces history back to Rome. Jurisdiction – a geographical area that uses the same set of laws. Common Law – traces history to England. Public Law – concerned with governments and the ways in which they deal with their citizens. Constitutional Law – provides basic rules of our political legal systems. Administrative Law – concerned with the creation and operation of administrative agencies, boards, commissions, and tribunals. Criminal Law – deals with offenses against the state. Tax Law – concerned with the rules that are used to collect money for public spending. Private Law – concerned with the rules that apply in private matters. Tort – private wrong, generally consists of a failure to fulfill a private obligation that was imposed by law. The Law of Contracts – concerned with the creation and enforcement of agreements. The Law of Property – concerned with the acquisition, use, and disposition of property. The Constitution – the document that creates the basic rules for Canadian society, including its political and legal systems. Division of Powers – states the areas in which each level of government can act. Residual Power – gives the federal government authority over everything that is not specifically mentioned. Doctrine of Federal Paramountcy – determines which law is pre – eminent based on the Constitution’s division of powers. Property Rights – rights to own and enjoy assets. Economic Rights – rights to carry on business activities. Parliamentary Supremacy – while judges are required to interpret constitutional and statutory documents, they must also obey them. Legislation – law that is created by Parliament or a legislature. Subordinate Legislation – the terms given to regulations that are created with the authority of Parliament or the legislature. By-Law – a type of subordinate legislation that is created by a municipality. Trust – exists anytime that one person owns property for the benefit of another. Litigation – the system of resolving disputes in court. Class Action – allows a single person, or a small group of people, to sue on behalf of a larger group of claimants. Certification – represents the court’s decision to allow various claims to e joined together and to proceed as a class action. Professional Liability Insurance – allows a client to receive compensation from a lawyer’s insurance company if the lawyer as acted carelessly. Assurance Fund – provides compensation to people who have been hurt by dishonest lawyers. Paralegal – not a lawyer but provides legal advice and services. Pleadings – the documents used to identify the issues and clarify the nature of a dispute. Plaintiff – the person who is making the complaint. Defendant – the person about whom the complaint is being made. Limitation Period – a period of time within an action must be started. Statement of Claim – a document in which the plaintiff outlines the nature of the complaint. Statement of Defence – a document in which the defendant sets out its version of the facts and indicates how it intends to deny the claim. Counterclaim – a claim that the defendant makes against the plaintiff. Reply – a document in which a party responds to a statement of defence. Demand for Particulars – requires the other side to provide additional information. Examination for Discovery – a process in which the parties ask each other questions to obtain information about their case. Settlement – occurs when the parties agree to resolve their dispute out of the court. Pre-trial Conference – a meeting that occurs between the parties and a judge. Mediation – a process in which a neutral person – called a mediator – helps the parties reach an agreement. Evidence – consists of the information that is provided in support of an argument. Hearsay evidence – information that a witness heard from another person, rather than directly from the source. Judgement Debtor – a defendant who has been found liable and ordered to pay money to the plaintiff. Appeal Court – decides whether a mistake was made in the court below. Appellant – the party who attacks the decision of the lower court.

Respondent – the party who defends the decision of the lower court. Costs – the expenses that a party incurred during litigation. Contingency Fee Agreement – requires a client to pay their lawyer only if the lawsuit is successful. Small Claims Court – a type of court that deals with disputes involving limited amounts of money. Doctrine of Precedent – requires a court to follow any other court that is above it in a hierarchy. Rule of Law – disputes should be settled on the basis of laws, rather than personal opinions. Administrative Tribunal – a body, somewhere between a government and a court, that resolves issues and disputes that arise in administrative law. Private Clause – a statutory provision that attempts to prevent a court from exercising judicial review over a tribunal decision Judicial Review – a process aimed at determining whether an administrative body’s decision is valid. Rules of Natural Justice – require that, in some circumstances, a decision must be the product of a fair process. Certiorari – brings an administrative decision into a court to have it struck down. Prohibition – offers an administrative body not to proceed with a matter. Mandamus – directs an administrative body to perform its duties correctly. Declaration – issued by a court to provide an enforceable statement of a parties’ rights and obligations. Alternative Dispute Resolution (ADR) – any process that allows the parties to resolve their dispute without going to court. Negotiation – a discussion aimed at settling a dispute. Mediation – process in which a neutral party – called a mediator – helps the parties reach an agreement. Arbitration – a process in which a neutral third person, called an arbitrator, imposes a decision on the parties. Tortfeaser – a person who has committed a tort. Liability Insurance – a contract in which an insurance company agrees, in exchange for a price, to pay damages on behalf of a person who incurs liability. Duty to Defend – requires the insurance company to pay the expenses that are associated with lawsuits brought against the incurs liability. Compensatory Function – aims to fully compensate people who are wrongfully injured. Deterrence Function – discourages people from committing torts by threatening to hold them liable for the losses they cause. Vicarious Liability – occurs when one person is held liable for a tort that was committed by another person. Independent Contactor – a worker who is not closely connected to the employer’s business as is an employee. Remote – a loss is remote if it would be unfair to hold the defendant responsible for it. Punitive Damages – intended to punish the defendant. Nominal damages – symbolically recognize that the defendant committed a tort even though the plaintiff did not suffer any loss. Injunction – a court order that requires the defendant to do something or refrain from doing something. Alternative Compensation Scheme – a system that allows a person who has suffered an injury to receive compensation without bringing an action in tort. Intentional Torts – involve intentional, rather than merely careless, conduct. Assault – the tort of assault when the defendant intentionally causes the plaintiff to reasonably believe that offensive bodily contact is imminent; not based on physical contact. Battery – the tort of battery consists of offensive bodily contact; it is enough if the defendant causes something, such as a knife or a bullet, to touch the plaintiff. False Imprisonment – the tort of false imprisonment occurs when a person is confined within a fixed area without justification. Malicious Prosecution – the tort of malicious prosecution occurs when the defendant improperly causes the plaintiff to be prosecuted. Trespass to Land – the tort of trespass to land occurs when the defendant improperly interferes with the plaintiff’s land. Chattels – moveable forms of property. Trespass to Chattels – the tort of trespass to chattels occurs when the defendant interferes with chattels in the plaintiff’s possession. Conversion – the tort of conversion occurs when the defendant interferes with the plaintiff’s chattels in a way that is serious enough to justify a forced sale. Detinue – the tort of detinue occurs when the defendant fails to return to a chattel that the plaintiff is entitled to possess. Recaption – the right of recaption allows a person to take their own property back. Complete Defence – protects the tortfeasor from all liability. Consent – exists if a person voluntarily agrees to experience an interference with their body, land, or goods. Legal Authority – provides a person with a lawful right to act in a certain way. Self-Defence - consists of the right to protect oneself from the violence and the threat of violence.

Necessity – the defence of necessity applies if the defendant’s actions were justified by an emergency. Partial Defence – allows a court to reduce damages on the basis of plaintiff’s own responsibility for a loss or an injury. Provocation – consists of words or actions that would cause a reasonable person to lose self-control. Contributory Negligence – occurs when the plaintiff is partially responsible for the injury that the defendant tortuously caused. Conspiracy – the tort of conspiracy usually occurs when two or more defendants agree to act together with the primary purpose of causing the plaintiff to suffer a financial loss. Intimidation – the tort intimidation occurs when the plaintiff suffers a loss as a result of the defendant’s threat to commit an unlawful act against either the plaintiff or a third party. Two-Party Intimidation – occurs when defendant directly coerces the plaintiff into suffering a loss. Three-Party Intimidation – occurs when the defendant coerces a third party into acting in a way that hurts the plaintiff. Interference with Contractual Relations – occurs when the defendant disrupts a contract that exists between the plaintiff and a third party. Direct Inducement to Breach of Contract – occurs when the defendant directly persuades a third party to break its contract with the plaintiff. Indirect inducement to Breach of Contract – occurs when the defendant indirectly persuades a third party to break its contract with the plaintiff. Unlawful Interference with Economic Relations – may occur if the defendant commits an unlawful act for the purpose of causing the plaintiff to suffer an economic loss. Deceit – the tort of deceit occurs if the defendant makes a false statement, which they know to be untrue, with which hey intend to mislead the plaintiff, and which causes the plaintiff to suffer a loss. Occupiers’ Liability – the tort of occupiers’ liability requires an occupier of premises to protect visitors from harm. Occupier – any person who has substantial control over premises. Visitor – any person who enters onto premises. Premises – include more than land, ex. vehicles, elevators. Nuisance – the tort of nuisance when the defendant unreasonably interferes with the plaintiff’s use and enjoyment of their own land. Statutory Authority – the defendant caused a nuisance while acting under legislation. Rule in Rylands v Fletcher – the defendant can be held strictly liable for their non-natural use of land (land that creates special danger) if something escapes from their property and injures the plaintiff. Defamation – the tort of defamation occurs when the defendant makes a false statement that could lead a reasonable person to have a lower opinion of the plaintiff. Slander – a defamatory statement that is spoken. Libel – defamatory statement that is written. Publication – occurs when a statement is communicated to a third party. Justification – occurs if the defendant’s statement is true. Privilege – an immunity from liability. Public Interest Responsible Journalism – occurs when a journalist, despite getting some facts wrong, acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear. Fair Comment – an expression of an opinion regarding a matter of public importance. Injurious Falsehood – occurs when the defendant makes a false statement about the plaintiff’s business that causes the plaintiff to suffer a loss. Negligence – the tort of negligence determines whether a defendant can be held liable for carelessly causing injury to the plaintiff. Duty of Care – exists if the defendant is required to use reasonable care to avoid injuring the plaintiff. Standard of Care – tells the defendant how they should act. Reasonable Person Test – requires the defendant to act in the same way that a reasonable person would act in similar circumstances. Product Liability – can occur when a person is injured by a product. But-for-Test – requires the plaintiff to prove that they would not have suffered a loss but for the defendant’s carelessness. Remote – a loss is remote if it would be unfair to hold the defendant responsible for it. Thin Skull – a thin skull case occurs if the plaintiff was unusually vulnerable to injury. Intervening Act – an event that occurs after the defendant’s carelessness and that causes the plaintiff to suffer an additional injury. Contributory Negligence – occurs when a loss is caused partly by the defendant’s carelessness and partly by the plaintiff’s negligence.

Voluntary Assumption of Risk – applies if the plaintiff freely agreed to accept a risk of injury. Illegality – may apply is the plaintiff suffered aa loss while participating in an illegal act. Contract – an agreement that contains legally enforceable rights and obligations. Meeting of the Minds – a shared decision to enter into a legal transaction on a particular basis. Exchange of Value – occurs when the parties each give up something. Intention to Create Legal Relations – arises if a reasonable person wold believe that the parties intended to create a legally enforceable agreement. Offer – an indication of a willingness to enter into a contract on certain terms. Offeror – a party who offers to enter a contract. Offeree – a party who receives an offer to enter into a contract. Invitation to Treat – an indication of a willingness to receive an offer. Revocation – occurs if the offeror withdraws an offer. Firm Offer – occurs when the offeror promises to hold an offer open for acceptance for a certain period. Option – a contract in which the offeror is paid in exchange for a binding promise to hold an offer open for acceptance for a specific period. Tender – an offer to undertake a project on particular terms. Rejection – occurs when the offeree refuses an offer. Counter-Offer – occurs when an offeree responds to an offer by indicating a willingness to enter into a contract but on different terms. Bilateral Contract – occurs when a promise is exchanged for a promise. Acceptance – occurs when an offeree agrees to enter into the contract proposed by the offeror. The General Rule – states that acceptance by instantaneous communication is effective when and where it is received by the offeror. Instantaneous Communication – any form of communication in which there is little or no delay in the interaction between the parties. Non-Instantaneous Communication – any form of communication that involves substantial delay between the rime it leaves one person and reaches another. Postal Rule – states that an acceptance that is communicated in a non-instantaneous way is effective where and when the offeree sends it. Unilateral Contract – occurs when an act is exchanged for a promise. Gratuitous Promise – a promise for which nothing of legal value is given in exchange. Consideration – exists when a party either gives (or promises to give) a benefit to someone else or suffers (or promises to suffer) a detriment to themselves. Sufficient Consideration – may be almost anything of value. Adequate Consideration – has essentially the same value as the consideration for which it is exchanged. Forbearance to Sue – a promise to not pursue a lawsuit. Mutuality of Consideration – requires that each party provide consideration in return for the other party’s consideration. Past Consideration – consists of something that a party did prior to the contemplation of a contract. Pre-Existing Obligation – an obligation that existed, but was not actually performed, before the contract was contemplated. Seal – a mark that is put on a written contract to indicate a party’s intention to be bound by the terms of that document, even though the other party may not have given consideration. Estoppel – a rule that precludes a person from disputing or retracting a statement that they made earlier. Promissory Estoppel – a doctrine that prevents a party from retracting a promise that the other party has relied upon. Stranger – someone who did not participate in the creation of the contract. Privity of Contract – refers to the relationship that exists between the individuals who create a contract. Assignment – a process in which a contractual party transfers their rights to a third party. Assignor – the contractual party who assigns their contractual rights. Assignee – the stranger to whom the contractual rights are assigned. Debtor – the original contracting party against whom the assigned right can be enforced. Equitable Assignment – an assignment that was traditionally enforced by the courts of equity. Subject to the Equities – means that the debtor can generally use the same defences and counterclaims against the assignee that they could have used against the assignor. Statutory Assignment – an assignment that conforms to the requirements of a statute. Vicarious Performance – occurs when a contractual party arranges to have a stranger perform their obligations. Trust – occurs when one person holds property on behalf of another.

Trustee – the person who holds the property on behalf of the other. Beneficiary – the person on whose behalf the property is held. Himalaya Clause – a special term of contract that protects a third-party beneficiary from liability. Sole Proprietorship – exists when a person carries on business on their own, without adopting any other form of business organization. Unlimited Personal Liability – of a sole proprietor means that third parties may take all the sole proprietor’s personal assts to satisfy the business’s obligations. Business License – government permission to operate a certain kind of business. General Partnership – a form of business organization that comes into existence when two or more persons carry on business together with a view to a profit. Fiduciary Duty – requires a partner to act honestly and in good faith with a view to the best interests of the partnership. Limited Liability Partnership – individual partners are not personally liable for the professional negligence of their partners and some others obligations if certain requirements are met. Holding Yourself Out – as a partner occurs when you represent yourself as a partner or allow someone else to do so. Default Rules – in partnership statutes are a kind of standard from agreement for the internal organization of a partnership that applies unless the partners agree to some other arrangement. Dissolution – the termination of the partnership relationship. Limited Partnership – a partnership in which the personal liability of at least one partner is limited to the amount of the partner’s investment in the business. Articles of Incorporation – set out the fundamental characteristics of the corporation. General By-Law – sets out the arrangements for carrying on the legal business of the corporation. Shareholders’ Agreement – a contract between shareholders that customizes their relationship. Minute Book – a book in which corporate records are kept. Dividend – a payment of cash or property by the corporation to shareholders hat is authorized by the directors. Limited Liability – shareholders cannot lose more than they invest in the corporation in return for their shares. Pierce the Corporate Veil – a court may pierce the corporate veil by disregarding the separate legal existence of the corporation to impose personal liability on a sha...