Assignment 1: Business Law Essay.

There are 9 Questions in this Assignment covering class material and Chapters 1-10 excluding Chapter 3, with one question from each Chapter. This Assignment counts 10% toward your final grade in the course and is marked out of 60 points. The points or marks for each question are indicated after each question. Please answer each of the 9 Questions paragraph style or paragraph style with points. Save your file as a Word file and upload in the Assignment link in the Course Site at COTROnline. Please answer the questions using your own words and reference the textbook and/or appropriate Case Law using APA style.

1. Briefly describe the main reasons that some business disputes must be resolved in court.
2. The application of precedent in a common law system is subject to a number of rules. Outline the rules judges must apply when considering how much weight to give a precedent case.
3. Explain the nature of negotiation as an alternative dispute resolution method used in a business setting. Include a brief description of the technical rules that govern the operation of the negotiation process, the parties involved in preparing for negotiations, who should conduct the negotiations, and the elements required for a negotiated resolution or settlement to be reached.
4. Identify and briefly describe the necessary elements that must be present in order for a court to recognize a contract as a legally binding agreement.
5. Identify the source of a competing analysis of the traditional common law view of unenforceability of a gratuitous promise. Provide a brief explanation of the competing analysis and explain the goal it was meant to achieve.
6. The use of electronic communications creates difficulties in the application of contract law. Some jurisdictions have implemented legislation based on the recommendations of the Uniform Law Conference of Canada. Discuss.
7. What interests do the courts balance in deciding whether a noncompetition covenant, preventing an employee from leaving and going into competition with her former employer, is enforceable? What is the test applied by the courts?

Main Reasons Business Disputes Must be Resolved in Court

1: Generally speaking, precedent can be described as the authority or the guidance of past decisions regarding their future cases. Only the decisions that provide a new rule or principle can be described as judicial precedent. However there are different principles that are related with the application of such judicial decisions under the common law. These principles are known as the doctrine of precedent. These rules of president can be described as follows:

Ratio Decidendi: the meaning of this legal maximum is "the reasoning behind the decision". The ratio decidendi of the judges barred forms president instead of the sanction or the remedy that has been delivered. While the verdict.

Obiter dictum: this legal maxim is related with the additional statements that are made by the court but which are not a part of the "ratio decidendi". These statements are related with legal issues and may be persuasive for the decisions delivered by the courts in the future.

Binding precedent: it is obligatory for the lower courts to follow the precedent that has been said by the higher courts in same hierarchy, and in case of similar cases. This is known as the principle of stare decisis or in other words, to standby what has been decided. In order to be binding, it has to satisfy the below mentioned criteria.

The precedent should come from a higher court

The precedent should come from the same court hierarchy

The facts of the precedent should be considerably similar to the case in hand.

Persuasive precedent: The meaning of persuasive precedent is, that the courts are not required to follow a particular decision delivered by the court, but it may be influenced by such decision. In order to be persuasive, it is required that the precedent should satisfy any of the below mentioned criteria.

• A decision delivered by a lower court
• A decision delivered by a court on the same level
• An obiter dictum statement
• A court outside the hierarchy of the courts, for example, an overseas on interstate court.

2: (a) The court system in Canada provides for the judicial branch of the government, which is formally called the Queen on the Bench. It has the responsibility of interpreting the law. It is made up of several courts, differing in level of legal superiority and are separated by jurisdiction. While some of these courts are of federal nature, the others are provincial in nature. According to the Constitution of Canada, exclusive right has been given to the federal government to legislate criminal law. On the other hand, exclusive control has been given to the provinces regarding the civil law. Jurisdiction has been given to the provinces for administration of justice in their territory. Nearly all the cases, whether civil or criminal, start in provincial courts, and eventually an appeal may be made to higher-level courts.

Rules for Judges in Applying Precedent in Common Law System

(b) In the present case, the case against Cranbrook Company will start in provincial court.

(c) This principle points south towards the inability of the colonial regime to assume proper stewardship role and fill the void.

3: In the present case, a friend who was started by guiding business wants advice. Before, starting with the process of incorporation of the business, it is necessary to name the Corporation. Every corporation should have a name. The name needs to be distinctive and should not be misleading. It should not be likely to confuse with the names that are being used by other businesses and organizations.

The next step is completing the articles of incorporation. The structure of corporation is established with the help of this step. However, an application can be made to change the structure of the Corporation after the businesses operating. The articles of incorporation has to be signed by the incorporator(s). The articles of incorporation can be in the official language of your choice. The next step is to establish the initial registered office address of the corporation and the first board of directors. The registered office address is where all the corporate records have to be kept. It is this address where the official documents can be served on the Corporation. The next step is to fill the appropriate forms and pay the fee. There are a number of methods provided by Corporations Canada of filing. In the fifth step, the processing of application takes place. It is made sure by Corporations Canada that the articles of incorporation have been completed properly. It also needs to be seen if the host name is acceptable. Therefore, an application is considered to be complete if it includes all necessary documents; (ii) the forms have been completed and signed; and (iii). The fee has been paid.

4: It is possible to resolve a business dispute with the help of alternative dispute resolution processes. These processes can be used in place of litigation. A number of advantages are available to the parties if they decide to resolve their dispute by using these processes instead of litigation. For example, a business has to deal with a dispute that has arisen as a result of equipment breakdown. Such a dispute can be resolved by using the method of mediation. The mediation is an ADR process where the parties meet with a mediator for resolving their legal issues without taking recourse to legal action. The process of mediation is voluntary. As a result, the parties have agreed to work with the mediator for resolving the dispute. Similarly, the use of the process of mediation cannot be forced on the parties. Although there may be some variation in the process, but generally there are five below mentioned mandatory tasks involving all successful mediations. These are:

Nature of Negotiation as Alternative Dispute Resolution Method in Business Setting

Agreeing to mediate;

Understanding the problem or problems;

Generating options;

Reaching agreement;

Implementing the agreement.

The process of mediation to be particularly helpful where the parties to the dispute need and desire to have an ongoing relationship. As a result of the consensual process in mediation, the parties can avoid adversarial elements of litigation due to which, it usually becomes impossible to continue having a productive relationship after the dispute has been solved. Another advantage is the creative approach adopted in mediation towards dispute resolution that is not governed by strict procedural rules. The result is that the parties may design process that suits your requirements. It also encourages the consensual instead of an adversarial approach. As a result of the presence of mediator, the parties can openly discuss settlement options. This allows the mediator to become privy to the interests and the positions adopted by the parties.

5: A contract can be described as an agreement that has been created between two or more parties and that is enforceable by law. However, in order to be valid, there are certain elements that should be present in the agreement.

Offer and acceptance: in case of every valid contract, offer and acceptance are the vital aspects. First of all an offer has been made by one party. The offer contains all the significant and the relevant terms of the agreement (Applebey, 2001). Secondly, the other party has to agree to these terms and conditions. In other words, the party has to accept the offer.

Consideration: consideration is also a vital element of a valid agreement. When either party has accepted the offer, it is required by the law that something of value (or service) should be exchanged between the parties that are involved in the agreement. This is known as consideration. The other elements that should be present in the agreement for this purpose are publicity, consent and lawful purpose. Under the law, it has been provided that in case of every valid contract the parties to the agreement should have the ability or the capacity of understanding the nature and the terms of the contract (Cheshire, Fifoot and Furmston, 1986). This is known as the capacity to contract. There are certain persons who lacked this capacity. For example, a minor does not have the capacity to form a valid contract. In the same way, lunatics also lack the capacity of forming a valid contract (Monahan, 2001).

Elements of Legally Binding Agreements Recognized by Courts

The next requirement is of free consent. The parties to the agreement should agree to or freely give their consent to the terms that have been provided by the agreement. On the other hand, there are certain factors due to which the consent of the party may be initiated. These factors include undue influence, duress, force or fraud, etc. in the end, it is also required that every contract negotiated in Canada should be formed for lawful purpose (Steven and Sons, 1977). On the other hand, if the purpose of the contract is to violate any law, such contract is not a valid contract.

6: Under the law of contract, it is possible to make an amendment in the contract. In this regard, an amendment can be described as a minor change that has been made to a document like an addition, deletion or a correction. The contract addendum is the written record of such change(s) made by the parties. Therefore, when the parties are willing to change a particular term of the contract, generally it is easier to amend the contract instead of creating a whole new contract. By putting the changes in writing as a separate document to the original contract for using contract addendum can prevent any confusion or misunderstanding between the parties. Most of the contracts can be amended if the parties have agreed to these changes. In some cases, the contract may be required to be amended for reflecting a change that has taken place in the law (Stone, 2002). However, generally the amendments are made in the contract for accommodating the needs of one or both the parties. Generally, amendments are made to modify the duration of the contract, the obligations of one or both of the parties, the due dates or payment amounts, terms of service or terms and conditions of employment.

However, it needs to be noted in this regard that a legally enforceable contract that is present between two or more parties can be modified only if all the parties to the contract have agreed to such modification. The consent of the parties can be knowledge by signing the contract addendum. Therefore in such a case, small changes can be made to the contract without having the need for creating a completely new contract. As a result, the terms of the original contract that have not been modified are still enforceable.

Competing Analysis of Traditional Common Law View of Unenforceability of Gratuitous Promise

In NAV Canada v Greater Frederiction Airport Authority Inc., the court had taken a definitive step in this direction when the court decided that the promised to pay more for performing a pre-existing duty can be enforced even if the promise is not supported by fresh consideration. It appears to be a distinctly positive development and modern approach adopted by the court.

7: According to the general rule of the law of contract, consideration is one of the elements that are essential for creating a valid contract. As a result, in the absence of consideration, a valid contract cannot be formed. But it also needs even mentioned that certain exceptions have been recognized to the application of the general rule. In case of these exceptions, and agreement can be enforced even if it has been created without consideration.

A promise made out of love and affection: read the agreement has been expressed in writing and registered under the relevant law and has been made. Even with the love and affection, between the parties were standing near relation to each other, some promise in the enforced even if it is not supported by consideration.

A promise made to compensate for voluntary services: a promise that has been made to compensate, fully or partly the person who was voluntarily provided a service to the other party or something that the promisor was legally bound to do, can be enforced without the presence of consideration. Therefore, according to this rule past consideration can be recognized in such cases even if it was provided without any request or desire of the other party.

A promise to pay a time-barred debt: a promise that has been made in writing and which provides for the payment of a debt that has been barred by the application of the law limitation, can be enforced even if it is not supported by consideration.

Gifts etc. actually made: the law provides that any game that has been actually made, needs to be considered as valid.

To create agency: the law provides that it is not necessary to provide consideration for the purpose of creating an agency. The reason is that in such cases it is acknowledged that consideration is present in the form of the promise made by the principal to be bound by the actions of the agent. Therefore, the principal undertakes the responsibility of the agent. In Currie v. Misa (1875), it was seen that suffering responsibility has to be treated as good consideration.

References

S.M. Waddams, 1999, The Law of Contracts, Canada Law Book:Toronto

Applebey, G. 2001, Contract Law. North Yorkshire: Sweet & Maxwell Limited.

Cheshire, Fifoot and Furmston, 1986, Law of Contract, 11th Ed. London: Butterworths.

Monahan, 2001, Essential Contract Law, 2nd Ed. Sydney: Cavendish Publishing (Australia) Pty Ltd.

Steven and Sons, 1977, Charlesworth’s Mercantile Law, 13th Ed. London

Stone, R. 2002, The Modern Law of Contract. 5th Ed. London: Cavendish Publishing Ltd.

Case Law

Currie v Misa (1875) LR 10 Ex 893

Fort Frances (Town) v. Boise Casade Canada Ltd., [1983] S.C.J. No. 13