| Subject: contract |
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k
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Date Posted: 08:28:10 05/22/03 Thu
REMEDIES FOR BREACH OF CONTRACT
Damages
- Awards of damages are made only to compensate the injured party - not intended for punishment
- The purpose of damages is to place the injured party in the same place as if the contract had been completed
Specific Types Of Damages
Mitigation Of Loss - to reduce the burden on the party breaking the contract, -make whatever money they can than sue for their losses
Liquidated Damages - a sum of money agreed on in advance, in case of a -breach of contract, used to avoid court disputes
Specific Performance - One of a kind items (paintings, gems, antiques) that have agreed to be sold (by contract) can be court ordered to be sold for the amount agreed on beforehand
Injunctions - Court orders a person or business to complete the contract that were broken
Rescission - The injured plaintiff can seek to have the contract made void
Limitation Of Actions
- The "Statue of Limitations" states that a plaintiff must bring the contract dispute to court within a reasonable amount of time - the exact time varies from province to province but it is all pretty close to the same
18.6 The Sale Of Goods
Title, Delivery, and Payment
- The time when ownership transfers to the buyer is important because the owner must accept the burden of loss if the goods are lost, stolen, damaged, or destroyed
Express Conditions and Warranties
- an Express Condition is essential to the contract, it is a specific thing that has to be completed in order for the contract to still be good (eg a OAK chest) the oak would be the express condition
- an Express Warranty is a specific promise made by the manufacturer or retailer concerning performance, quality, and condition in an item - usually known as a guarantee
o there are two types of warrantees, limited and life
Implied Conditions and Warranties
- Promises in law that are made by implication by a seller are called implied conditions and implied warranties. These obligations have been arranged in the different provincial Sales of Goods Acts and include the following promises
o That the seller has title to the goods and the right to sell them
o That the articles or goods are of merchantable quality and suitable for the required purpose
o That the goods supplied correspond to the samples or descriptions provided
- In every sale of goods these implied conditions and warranties are present
Title
- The seller of goods has title to them and thus, has the right to sell them. If the goods belong to someone else and were stolen, the original owner can demand their return, even from a buyer who purchased them in good faith. After the contract of sale is completed the buyer can use the goods in any way.
Quality and Suitability
- If the buyer either directly or by implication makes known to the seller the purpose for which the goods are to be used and depending on how much the seller knows about the product it is an implied condition that the goods will be fit and suitable for the buyer's purpose. A buyer may be able to obtain a refund if a product is not of merchantable quality. Goods of merchantable quality are fit to be used for their normal purpose and so are usually marketable. Not all goods of merchantable quality are marketable, electrical goods sold in Canada must have the approval of the Canadian Standards Association and must display the CSA seal. If there CSA seal is not on an electronic product, the product is not marketable.
Sale by Sample or Description
- If goods have been bought by description or sample, or both, there is an implied condition that the goods must correspond to the description or sample. The seller must clearly tell the buyer that the goods are only samples. Sample goods must be of merchantable quality, having no defects that would be noticeable on reasonable examination. In any sale by sample or description, the buyer, if he or she desires, must be allowed to compare the purchased goods with the sample seen earlier. If a buyer makes a purchase without asking for the seller's advice or buys a particular product for its brand name, the seller cannot be held responsible if the goods do not satisfy the buyer's expectations.
Disclaimer Clauses
- Many sellers add disclaimer causes to reduce the possibility of being sued for breach of implied warranties and conditions. These statements seek to remove the protection of the implied warranties and conditions from the buyer. If the buyer is not aware of the disclaimer than it is no valid.
Remedies of the Buyer and Seller
Buyer's Remedies
- If the seller does not deliver the goods, or if the goods delivered do not match the sample or description in the store or the advertisements, the buyer does not need to pay for the goods.
Seller's Remedies
- A seller who has not relieved payment for goods delivered to the buyer also has certain remedies under the Sale of Goods Act.
o Non-Delivery - where the goods have been sold but still remain in the seller's possession, the seller has the legal right to keep the goods until payment is received. But if the goods have been delivered the seller does not have possession anymore
o Stoppage in Transit - If the goods are in transit, and the seller learns that the buyer is bankrupt, the seller can order the carrier not to make delivery. The seller can sell the goods to someone else or take them back, if the carrier delivers the goods to the buyer against the will of the seller, the carrier is held liable
o Resale - Often when the goods are stopped in transit, they are resold. The seller must notify the buyer of the intended resale to give the buyer one last opportunity to make the required payment to obtain the goods.
o Damages - The seller can sue for damages. If the buyer has the goods, the seller can sue for the full price. If the goods are still in the seller's possession, the damages sued for might represent the expenses involved in finding a new buyer and any price difference in the resale of the goods
18.7 Consumer Protection
- The provincial Sale of Goods Act relates only to transactions between buyers and sellers. It does not extend to manufacturers of goods, and it doesn't help anyone who is not a buyer or consumer. Because of people that control deceptive or unfair business practices, the federal and provincial governments have put in some new laws.
o Laws intended to protect from hazardous or dangerous products
o Laws designed to ensure that accurate information is provided to consumers
o Laws intended to regulate activities around the sale of goods
Federal Laws
- The federal laws treat improper and dishonest business conduct and misleading advertising as offences against society and so province a basis for taking criminal action against offenders through he Competition Act
Provincial Laws
- The various provincial laws deal with consumers on a more personal level. They provide a basis for seeking compensation in civil actions against offenders.
Consumer Protection Act
- This act was made to protect the buyer mainly from door to door sellers, door to door sellers often use pressure tactics for people to buy their goods. This contract gives the buyer a cooling off period where they can break the contract with no reason whatsoever. The buyer must return the product and the seller must return the money.
Credit Disclosure
- To ensure consumers are fully aware of the cost of buying goods on credit, provincial legislation requires full disclosure of all credit costs. This provides buyers with a detailed statement of the cost of credit in dollars and cents and a true annual rate of interest expressed as a percentage. It allows consumers to compare credit terms and to shop around for the best interest rates available. Consumers are not bound to contracts that do not provide full disclosure. The provincial legislation of each province gives courts the ability to look into contracts and judge whether and interest level was excessive. This applies to all loans, even those that have been paid in full.
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