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Session 1
Introduction to Course and Contracts
Objectives
Acquire principles of Common law
Learn to use the Common law
Course Outline
Session 1: Introduction to Course and to Contracts
Session 2: Contract Law – Formation
Session 3: Contract Law – Performance
Session 4: Contract Law – Information Imperfections
Session 5: Contract Law – Breach & Remedy
Course Outline (cond’t)
Session 6: Tort Law – History and Introduction to Negligence
Session 7: Tort Law – The Elements of a Case in Negligence
Session 8: Tort Law – Pure Economic Loss
Session 9: Exam
Evaluation
20% Participation in various in-class discussions and exercices
30% Written case summary
50% Final exam (November 7, 2012)
I will not give a supplementary exam to those who cannot take the final exam except in cases of severe illness or other serious personal reasons (cheap plane fare does not qualify)
Sources of Law
Unwritten (Common law – judge-made law)
Written (Statutes and Treaties)
Judge-Made Law
Principles
Stare decisis (once a court makes a decision, a lower court or a court at the same level cannot reverse the decision)
Argument by analogy (examine facts and draw analogy to an existing decision)
Res judicata (a same case cannot be re-heard on the same facts)
Judge-Made Law (cond’t)
Levels of court
Trial court (parties are plaintiff and defendant)
Appellant court (does not revisit facts but corrects a legal error)
Parties are appellant and respondent
Supreme court (must have leave to appeal)
Parties are appellant and respondent
Also Specialised courts (tax, family law) and tribunals
Written Law
Constitution (Canada, US)
Statute (laws passed by parliament)
Replace common law
Treaties (UCC, Restatements)
What is a Contract
A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty
Session 2
Contract Law:
Formation
What is a Contract
A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognises as a duty
Requirements of a Contract
The formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration
Mutual Assent
Assent: The Essence of Contract
At common law, parties are liable for failure to comply with their contracts because they have explicitly or impliedly assented to be liable
Differs from tort, where liability is imposed on a non-consensual basis
Obtaining Assent
Objective Theory of Assent
The law imputes to a person an intention corresponding to the reasonable meaning of his workds and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his workds or acts, judged by a reasonable standard, manifest an intention ot agree in regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on the subject.
Jest
The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party… The law, therefore, judges of an agreement between two persons exclusively from those expressions of their intentions which are communicated between them.
What is an Offer?
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it
Offer of Invitation?
A manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent
Need for Certainty in Offer
Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain
Things to Consider in Determining Whether a Communication is an Offer
The words used
Surrounding circumstances
To whom the words are conveyed
Definiteness of terms
Wherther a written contract is intended
Termination of Offer
An offer is terminated by
Acceptance
Revocation
Rejection
Counter-offer
Lapse of time
Death or incapacity of the offeror or offeree
What is an Acceptance?
An acceptance is the assent on the part of the offeree. Upon acceptance, there is an assent, and the conclusion of a bargain.
Effect of Acceptance
An acceptance which properly follows an offer results in the creation of a bargain
Offeror is “Master of the Offer”
The Offeror may determine the time, manner and mode of acceptance. If he does so, an acceptance must be made in accordance with the requirements of the offer. If not, there is no acceptance.
Acceptance may be by Performance or Promise
An offer may invite or require acceptance to be made by an affirmative answer in words, or by performing or refraining from performing a sepcified act, or may empower the offeree to make a selection of terms in his acceptance
Unless otherwise indicated by the language or the circumstance, an offer invites acceptance in any manner and by any medium reasonable in the circumstance
Manifestation Required
Where an offer is made by one party to another when they are not together, the acceptance of it by that other must be manifested by some appropriate act. It does not need that the acceptance shall come to the knowledge of the one making the offer before he shall be bound.
Reasonableness of Means of Acceptance
Unless circumstances known to the offeree indicate otherwise, a medium of acceptance is reasonable if it is the one used by the offeror or one customary in similar transactions at the time and place the offer is received
The “Mailbox Rule”
An acceptance made in a manner and by a medium invited by an offer is operative and completes the manifestation of mutual assent as soon as put out of the offeree’s possession, without regard to whether it ever reaches the offeror
Acceptance by Silence
Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only
Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer
Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept
Revocation
Directly
An offeree’s power of acceptance is terminated when the offeree receives from the offeror a manifestation of an intention not to enter into the proposed contract
Revocation (cond’t)
Indirectly
An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect
See Dickinson v. Dodds
Counter-Offer
An offeree’s power of acceptance is terminated by his making of a counter-offer, unless the offeror has manifested a contrary intention or unless the counter-offer manifests a contrary intention of the offeree
Lapse of Time
An offeree’s power of acceptance is terminated at the time specified in the offer, or, if no time is pecified, at the end of a reasonable time. What is a reasonable time is a question of fact.
Importance of “meeting of the minds”
Dickinson v. Dodds
It must, to constitute a contract, appear that the two minds were at one, at the same moment of time, that is, that there was an offer continuing up to the time of the acceptance
Consideration
Question of Enforceability
Assuming there is an agreement, there must be some means to determine which agreements are meant to be enforced and which are not
Not all agreeemnts are meant to be enforceable
The Problem of Gift
Promises to make a gift are unenforceable#p#分页标题#e#
Girfts are only enforceable where there is
Donative intent
Delivery
Acceptance
The Doctrine of Consideration
The doctrine of consideration is the primary doctrine for determining what contracts should be enforced
Consideration requires that there be an exchange of promises in order for a promise to be enforceable
Requirement of Exchange
To constitue consideration, a performance or a return promise must be bargained for
A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise
The performance may consist of
an act other than a promise, or
a forbearance, or
the creation, modification, or destruction of a legal relation
Benefit or Burden
Consideration can be either an act or forebearance. That is to say, the promisee must suffer a legal detriment, i.e., gives up something of value or circumscribe his liberty in some way.
Courts’ “will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to anyone. It is enough that something is promised, done, forbone or suffered by the party to whom the promise is made as consideration for the promise made to him”…
Consideration has two chief functions
Evidentiary
Evidence of consideration provides objective evidence that the parties intended to be legally bound by the agreement they made
Cautionary
Requirement of consideration also affords parties the opportunity to consider the full implications of their actions before binding themselves because statements and promises made without the support of consideration are not binding
Inducement
In order for there to be consideration, the promises must be bargained for. That is to say, each parties’ promise must be the inducement for the other’s.
Past Consideration
Past Consideration is not Consideration because there is no inducement
“It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the promise validity”…
Moral Consideration
Moral Obligation does not support a contract
“A deliberate promise, in writing, made freely and without any mistake, one which may lead the party to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty. But if there was nothing paid or promised for it, the law, perhaps wisely, leaves the execution of it to the conscience of him who makes it. It is only when the party making the promise gains something, or he to whom it is made loses something, that the law gives the promise validity.”
Moral Consideration: Exception
“Where the promisor, having received a material benefit from the promisee, is morally bound to compensate him for the services rendered and in consideration of this obligation promises to pay. In such cases the subsequent promise to pay is an affirmance or ratification of the services rendered carrying with it the presumption that a previous request for the service was made.”
Adequacy of Consideration
The law does not enquire into the adequacy of consideration. It is only important that the party get “a something”.” The value of the exchange is not policed by the courts. Thus a party may sell Blackacre for a peppercorn, a kitten or a robe.
If the requirement of consideration is met, there is no additional requirement of (a) a gain, advantage, or benefit to the promisor or a loss, disadvantage, or detriment to the promisee; or (b) equivalence in the values exchanges.
Modification of Contracts
Modification of contracts generally requires additional consideration
Exception
Contracts for the Sale of Goods
The Pre-existing Duty Rule
“[“W]hen a party merely does what he has already obligated himself to do, he cannot demand an additional compensation therefor; and although, by taking advantage of the necessities of his adversary, he obtains a promise for more, the law will regard it as numdum pactum [a voluntary promise], and will not lend its process to aid in the wrong.”
Session 3
Contract Law:
Performance
Duty of Good Faith
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement
What is “Good Faith”?
Honesty in fact in the conduct or transaction concerned
In the case of a merchant it means honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade
Warranty
Promise that goes to the quality, condition, effectiveness, etc., of the servcies or goods provided
Two Main Types of Warranty
Express Warranties are warranties that arise expressly. An express promise by one party that goods or services will have certain qualities or be in a certain condition.
Implied Warranties are warranties created by operation of law. The law implies warranties under certain conditions.
At Common Law
Common law does not imply warranties, except for warranty of title: i.e., that the seller has the right to transfer
Common law leaves parties to bargain for warranties
Contracts for Goods
The Uniform Commercial Code has specific warranty provisions for contracts for the sale of goods
Other contracts, i.e., services, construction, land, etc., are not subject to the UCC or its warranties. Warranties in these cases generally arise only expressly
Express Warranties in Goods UCC para 2-313
Express warranties by the seller to the immediate buyer are created as follows
Any affirmation of fact or promise made by the seller which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise
Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description
Express Warranties in Goods UCC para 2-313 (cond’t)
Any sample or model that is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model
It is not necessary to the creation of an express warranty that the seller use formal words such as “warrant” or “guarantee” or that the seller have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty
Implied Warranties in Goods
Arise by operation of law. The law implies warranties due to the nature of the parties or the transaction
Of Two Kinds
Warranty of Merchantability
Warranty of Fitness for a Particular Purpose
Warranty of Merchantability UCC para 2-314
Unless excluded or modified (Section 2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind
Goods to be merchantable must be at least such as
pass without objection in the trade under the contract description
Warranty of Merchantability UCC para 2-314 (cond’t)
in the case of fungible goods, are of fair average quality within the description
are fit for the ordinary purposes for which goods of that description are used
run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved
are adequately contained, packaged, and labeled as the agreement may require
conform to the promise or affirmations of fact made on the containeer or label if any
Merchantability
Arises where seller is “a merchant with respect to goods of the kind”
In such a case, goods must
Pass without objection in the trade
Be fit for their ordinary purpose
Warranty of Fitness for a Particular Purpose UCC para 2-315
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose
Fitness for a Particular Purpose
Must be a particular purpose, not the ordinary purpose
Arises where
Seller knows of buyer’s particular purpose
Seller knows buyer is relying on seller’s skill
Buyer does in fact rely
Disclaimer of Express Warranties UCC par 2-316(1)
Words or conduct relevant to the creation of an express warranty and words or conduct tending to negate or limit warranty shall be construed wherever reasonable as consistent with each other; but subject to Section 2-202, negation or limitation is inoperative to the extent that such construction is unreasonable#p#分页标题#e#
Disclaimer of Implied Warranty of Merchantability UCC para 2-316(2)
To exclude or modify the implied warranty of merchantability or any part of it in a consumer contract the language must be in a record, be conspicuous, and state “The seller undertakes no responsibility for the quality of the goods except as otherwise provided in this contract", and in any other contract the language must mention merchantability and in case of a record must be conspicuous
Requirements of Discalimer: Merchantability
To disclaim a merchantability warranty there must be
A “record” (usually a writing)
It must be conspicuous
Use the formula given in para 2-316 or mention the word “merchantability”
Disclaimer of Implied Warranty of Fitness for a Particular Purpose UCC para 2-316(2)
To exclude or modify the implied warranty of fitness, the exclusion must be in a record and be conspicuous. Language to exclude all implied warranties of fitness in a consumer contract must state “ The seller asumes no responsibility that the goods will be fit for any particular purpose for which you may be buying these goods, except as otherwise provided in the contract", and in any other contract the language is sufficient if it states, for example, that “There are no warranties that extend beyond the description on the face hereof.”
Requirement of Disclaimer: Fitness for a Particular Purpose
To disclaim a warranty for a particular purpose there must be
A “record”
Conspicuous
Use the required form
Session 4
Contract Law:
Information Imperfections
Features that Render a Contract Invalid
Lack of Capacity
Duress, undue influence, unconscionability
Illegality
Form
Information Imperfection
Philosophical Justifications
Certain information pre-conditions must be met for a given exchange to justify enforcement
Economic justification for contracts: both parties should be better off
Autonomy of parties to enter into a contract but on can only be autonomous if fully informed
When should court intervene to prevent all the risk from being born by one party or to delare a contract unenforceable
Mistake
Asymmetric information imperfection
Fraudulent misrepresentation
Negligent misrepresentation
Innocent misrerpresentation
Material non-disclosure
Mistake by one party as to the meaning of the contractual termes
Mistake (cond’t)
Symmetric information imperfection
Mutual mistakes as to pre-existing facts
Mutual mistakes as to future course of events (frustration)
Frustration
False assumption about future events
Questions
What situation justifies a party’s release from their obligation
Who should shoulder the risk
At what level (i.e.: war in oil producing country vs. increase in oil price)
Session 5
Contract Law:
Breach & Remedy
Breach
Problems of Breach
What constitutes a breach of contract?
When does a breach occur?
What rights arise upon a breach?
Effect of Breach
When can I declare the contract at an end?
Not every breach gives rise to the right to cancel the contract
Courts are concerned with the nature of the breach in jeopardizing the promisee’s confidence in receiving additional performance in the future
Material Breach
Where there is a breach a party is entitled to damages
Where the breach is “material", the contract may be at an end
For example, a late delivery of one hour is a breach, but may not be enough for the buyer to cancel
What Constitutes Material Breach?
In determining whether a failure to render or to offer performance is material, the following circumstances are significant
the extent to which the injured party will be deprived of the benefit which he reasonably expected
the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived
the extent to which the party failing to perform or to offer to perform will suffer forfeiture
What Constitutes Material Breach? (cond’t)
the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances
the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing
Perfect Tender
Applies to GOODS contracts
para 2-601. Buyer’s Rights on Improper Delivery
Subject to the provisions of this Article on breach in installment contracts (Section 2-612) and unless otherwise agreed under the sections on contractual limitations of remedy (Sections 2-718 and 2-719), if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
reject the whole; or
accept the whole; or
accept any commercial unit or units and reject the rest
Right to Cure
para 2-508. Cure by Seller of Improper Tender or Delivery; Replacement
Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may reasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery
Right to Cure (cond’t)
Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he reasonably notifies the buyer have a further reasonable time to substitute a conforming tender
Substantial Performance
Sometimes a party will perform the contract but not exactly
In such a case, the question is often whether the non-breaching party has a righ to cancel
Most times, the answer is no
The question in such cases is whether the performance was “substantial”
DOES NOT APPLY TO GOODS CONTRACTS
Substantial Performance
Damages in Cases of Substantial Performance
Cost of Repair or Diminution in Value
Restatement para 348
If breach results in the defective or unfinished construction and the loss in value of the injured party is not proved with sufficient certainty, he may recover damages based on
diminution of the market price of the property (value rule), or
reasonable cost of completing performance or of remedying the defects if that cost is not disporportionate to the probable loss in value to him (cost of performance rule)
Anticipatory Repudiation
Normally breach occurs at the time of performance of the contract
If a party notifies the other in advance of their intention not to perform, is there a breach?
“The man who wrongfully renounces a contract into which he has deliberately entered cannot justly complain if he is immediately sued for a compensation in damages by the man whom he had injured; and it seems reasonable to allow an option to the injured party, either to sue immediatley, or to wait till the time when the act was to be done”
Anticipatory Repudiation
para 2-610. Anticipatory Repudiation.
When either party repudiates the contract with respect to a performance not yet due the loss of which will substantially impair the value of the contract to the other, the aggrieved party may
for a commercially reasonable time await performance by the repudiating party; or
resort to any remedy for breach (Section 2-703 or Section 2-711), even though he has notified the repudiating party that he would await the latter’s performance and has urged retraction; and
Anticipatory Repudiation (cond’t)
in either case suspend his own performance or proceed in accordance with the provisions of this Article on the seller’s right to identify goods to the contract notwithstanding breach or to salvage unfinished goods (Section 2-704)
What Constitutes Anticipatory Repudiation?
“In order to constitute an anticipatory breach of contract, there must be a definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives. Doubtful and indefinite statements that the performance may or may not take place and statements that, under certain circumstances that in fact do not yet exist, the performance will not take place, will not be held to create an immediate right of action. A mere request for a change in the terms or a request for cancellation of the contract is not in itself enough to constitute a repudiation.”
Adequate Assurance
para 2-609. Right to Adequate Assurance of Performance.
A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return#p#分页标题#e#
Adequate Assurance (cond’t)
Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards
Acceptance of any improper delivery or payment does not prejudice the aggrieved party’s righ to demand adequate assurance of future performance
After receipt of a justified demand failure to provide within a resonable time not exceeding thirty (30) days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract
Right to Demand Assurance
Must have “reasonable grounds for insecurity”
Demand must be in writing
Must provide assurance within 30 days
What is “adequate” assurance is also question of fact
What constitute “reasonable grounds” and “adequate assurance” is determined by “commercial standards”
Remedy
Damages
Remoteness
Intangible Injuries
Mitigation
Session 6
Tort Law:
History and Introduction to Negligence
History
From the French “tort”: a wrongful acts. The wrongdoer is the “tortfeasor”
By the 14th century victims started private proceedings through a “writ” stating how much the wrong had cost them and asking the court to order the wrongdoer to pay
Wrongs were mostly intentional wrongs called trespasses
Wrongs that didn’t fit into this were trespasses on the case
Definition
Civil wrong done by one person to another person’s body, property or reputation (private wrong)
A breach of a duty that the law imposes on persons who stand in particular relation to one another
Liability not based on consent as in contract
Purpose is to compensate injured party for unreasonable harm
Types of Tort
Intentional Torts: battery, assault, false imprisonment, treaspass, etc.
Defamation [NTD: or Difammation?]
Nuissance
Negligence: acts which are careless or which fall short of the duty of care owed to other persons
Strict Liability: conduct which is neither intentional nor careless but which gives rise to liability because of the nature of the conduct, i.e., abnormally dangerous activites or manufacture of a defective product
Social Function of Tort
Compensate victim by placing them in the position they would have been had the wrong not been committed
Individual deterrent (costs and damages)
May punish the wrongdoer through punitive damages
General deterrent (imposes a standard of behaviour on companies)
Can correct infringement on civil rights by a public body
[i.e., class action against Immigration Canada]
Tort Action
Statement of claim by Plaintiff served on Defendant
Defendant prepares a statement of defence in which he can make counterclaims
Discovery
Evidenciary standard is balance of probabilities
Judge orders the wrongdoer to pay voluntarily
Plaintiff may seek enforcement of judgement
Negligence
History
19th century negligence appears in trespass on case
In 19th century defendant could win by arguing
no direct legal connection to victim
victim assumed risk
victim contributed to damage
Negligence (cond’t)
Defined
Occurs when defendant’s conduct imposes an unreasonable risk upon another
Mental state is irrelevant
Essence of the tort is that the defendant’s conduct falls short of the duty of care required
McAlister (Donoghue) v. Stevenson [1932] AC 562 (HL)
Session 7
Tort Law:
The Elements of a Case in Negligence
Elements of the Prima Facie Case
Duty
Defendant has a legal duty to act in a particular way
Failure to conform
Defendant failed to act in accordance with the duty
Proximate Cause
Defendant’s failure was both the actual and proximate cause of the injury
Damage: Plaintiff has suffered actual damage
Duty
The essence of negligence is that the defendant breached a duty owed to someone else
In most cases, this duty is defined as “reasonable care under the circumstances” or the “reasonable man” standard
The question is: “What would a reasonable person do under the same or similar circumstance? Did the defendant do this?
Proof of the Standard
Physical and Mental Characteristics of the defendant can be considered. Do childrend have the same duties as adults?
Custom may provide insight, but is not conclusive
Emergency: Were there emergency circumstances?
Anticipating conduct of others: Should the defendant have anticipated the conduct of someone else?
Malpractice
Applies to certain professionals, such as doctors, engineers, lawyers, accountants, etc.
Such actors are held to the standard of what a “reasonable doctor, or engineer, or lawyer, etc.” would do under similar circumstances
Specialists: held to minimum standard of specialist
Community standard: held to standard of community in which they live or work
Defendant’s Conduct Posed an Unreasonable Risk of Harm
Generally, defendant’s conduct must have posed an “unreasonable risk of harm” to plaintiff
Not judged by the result
Need to view it as of the time
Balancing test: “Where an act is one which a reasonable person would recognise as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.”
Causation: Actual Cause
Actual Cause
Plaintiff must show that defendant’s conduct was the “cause in fact” of the injury
“But for” test
Had defendant not acted negligently, plaintiff’s injuries would not have occurred
Intervening act may interrupt a chain of events and become the actual cause
Causation: Proximate Cause
Even if plaintiff can show actual cause, he must still show that defendant was the proximate cause
Proximate cause is policy determination that defendant should not be liable for absolutely every consequence of his act
Seeks to cut off liability at some reasonable point
Proximate Cause: Foreseeability
Most courts hold that defendant is only liable for those consequences that were “reasonably foreseeable” at the time of the accident
Caution
Need not see the actual plaintiff, just that some plaintiff might exist
Damage
Plaintiff must show damage
Damage may be physical, i.e., to person or property, or mental or emotional
Defence
Limitation period – Discovery rule
Voluntary assumption of risk
Illegality
Contributory negligence
Joint and Several Liability
Overview and Definition
Joint tortfeasors are two or more individuals who (1) act in concert to commit a tort or (2) share responsibility for a tort because of vicarious liability
Each tortfeasor is jointly and severally liable for the plaintiff’s total damages
Joint Tortfeasors
Joint tortfeasors act
in concert to commit a tort
independently to cause a single tort
liable vicariously for the torts of others
Acting in Concert
A person acts in concert to commit a tort with another when he aids or encourages another in committing the tort
Independanet Acts Causing a Single Injury
Two or more individuals who act independently but whose acts cause a single tort are joint tortfeasors
Vicarious Liability
A defendant may be liable for the torts of others
Examples
Respondent superior
liability for the torts of employees
Principal’s liability
liability for acts of agent
Parent’s liability
Corporate liability
Joint and Several Liability
“Several” indicates that more than one tortfeasor is involved
“Joint” indicates that each of the several tortfeasors are fully liable for the entire damage
Allocation of Liability
Traditional Rule
Each tortfeasor shares pro rata (i.e., Three tortfeasors, each pays 1/3; four tortfeasors, each pays 1/4)
Modern Rule
Allcoation based on comparative fault
Contribution and Indemnity
A tortfeasor who pays more than his share of damages can obtain contribution from other tortfeasors
A tortfeasor who is only technically liable may be able to seek full indemnification from the party primarily responsible#p#分页标题#e#
Example : seller of defective product can obtain indemnification from manufacturer
Session 8
Tort Law:
Pure Economic Loss
Negligent Infliction of Pure Economic Loss
Negligent misrepresentation
Negligent performance of service
Defective product or building
Relational Economic Loss
Independent Liability of statutory authorities
Three Common Elements
Possibility of indeterminate liability
(forseable damage to foreseable plaintiff is too limited)
Difference between social loss and transfer of wealth
Relevance of existing and potential contractual allocation of loss
Some Challenges Posed by Pure Economic Loss
Frequently based on words not acts
Willingness to uphold freedom of speech
Proximate cause test
Anns Test
Is there a sufficiently close relationship between the parties so that in the reasonable contemplation of the defendant, carelessness on its part might cause damage to that person if yes
Are there considerations that should negate or limit: a) the scope fo the duty; b) class of persons to whom it is owed; c) damages to which the breach may give rise
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