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Contract Breaches and Remedies

Contract Breaches and Remedies. Session 7 Build a contract Breaches & Remedies. Build A Contract. Contents of Contract Parties Date Terms Signatures, Witnesses, Seals. Build A Contract. Harry Jones wants to hire Smith Concrete which is operated by John Smith to build a garage pad.

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Contract Breaches and Remedies

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  1. Contract Breaches and Remedies Session 7 Build a contract Breaches & Remedies

  2. Build A Contract • Contents of Contract • Parties • Date • Terms • Signatures, Witnesses, Seals

  3. Build A Contract • Harry Jones wants to hire Smith Concrete which is operated by John Smith to build a garage pad. • Smith quoted a price of $6,500 for the garage pad including all materials, labour and equipment. • Smith excluded cleanup • Smith wants payment 5 days after completion • Break into groups and draft a contract. • Make sure that you include all clauses that you think are needed (don’t worry about the detail – get the intent down)

  4. Origins of Disputes • Breach of Contract • Tort Issues – Breach of “Duty” • Statutory – Competition Act

  5. Nature of a breach • Major – going to basic value of contract to one party • Minor – insufficient to cause void of contract

  6. Results of Breach • Fundamental Breach - Contract voidable by offended party • Breach of Warranty - Damages

  7. Intent of damages • The idea of damages is to compensate with money for a non-monetary problem

  8. Other remedies • Specific Performance

  9. Where to go to get satisfaction • Courts • Alternative Dispute Resolution

  10. Alternative Mechanism • Litigation • Alternative Dispute Resolution

  11. Court Action – litigation • Provincial Court • Civil Claim • Dispute Note • Pre-trial Hearing / Compulsory Arbitration • Trial • Judgment • Enforcement through Court of Queen’s Bench

  12. Court Action - Litigation • Court of Queen’s Bench • Statement of Claim • Statement of Defence • Affidavit of Records • Examinations for Discovery • Trial • Judgment • Enforcement

  13. Alternative Mechanisms • Negotiation • Mediation • Arbitration

  14. Negotiation • Principled vs. Positional Negotiation • Getting to Yes • Don’t Bargain over positions • Separate the people from the problem • Focus on interests not positions • Invent options for mutual gain • Insist on using objective criteria

  15. Mediation • Impartial Mediator – skill of mediator often overlooked • No decision unless by parties • Counsel there only as an advisor – parties do most of the work

  16. Arbitration • Arbitration Agreement • Sets the rules • Establishes the questions to be asked • Defines all the details: transcripts, costs, appeals • Private Court • Parties pick the judge – the arbitrator • Arbitration Act – gives judgment the weight of a decision of the Court of Queen’s Bench • Quicker and cheaper than trial • Less formal than trial

  17. Best Way • Depends on nature of dispute • If question is primarily one of law – courtIf fact-based and special knowledge needed – arbitration • If parties are still talking – negotiation or mediation

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