Contract Breaches and Contract Breaches and RemediesRemedies

Session 7Session 7Build a contractBuild a contract

Breaches & RemediesBreaches & Remedies

Build A ContractBuild A Contract

Contents of ContractContents of Contract– PartiesParties– DateDate– TermsTerms– Signatures, Witnesses, SealsSignatures, Witnesses, Seals

Build A ContractBuild A Contract

Harry Jones wants to hire Smith Concrete which is Harry Jones wants to hire Smith Concrete which is operated by John Smith to build a garage pad.operated by John Smith to build a garage pad.

Smith quoted a price of $6,500 for the garage pad Smith quoted a price of $6,500 for the garage pad including all materials, labour and equipment.including all materials, labour and equipment.

Smith excluded cleanupSmith excluded cleanup Smith wants payment 5 days after completionSmith wants payment 5 days after completion Break into groups and draft a contract.Break into groups and draft a contract. Make sure that you include all clauses that you Make sure that you include all clauses that you

think are needed (don’t worry about the detail – think are needed (don’t worry about the detail – get the intent down)get the intent down)

Origins of DisputesOrigins of Disputes

Breach of ContractBreach of Contract Tort Issues – Breach of “Duty”Tort Issues – Breach of “Duty” Statutory – Competition ActStatutory – Competition Act

Nature of a breachNature of a breach

Major – going to basic value of contract to Major – going to basic value of contract to one partyone party

Minor – insufficient to cause void of contractMinor – insufficient to cause void of contract

Results of BreachResults of Breach

Fundamental Breach - Contract voidable by Fundamental Breach - Contract voidable by offended partyoffended party

Breach of Warranty - DamagesBreach of Warranty - Damages

Intent of damagesIntent of damages

The idea of damages is to compensate with The idea of damages is to compensate with money for a non-monetary problemmoney for a non-monetary problem

Other remediesOther remedies

Specific PerformanceSpecific Performance

Where to go to get satisfactionWhere to go to get satisfaction

CourtsCourts Alternative Dispute ResolutionAlternative Dispute Resolution

Alternative MechanismAlternative Mechanism

LitigationLitigation Alternative Dispute ResolutionAlternative Dispute Resolution

Court Action – litigationCourt Action – litigation

– Provincial CourtProvincial Court Civil ClaimCivil Claim Dispute NoteDispute Note Pre-trial Hearing / Compulsory ArbitrationPre-trial Hearing / Compulsory Arbitration TrialTrial JudgmentJudgment Enforcement through Court of Queen’s BenchEnforcement through Court of Queen’s Bench

Court Action - LitigationCourt Action - Litigation

– Court of Queen’s BenchCourt of Queen’s Bench Statement of ClaimStatement of Claim Statement of DefenceStatement of Defence Affidavit of RecordsAffidavit of Records Examinations for DiscoveryExaminations for Discovery TrialTrial JudgmentJudgment EnforcementEnforcement

Alternative MechanismsAlternative Mechanisms

NegotiationNegotiation MediationMediation ArbitrationArbitration

NegotiationNegotiation

Principled vs. Positional NegotiationPrincipled vs. Positional Negotiation Getting to YesGetting to Yes

– Don’t Bargain over positionsDon’t Bargain over positions– Separate the people from the problemSeparate the people from the problem– Focus on interests not positionsFocus on interests not positions– Invent options for mutual gainInvent options for mutual gain– Insist on using objective criteriaInsist on using objective criteria

MediationMediation

Impartial Mediator – skill of mediator often Impartial Mediator – skill of mediator often overlookedoverlooked

No decision unless by partiesNo decision unless by parties Counsel there only as an advisor – parties do most of Counsel there only as an advisor – parties do most of

the workthe work

ArbitrationArbitration

Arbitration AgreementArbitration Agreement– Sets the rulesSets the rules– Establishes the questions to be askedEstablishes the questions to be asked– Defines all the details: transcripts, costs, appealsDefines all the details: transcripts, costs, appeals

Private CourtPrivate Court Parties pick the judge – the arbitratorParties pick the judge – the arbitrator Arbitration Act – gives judgment the weight of a Arbitration Act – gives judgment the weight of a

decision of the Court of Queen’s Benchdecision of the Court of Queen’s Bench Quicker and cheaper than trialQuicker and cheaper than trial Less formal than trialLess formal than trial

Best WayBest Way

Depends on nature of disputeDepends on nature of dispute If question is primarily one of law – courtIf question is primarily one of law – court

If fact-based and special knowledge needed – If fact-based and special knowledge needed – arbitrationarbitration

If parties are still talking – negotiation or mediationIf parties are still talking – negotiation or mediation