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Articles 1 - 29 of 29
Full-Text Articles in Law
An Old Bottle For The New Wine: Understanding The Duty Of Honest Performance Under The Objective Theory, Humphrey Yuan Jheng
An Old Bottle For The New Wine: Understanding The Duty Of Honest Performance Under The Objective Theory, Humphrey Yuan Jheng
Dalhousie Law Journal
Bhasin v Hrynew has many dimensions and potentially affects almost every aspect of Anglo-Canadian contract law. This article is limited to one aspect only: the duty of honest performance (“DHP”). My article attempts to show that the objective theory can provide a solid foundation and a different thinking framework for understanding and developing the DHP. If I am right, the DHP may be placed on a sound footing, independently of the organizing principle of good faith. Section I of this article traces the duty’s development from Bhasin to Callow. Section II argues that under the objective theory, reasonable expectations of …
Etuaptmumk: A Means To Advance Indigenous Economic Development “In A Good Way”, Frankie Young
Etuaptmumk: A Means To Advance Indigenous Economic Development “In A Good Way”, Frankie Young
Dalhousie Law Journal
A reckoning is required on how Eurocentric laws and economic systems are biased toward Western worldviews while not accounting for Indigenous realities, legal orders, or economic perspectives. Most notably, Eurocentric laws have been instrumental in advancing non-Indigenous economic interests to the detriment of Indigenous interests, largely because Indigenous laws have not been respected. The strengthening of certain Eurocentric property and contract laws have limited Indigenous peoples’ legal and economic interests and continues to constrain positive economic outcomes and advancement for Indigenous nations. This article argues that re-centering Indigenous legal traditions is a means to advance Indigenous economic interests. The principle …
The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore Dr.
The Flaws Of Magic Bullet Theory: Retraining Unconscionability To Discretely Target Different Contexts Of Unfairness In Contracts, Marcus Moore Dr.
Dalhousie Law Journal
Unconscionability has long been a troublesome area in Canadian jurisprudence. This is of significant concern given unconscionability’s pre-eminence as a protection of contractual fairness. This article elaborates a much-needed reorganization and rationalization of unconscionability in Canada. Under current law, a single doctrine hopelessly targets two divergent purposes. I set out here a proposed redevelopment rather of separate common law doctrines, each fit-for-purpose: (1) An English-style unconscionable bargains doctrine for avoiding bargains that exploited disability, and (2) an American-style unconscionable clauses doctrine to control unfair terms in standard form contracts. Extensive Canadian precedent supports this solution, assuring its feasibility and legitimacy. …
You’Ve Got To Have (Good) Faith: Good Faith’S Trajectory In Anglo-Canadian Contract Law Post-Wastech And The Potential For A Duty To Renegotiate, Vanessa Di Feo
You’Ve Got To Have (Good) Faith: Good Faith’S Trajectory In Anglo-Canadian Contract Law Post-Wastech And The Potential For A Duty To Renegotiate, Vanessa Di Feo
Dalhousie Law Journal
This paper argues that the organizing principle of good faith should be judicially developed to include a duty to renegotiate in situations of hardship. It looks to the French Civil Code and the UNIDROIT Principles for guidance, in addition to Canadian law’s receptibility to an incrementally expanded principle of good faith. Although the Supreme Court of Canada rejected hardship in the 2018 case of Churchill Falls (Labrador) Corp v Hydro-Québec, it did not forever close the door to this doctrine in Québec in situations of true financial peril. Given the “judicial dialogue” between Québec civil law obligations and Anglo-Canadian …
Contracting Out Liability For Negligent Pre-Contractual Misrepresentation, Daniele Bertolini
Contracting Out Liability For Negligent Pre-Contractual Misrepresentation, Daniele Bertolini
Dalhousie Law Journal
This article examines the extent to which entire agreement clauses (EACs) and non-reliance clauses (NRCs) are enforceable to preclude actions for negligent pre-contractual misrepresentations. It is argued that courts could improve legal certainty and contractual fairness by adopting two distinct legal rules to be applied, respectively, to contracts between sophisticated parties and in adhesion contracts. First, it is suggested that in contracts between sophisticated parties only specific contractual barriers to actions should provide a complete defence against negligent misrepresentation claims. Under this rule, the exclusionary effect of EACs and NRCs would be achieved only if an express term of the …
Death To Semelhago!, Bruce Ziff
Death To Semelhago!, Bruce Ziff
Dalhousie Law Journal
In the 1996 decision of the Supreme Court of Canada in Semelhago v. Paramadevan, Justice John Sopinka stated that it is no longer appropriate to assume that specific performance will issue as a matter of course to enforce a contract for the sale of land. Before performance will be ordered, it must be proven (and not assumed) that common law damages for breach of contract will not suffice to do justice. In this article, Semel hago and the case law generated in its aftermath will be reviewed, and the policy arguments pertaining to the current law addressed. In short, it …
Assessing Exclusion Clauses: The Supreme Court Of Canada's Three Issue Framework In Tercon Contractors Ltd V British Columbia (Transportation And Highways), Shannon O'Byrne
Dalhousie Law Journal
The Supreme Court of Canada's 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should-of course-generally be bound by its terms, the majority and dissent followed significantly different paths for …
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
The Origins Of A Coming Crisis: Renewal Of The Churchill Falls Contract, James P. Feehan, Melvin Baker
Dalhousie Law Journal
The 1969 Churchill Falls contract between Hydro-Quebec and the Churchill Falls Labrador Corporation has been the subject of political controversy. It has also been challenged in the courts, with appeals reaching to the Supreme Court of Canada. Yet, despite the scrutiny of those court cases, the political rhetoric, and the literature that has been spawned by this matter, an extraordinary element of that contract remains remarkably obscure. It is the contract's renewal clause. At the expiry of the contract's forty-four-year term in 2016, that clause requires an automatic renewal for twenty-five additional years at a fixed nominal price that is …
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Conflict Of Interest, Duress And Unconscionability In Quebec Civil Law: Comment On "The Origins Of A Coming Crisis: Renewal Of The'churchill Falls Contract", Sarah P. Bradley
Dalhousie Law Journal
As Professor James Feehan and archivist-historian Melvin Baker describe the circumstances in which the fateful renewal provision of the 1969 Churchill Falls hydro contract was negotiated, they suggest that the legal doctrines of conflict of interest or economic duress might offer a basis upon which the contract, or perhaps the renewal provision, could be impugned. In addition to interesting historical insights, their analysis offers the intriguing possibility that the government of Newfoundland may yet succeed in its long-standing battle to rid itself of its obligations under the grossly disadvantageous Churchill Falls contract.
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne
Dalhousie Law Journal
As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …
The Law Of Options, Keith Evans
The Law Of Options, Keith Evans
Dalhousie Law Journal
Little attention is devoted to the law of options in major Canadian texts on contract law or in periodical literature. One might, therefore, assume that the law in this area is well settled and that few major cases come before the courts. However, a review of appellate decisions in Canada indicates significant judicial interest in the topic which would challenge those assumptions. In fact, appellate courts in various common law jurisdictions continue to struggle with many doctrinal issues related to this specialized type of contract. This article provides a comprehensive review of the law of options in Canada, and identifies …
Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh
Franchising In The Shadow Of Contract Law: A New Fidelity For Business Relations, Richard Haigh
Dalhousie Law Journal
The institution of franchising has experienced a remarkable growth in North America in recent years. This has provoked a variety of legislative and judicial responses. This article examines the reasons behind the rise of franchising. It proceeds to examine the principal models of statutory regulation of franchise arrangements, and also the range of common law doctrines which courts have brought to bear on disputes arising out of such contracts. The author points out deficiencies in the existing models of franchise regulation and, drawing on legal responses to family disputes, proposes an alternative.
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Consideration And Estoppel: Problem And Panacea, Bruce Macdougall
Dalhousie Law Journal
In his book, The History of the Common Law of Contract, A.W.B. Simpson demonstrates that consideration originally seems to have meant the "matter of inducement" - the "why" of entering a promise.' He writes: "The essence of the doctrine of consideration, then, is the adoption by the common law of the idea that the legal effect of a promise should depend upon the factor or factors which motivated the promise. To decide whether a promise to do X is binding, you need to know why the promise was made."2 In modem terms, according to Simpson, a promise which lacks any …
Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne
Public Power And Private Obligation: An Analysis Of The Government Contract, Shannon Kathleen O'Byrne
Dalhousie Law Journal
This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government's liability in contract. The paper's overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or …
Morguard Investments Limited: Reforming Federalism From The Top, Peter Finkle, Simon Coakeley
Morguard Investments Limited: Reforming Federalism From The Top, Peter Finkle, Simon Coakeley
Dalhousie Law Journal
Nations are not only unified markets, but usually they are at least that. In most discussions about national unity, adequate account is taken of the importance of the free movement of goods, capital and people. Rarely, though, does the discussion encompass the necessity of legally assuring such movement in the domestic marketplace through the practical modality of secure remedies for breaches of obligations in contracts and tort. De Savoye v. Morguard Investments Ltd is a landmark decision by the Supreme Court of Canada that considers the extent of jurisdiction that provincial courts may exercise and the associated concern with the …
Duress In The Canadian And English Law Of Restitution:, G Hl Fridman
Duress In The Canadian And English Law Of Restitution:, G Hl Fridman
Dalhousie Law Journal
The early history of restitution reveals that duress was relevant in two situations. In the first, one party compelled another to pay him money by reason of some threat. In the second situation, one party compelled another to pay him money which was in fact owed by a third party to the one exercising the compulsion. The former situation was a straight forward one, in which the party exercising the duress falsely or legitimately (though perhaps erroneously) caused the party subjected to the duress to accept that a debt existed between the two parties, or that the party exerting pressure …
Greenwood Shopping Plaza Ltd. V. Beattie And Pettipas: Life Masquerading As A Contract Case, C. M. Arymowicz
Greenwood Shopping Plaza Ltd. V. Beattie And Pettipas: Life Masquerading As A Contract Case, C. M. Arymowicz
Dalhousie Law Journal
The Supreme Court of Canada held that the defendants in Greenwood Shopping Plaza Ltd. v. Beattie and Pettipas1 could not claim any benefit from a contract because they were third party beneficiaries thereto. Restated, the Court permitted the insurer of a building to reach through the landlord and the tenant, and recoup itself by saddling the tenant's employees with liability for negligently performing their jobs although it could sue neither landlord nor tenant. This result is so unpalatable to both business and labour that it will be avoided, and insurers will acquiesce. In this note I will, (a) by way …
The Law Of Contract, Paul Thomas
The Law Of Contract, Paul Thomas
Dalhousie Law Journal
There can be no denying the need for good Canadian legal textbooks. While recent years have seen more home-grown texts on the market there are many important areas left unserved. In the past year two Canadian text books on contract law have been published. One way of assessing these two books is to ask wehter they are suitable replacements for English contract texts which we have had to resort to for the want of anything Canadian. The heavy use of, and constant reference to, Canadian sources, both legislative and judicial, is, of course, a valuable asset. Needless to say, a …
On Contracting, R. A. Samek
On Contracting, R. A. Samek
Dalhousie Law Journal
Twelve years ago I drew attention in a paper to the importance of the discovery of performative utterances by the well known Oxford linguistic philosopher, John Austin, for a better understanding of the legal concept of contract.' In The Legal Point of View, I developed this concept into what I called the performative function of discourse,2 and in a recent paper I applied it to rebut an attack on the objective theory of contract. 3 My main aim in the present paper is to compare Austin's classification of infelicities, to which performative utterances are subject, with their legal analogues. Although …
Declaratory Judgments In Theoretical Cases: The Reality Of The Dispute, A. H. Hudson
Declaratory Judgments In Theoretical Cases: The Reality Of The Dispute, A. H. Hudson
Dalhousie Law Journal
It has long been recognised that a declaratory judgment may have special advantages in many contexts. Bailhache J. once went so far as to describe the power to grant declarations as one of the most useful functions of the Commercial Court in England,1 and, when the case went on appeal, Atkin L.J. described the declaration as "'one of the most valuable contributions that the courts have made to the commercial life of this country". 2 Despite the unqualified warmth of dicta such as these, the courts in England and Canada have stressed that there are limits to the availability of …
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Dalhousie Law Journal
Barnett v. Harrison' concerned the correctness of a trilogy of judgments of the Supreme Court of Canada which have stood for the basic proposition of contract law that a condition precedent expressed in a contract may not be waived unilaterally, notwithstanding that the condition was inserted and intended for the sole benefit of the party seeking to waive it unless the contract expressly provides such a power to waive. In the initial and leading case, Turney v. Zhilka, a contract for the purchase and sale of land was made conditional upon the property being "annexed to the village of Streetsville …
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Dalhousie Law Journal
Barnett v. Harrison' concerned the correctness of a trilogy of judgments of the Supreme Court of Canada which have stood for the basic proposition of contract law that a condition precedent expressed in a contract may not be waived unilaterally, notwithstanding that the condition was inserted and intended for the sole benefit of the party seeking to waive it unless the contract expressly provides such a power to waive. In the initial and leading case, Turney v. Zhilka, a contract for the purchase and sale of land was made conditional upon the property being "annexed to the village of Streetsville …
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Barnett V. Harrison – Unilateral Waiver Of Contractual Conditions Precedent, C. S. Barnett
Dalhousie Law Journal
Barnett v. Harrison' concerned the correctness of a trilogy of judgments of the Supreme Court of Canada which have stood for the basic proposition of contract law that a condition precedent expressed in a contract may not be waived unilaterally, notwithstanding that the condition was inserted and intended for the sole benefit of the party seeking to waive it unless the contract expressly provides such a power to waive. In the initial and leading case, Turney v. Zhilka, a contract for the purchase and sale of land was made conditional upon the property being "annexed to the village of Streetsville …
The Inconsistent Collateral Contract, David W. Mclauchlan
The Inconsistent Collateral Contract, David W. Mclauchlan
Dalhousie Law Journal
The parol evidence rule provides that evidence extraneous to a written contract cannot be received to add to, vary or contradict its terms. Although it can be so simply stated, this rule has been the source of a great deal of confusion in the law of contract. It was enforced rigidly when it first became established as part of the common law but has since been gradually relaxed. As the English courts became faced with new situations where too strict an adherence to the rule would have caused injustice, they created numerous apparent exceptions to it. The decisions of the …
The Inconsistent Collateral Contract, David W. Mclauchlan
The Inconsistent Collateral Contract, David W. Mclauchlan
Dalhousie Law Journal
The parol evidence rule provides that evidence extraneous to a written contract cannot be received to add to, vary or contradict its terms. Although it can be so simply stated, this rule has been the source of a great deal of confusion in the law of contract. It was enforced rigidly when it first became established as part of the common law but has since been gradually relaxed. As the English courts became faced with new situations where too strict an adherence to the rule would have caused injustice, they created numerous apparent exceptions to it. The decisions of the …
The Inconsistent Collateral Contract, David W. Mclauchlan
The Inconsistent Collateral Contract, David W. Mclauchlan
Dalhousie Law Journal
The parol evidence rule provides that evidence extraneous to a written contract cannot be received to add to, vary or contradict its terms. Although it can be so simply stated, this rule has been the source of a great deal of confusion in the law of contract. It was enforced rigidly when it first became established as part of the common law but has since been gradually relaxed. As the English courts became faced with new situations where too strict an adherence to the rule would have caused injustice, they created numerous apparent exceptions to it. The decisions of the …
The Inconsistent Collateral Contract, David W. Mclauchlan
The Inconsistent Collateral Contract, David W. Mclauchlan
Dalhousie Law Journal
The parol evidence rule provides that evidence extraneous to a written contract cannot be received to add to, vary or contradict its terms. Although it can be so simply stated, this rule has been the source of a great deal of confusion in the law of contract. It was enforced rigidly when it first became established as part of the common law but has since been gradually relaxed. As the English courts became faced with new situations where too strict an adherence to the rule would have caused injustice, they created numerous apparent exceptions to it. The decisions of the …
The Inconsistent Collateral Contract, David W. Mclauchlan
The Inconsistent Collateral Contract, David W. Mclauchlan
Dalhousie Law Journal
The parol evidence rule provides that evidence extraneous to a written contract cannot be received to add to, vary or contradict its terms. Although it can be so simply stated, this rule has been the source of a great deal of confusion in the law of contract. It was enforced rigidly when it first became established as part of the common law but has since been gradually relaxed. As the English courts became faced with new situations where too strict an adherence to the rule would have caused injustice, they created numerous apparent exceptions to it. The decisions of the …
Misleading Advertising: Prevent Or Punish?, Patrick Fitzgerald
Misleading Advertising: Prevent Or Punish?, Patrick Fitzgerald
Dalhousie Law Journal
I "Promise, great promise," said Dr. Johnson, "is the soul of advertisement." But what if the promise isn't kept? What sort of crime is that? No crime at all, at common law. The common law allotted promises and their breach not to the criminal law but to the law of contract. More important still, the law saw the problem of advertising as part of a wider problem to be solved not by law but by a different institution - the market. The problem of advertising, after all, is one special facet of the conflict between seller and buyer.' According to …