FUNDAMENTALS OF TORTS

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Assignment 1MODULE ONE: FUNDAMENTALS OF TORTSQuestion OneDistinguish between libel, slander, defamation, trade slander and deceit, indicating in whatsituations each would apply and the significance of the distinction.Question TwoImprisonment can take the form of confinement, arrest, or submission to authority. Explain thedifferences and determine what is necessary to sue for false imprisonment.Question ThreeDistinguish between assault and battery. Discuss the right of self-defence with regards to assaultand battery. Discuss how doctors avoid liability when they operate on or otherwise treatpatients.Question Four“‘— What are the necessary elements that must be present for a person to be classified as atrespasser? Consider the context of a homeowner with unruly guests, or a business with unrulypatrons. Apply the Trespass to Property Act in your answer.Question FiveExplain, with reference to decided cases, what a person must do to establish negligence. Expandon the tests which may be applied and discuss what remedies and defences are available. Howdoes negligence relate to professional liability?MODULE Two: FORMATION OF CONTRACTSQuestion SixList and explain the elements that are required for an agreement to be a contract. In your answer,consider void and voidable contracts, formal and parol contracts, unenforceable and illegalcontracts, implied terms, unilateral contracts, gratuitous promise, seals, offer, acceptance, andconsideration.COMM 4716EL 10 Assignment File PageSQuestion SevenExplain the circumstances in which a minor, mental incompetent, or drunk person may escapeliability for a contract and the circumstances in which they or their guardian may be bound orbecome bound by the contract.Question EightDiscuss in detail the requirement of writing, including reference to decided cases, statutes andthe common law.Question NineDiscuss the concept of ‘intention to be bound’, in the nature of commercial and non-commercialcontracts, having regard to the necessity of writing, how the courts view agreements and the testsused to determine intention.MODULE THREE: INTERPRETATION OF CONTRACTSQuestion TenExplain the types of mistake and the types of misrepresentation which can give rise to a court“-/ being required to interpret a contract. What remedies are appropriate to each type?Question ElevenDistinguish among duress, undue influence, and unconscionability and give two examples ofeach. Describe the remedies available for each type.Question TwelveDescribe the types of assignments which may occur. Give two examples of each. Consider whatrequirements are necessary to make an enforceable assignment.Case OneCampbell, an antique store owner, had an 1867 ornate Victorian desk purported to have beenowned by Sir John A. Macdonald. Campbell put the following ad in the newspaper: “1867 ornateVictorian desk purported to have been owned by Sir John A. Macdonald in very good shape,$25,000,” along with his store address and phone number. Gibson, a regular customer of. Campbell, saw the ad and went to Campbell’s store to see the desk. The desk was not on theregular sale floor but being held in the back room. After some discussion Gibson said that hewould pay $20,000 for it, but Campbell said it was not enough. Campbell said that he would sellit for $24,000 but not anything less. He would allow Gibson time to arrange financing since this.~COMM 4716EL 10 Assignment File Page 6——–~~‘~was such an expensive desk. Gibson said that he would have to think about it. Accordingly,Campbell wrote on a sheet of paper as follows: “I, R. Campbell, agree to sell to M. Gibson my1867 Sir John A. Macdonald Victorian desk for $24,000, usual financing terms apply. Inexchange for Mr. Gibson’s promise to give this offer due consideration, I agree to hold the offeropen until Friday noon, September 24.” (signed) R. Campbell (dated) Monday, July 1st.Gibson took this document home with him. On Tuesday morning Campbell was offered $25,000for the desk by McKay, which he accepted. He immediately wrote Gibson a letter revoking theoffer. In the meantime, Gibson had already decided to accept the offer and sent Campbell a letterto that effect on Monday evening. This letter was addressed to Campbell and stated, “After dueconsideration of your offer to sell me your 1867 Sir John A.Macdonald Victorian desk, I herebyaccept, delivery to be at my home Friday, July 5th at 5:00 pm:” (signed) J. Gibson, (dated)July Ist. Gibson received the letter of revocation on Wednesday morning. Campbell received theletter ofacceptance on Thursday afternoon.McKay was an undischarged bankrupt. Campbell found out about this on Thursday morning.What this meant was that McKay could not enter a transaction without the okay of his Trustee inBankruptcy’s consent which was not forthcoming. Campbell phoned Gibson and told him toignore the letter of revocation. Gibson responded that while he had already sent his letter ofacceptance, he had changed his mind. He had lost his job after he had sent the letter ofacceptance and could no longer afford to purchase the desk. He had not even tried to findfinancing as he doubted his bank would provide it given his new circumstances. Campbellinsisted that Gibson go through with the deal and hung up. Campbell received Gibson’s letter ofacceptance about three hours after this telephone call.Campbell then put the desk in his delivery vehicle so that the next morning, Friday, he coulddeliver it to Gibson, but during the night someone stole his delivery van. The van was discoveredearly on the Friday morning by the police completely destroyed by fire, including the contents. Inthe meantime, Gibson had discovered that he could resell the desk to the Canadian Museum ofCivilization for $30,000 and was now anticipating the delivery, since he had already agreed tosell the desk to the museum. When the desk was not delivered, he sued Campbell for breach ofcontract.Gibson comes to you, his lawyer, asking you to explain the legal positions of all the parties. Howwould you respond?Case TwoFrancis was operating his snowmobile around a cross-country ski resort area a long way from theregular snowmobile trails. He had his thirteen-year-old son, Evan, along with him. He gotbogged down in some deep snow, so he had Evan drive the snowmobile while he worked atfreeing the tracks from the deep snow. While Francis was freeing the tracks, the snowmobilefound purchase on some crusted snow and accelerated through the bush about thirty feet from themarked ski trail and struck George, a skier who was off trail doing a bit of “bush-whacking.”George was not dressed in the usual colourful ski garb, but was instead wearing an old gray coatand dark brown pants. He was very hard to see in the fading twilight. (George’s skiing“,-“COMM 4716EL 10 Assignment File Page 7companions had already headed back to the lodge.) George suffered a leg and ankle injury in thecollision. As soon as Francis heard the screams, he rushed to the accident area, stopped thesnowmobile, and provided aid to George. It was clear that the leg was broken. As well, by thistime George was suffering from hypothermia, frostbite and shock. Francis took George on thesnowmobile to the resort, where he was immediately taken to the local hospital.George was admitted and examined by Dr. Foote. The doctor treated George for the brokenankle. He did not see that the leg had also been injured below the knee where a bone protrudedfrom the skin. This injury became infected while George was recovering in the hospital from thehypothermia, frostbite, and shock and it became necessary to amputate the leg. Foote was anemergency room doctor and not a surgeon so he turned George over to Dr. Cutter, the localsurgeon, with his diagnosis of what was needed. Cutter amputated the wrong leg. When the errorwas discovered, Cutter then amputated the correct leg.George then sued Francis, the owner of the snowmobile, his son, Evan, who was driving at thetime of the accident, Dr. Foote, Dr. Cutter, and the hospital for the injuries he suffered. Explainwhat torts have been committed, the arguments that can be used in defence, and the liabilitywhich will likely be imposed on each of the parties.Case ThreeSchuster owned two volumes ofa rare edition of Chaucer’s The Canterbury Tales. One volumewas in excellent condition. The second volume was in poor shape, but nevertheless intact.~. Schuster sold both volumes to MacPherson, a rare book merchant.MacPherson loaned the two volumes to a local library for a rare book display. Unknown toMacPherson only the volume in excellent condition was put on display with a collection of otherrare books. The second copy was placed in a display designed to show how rare books might berepaired, but the book was placed in such a position that neither its title nor its contents could bedetermined.A week after the books had been returned to their owner, Holt, a collector of rare books,telephoned MacPherson to determine if he had a copy of The Canterbury Tales for sale.MacPherson replied that he did, but it was “not in top shape.” Holt then asked if the copy hadbeen on display at the library, and MacPherson said, “Yes. IIHolt informed MacPherson that she had seen the display of books at the library, and would beinterested in purchasing the volume. A price was agreed upon, and Holt sent a cheque toMacPherson for the agreed amount.MacPherson sent the volume that was in poor condition to Holt by courier. On its receipt, Holtcomplained that the volume was not the same one on display at the library. MacPherson. maintained that it was, and refused to return Holt’s money.Holt brought an action against MacPherson for a return of the money that she had paidMacPherson.~-..~.-COMM 4716EL 10 Assignment File PageSIndicate the nature of Holt’s claim, an express an opinion as to the outcome of the case..Case FourGraham was a well-known and highly regarded architect. Campbell, who had come to Canadafrom Scotland and was a country-man of Graham, requested that he design a classic Gallowaycottage (a type of stone building from southwest Scotland) for him to build at his retreat inSouthern Ontario in the area that reminded him of his home. Campbell was going to build ithimself as he was a building contractor and knowledgeable about building. He wanted it to befully compliant with all local building codes and by-laws. Graham said that he would discounthis usual rate of $200.00 per hour for the work and estimated that it would take him about oneweek to produce the plans. Campbell indicated that it was important to have the plans availablewithin two weeks when he was returning from his vacation in a remote area of Scotland as thebuilding season was quite short and that all the time would be needed to finish it.. Campbell thenleft on his holidays.Campbell returned from his holidays and found that the work was complete. He was very happywith the design and how it would look on his retreat lot. He was completely satisfied with thework. Graham explained that, since he was away, Graham had had to proceed, knowing the timeconstraints despite the difficulties that he had with the local authorities regarding what wasallowed to be built and the local interpretation of the building code, and this had entailed a greatdeal of extra work. Graham detailed that he had put in more than 100 hours, working overtimemany nights, to finish the design on time and acceptable to the building authorities. Graham said~. that he had tried to contact Campbell to discuss the difficulties but could not find him.The final bill before the discount was $21,000, but Graham had discounted this to $14,000.Campbell objected to this saying that he could have received a comparable plan from his regulararchitect for $5,000, and offered him that sum. He also indicated that because of the lateness ofthe season, that if he didn’t get the plan immediately, he would sue for the damages occasionedby the delay in building.Graham refused to deliver the plan unless he received payment for the $14,000 immediately andthat he would sue for the full $21,000 if he didn’t get it.1. Assume that you are the lawyer for Graham. Advise him of his legal position and likelysuccess.2. Assume that you are the lawyer for Campbell. Advise him of his legal position and likelysuccess.>,,–.COMM 4716EL 10 Assignment File Page 9

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