November

When thinking of November the first thing that comes to my mind is Remembrance Day. On May 21st of this year I participated in "Soldier for aDay" at CFB Kingston. I have posted pictures and made a few jokes about my lack of abilities -- particularly when falling from the "confidence" course to flat on my back from about 8 feet in the air.

While the day was fun, embarassing, tiring and filled with adventure -- it had a very serious overtone. I am in awe of each member of the military - whether he or she is at the front lines of the combat or behind a desk in Kingston, Ontario. Each one of them has dedicated themselves to a mission on behalf of the citizens of Canada. Whether you support a war or are committed to Canada being only on peace keeping missions -- the members of the military commit themselves to following orders and putting themselves in harms way. It is not something to take lightly, but until you have attempted to walk one foot - never mind one mile - in the shoes of a member of the military, you are unable to fully appreciate the totality of their commitment.

So, to each member of the military, whether in combat; away from home; or at a desk in an office -- on behalf of myself and my family - God Bless You and your families.

allan

INDEX - NOT

For those of you who are either uninitiated (sp?); or just plain wonder -- the world of blogs does not particularly lend itself to indexing. In addition, for those of you who have taken an income tax or business course you will be familiar with the phrase "Last in -- First out" or something like that.

Anyway, the most recent post is what you will first see on the site -- to get to some of the articles dealing with associate arrangements; purchase and sale of practices; practice valuations -- you will have to scroll down and go to "previous posts" and continue and continue until you reach the proverbial heart of darkness. In the case of the article on purchase and sale of practices -- there are about 14 or so postings -- so start at the earliest postings and move forward. Or I suppose I could send you the consolidated version. ;-))))

End of Summer

I am playing out my bucket list with major exuberance. For the summer I was able to: go to my first nascar race; play soldier for the day; travel to New York, Ottawa and Cleveland. Playing with my motorcycle via Dr. John and doing whatever comes naturally.

The fall schedule is already lining up with serious work, lectures, writing and some hearings and minimal dollar trials. Amazing to me how many people think I have retired because of my departure from teaching -- even more amazing that I don't miss the teaching because of what I perceive as a change in the attitude of students. Decades ago -- if a teacher missed a class the students would revolt and demand that the class be taught. Now it appears as if a class is an inconvenience to students. I had a new graduate in my office who was in my last class two years ago and after graduation went to a management course. She indicated that the material she paid for was not much different than what was taught at CMCC. I guess if you pay for it, it has more value. I suppose I could have made a few dollars selling information -- but alas, the road less taken.

Welcome to the beginning of September and a wonderful part of the year in Ontario, Canada.

The Smell Test - an editorial

The Smell Test

The issue concerning when actions and conduct do not meet the “smell test” can be summed up much like in the trial in which the judge was asked to define pornography. His answer was: “I can’t define it, but I know it when I see it.”

From the moment that we each were able to communicate with the world, we had an innate appreciation of what was inherently right and what was wrong. Unfortunately it did not take too long for that understanding to be skewed by our interaction with other human beings. It starts at the television set, moves on to the computer and computer games and becomes entrenched once we are foisted upon the educational system starting at day care, kindergarten or grade one. It seems that simple things like the use of appropriate language, sharing and being polite fly out the window as soon we start interacting with others.

The relationship of individuals and communication between persons becomes even more of an ordeal when an individual enters into a profession. Unlike occupations which may allow for solitude and the ability to act without interaction and communication, most professions, as in the chiropractic profession, require the ability or, at a minimum, the necessity of being able to rationally, reasonably and politely communicate with patients.

We all appreciate our patients or clients. We appreciate their trust and their willingness to place their health, body and soul in our custody. But alas, not every interaction is going to be so pleasurable that the patient’s trust overcomes the “literal pain” that a practitioner has to experience in order to comply with their professional responsibilities. Having to “endure” a patient may well bring to mind that age old adage that “the key to success is sincerity and when you can fake sincerity you have it made”.

Patients are an interesting flock of individuals made up of all kinds of different characteristics, quirks and habits. Some may have chronic problems. Some have acute problems. Each one requires care. However, when in your office they are patients, not friends, not family, not customers, not anything other than patients. And that puts the doctor and the patient in an interesting venue.

The doctor will use of his or her education, experience and repertoire to illicit from the patient all of the information that is required to arrive at a conclusion as to what is required for the patient’s best interests. Of course, depending on what brought the patient into the doctor’s office, the patient may well desire a conclusion that is not supported by the objective testing of the doctor.

If a practitioner has not had a patient in his or her office that has no objective symptomotology; been treated for a complain that should have been resolved months ago; has changed doctors a multitude of times; or is on a disability claim for which the patient is in a state of non-compliance, then the practitioner has not been in practice long enough or is just plain lucky -- and none of us can be that lucky.

A chiropractor cannot become a party to a patient’s economic, social or litigious environment any more than he or she can become sexually involved with the patient. It is an inappropriate relationship that allows for an abuse of the doctor-patient relationship whether in the office or involving third parties such as insurance carriers. The fact that a patient seeks health care is not an excuse to provide care if none is warranted. While at the time of the “visit” it may seem reasonable to provide the care, and whether there is billing for such treatment or no billing, imagine having to review your patient’s file some 2 years hence and in hindsight indicate the necessity, and therefore the validity, of providing that treatment. If it was not justified when provided, it will seem even more inappropriate when looked at by third parties many years later.

A chiropractor is more than a technician. A chiropractor is required by law to assess, diagnosis, create a plan of management, obtain informed consent, refer when necessary, etc., etc., etc. I have no idea of the length, width, breadth or volume of tests that are associated with the profession of chiropractic and health care in general. They must obviously be extensive, and in some cases, are required as a minimum guide to the therapeutic necessity for treatment or non-treatment of a patient’s condition.

I have seen, heard and defended chiropractors who have dealt with patients who desire treatment, beg for treatment; pray for treatment and are grateful for the treatment. But in hindsight when revisited years later, the 160 treatments given without a reassessment; the 10 treatments of a patient over 6 weeks with a cost into the many thousands of dollars; the patient who sought out 6 doctors before finding one who would justify his complaint; or the doctor who had sex with the patient because the patient was lonely and wanted the comfort just don’t satisfy the definition of what a reasonable chiropractor would do in the circumstances. In other words the justification for the treatment does not satisfy the professional standards notwithstanding what the patient may want – whatever the reason for the treatment -- it just doesn’t pass the “smell test”.

MULTIPLE GUESSING

The following is another example of an examination given to 3rd year students prior to their entering into a clinical environment. Good luck -- and remember -- this was given in 1996 and was in Ontario -- so in the words of so many lawyers -- "govern yourself accordingly". (and no apologies for the formatting -- this is hard enough to produce)


1.In order to establish negligence, the patient/plaintiff will have to:

a. prove the doctor touched him or her.
b. establish a lack of consent.
c. establish that an error took place.
d. prove the existence of a duty.
e. prove his or her costs.

2.A doctor cannot abandon a patient:

a. who doesn't pay the bill
b. who doesn't return for a visit
c. to whom no duty is owed
d. who sees another doctor
e. if he sends a letter stopping treatments

3.The Canadian Chiropractic Protective Association was established:

1.because of the lack of insurance coverage afforded to the chiropractors.
2.as a non-profit corporation.
3.not to provide insurance.
4.to oversee and manage claims for chiropractors.
5.to act in the best interest of the individual chiropractor.

Which of the following combination is most correct?

a. 1,2,3,4,5
b. 1,2,3,4
c. 1,4,5
d. 4,5
3. 1,2,4

4.The Canadian Chiropractic Protective Association has had to deal with problems such as:

1.chiropractors who are mischievous and devious.
2.chiropractors who have been alleged to have coerced patients into being adjusted.
3.uncooperative practitioners.
4. patients who will not settle law suits.

Which of the following combinations is most correct?

a. 1,2,3,4
b. 1,2,3
c. 3,4
d. 1,4
e. 2


5.With respect to a doctor's standard of care, which of the following statements are correct?

1.A doctor has no duty to warn a patient against high risk athletic endeavour, such as water-skiing.
2.A licensing board may change a doctor's duties and responsibilities.
3.Advertisements which claim specialized expertise may elevate a doctor's duty of care.
4.If a doctor fails to make an appropriate referral to a specialist, his treatment may be measured against the skill and knowledge of the specialist to whom he should have referred.
5.A doctor has no duty to warn a patient of driving hazards if the danger results from an obvious physical problem, such as restricted cervical rotation.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 2,4,5
c. 2,3,4
d. 2,3
e. 3,4

6.The creation of a doctor/patient relationship exits upon:

1. The doctor charging a fee.
2. The signing of an acknowledgement by the patient.
3. The doctor accepting the patient for care.
4. The doctor having the expertise to provide care to the patient.
5. The patient having contacted the doctor in his or her professional capacity.

Which of the following combinations is the most correct?

a. 1,2,3,4,5
b. 2,3,4,5
c. 3
d. 4
e. 5


7.Which may produce a doctor/patient relationship?

1.The doctor's telephone conversation with a former patient.
2.The doctor's response to a friend's questions about their health at a social function.
3.A receptionist giving out information in dealing with a prospective new patient.
4.Providing information on general health care at a lecture taking place at a public library.
5.Publishing an article on health care in a newspaper.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,2,3,4
c. 1,2,3
d. 1,2
e. 3


8.Professional liability coverage does not afford protection:

1.When the doctor is under the influence of drugs or alcohol.
2.When the doctor deviates from the standard of care in his locality.
3.When the doctor has failed to adequately train his staff.
4. If the doctor did not take x-rays.

Which of the following combinations is the most correct?

a. 1,2,3,4
b. 2,3
c. 1
d. 4
e. 1,4

9.With respect to chiropractic legal reports which of the following statements is correct?

1.The report should contain information concerning the accident, liability, examination, diagnosis and prognosis.
2.The cost of the report is the responsibility of the patient's insurance company.
3.The report is used to settle the issue between the parties.
4.The prior history of the patient is important to determine if the defendant caused the accident.
5.The cost of the treatment must be attached to the report, as an appendix.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,3,5
c. 2,4
d. 3,5
e. 5


10.When you are advised by a child/patient about a matter which constitutes abuse you should tell the child that:

a."I am required to report this matter."
b. "You were right in not keeping this a secret."
c. "Are you sure that this happened?"
d. "It's good that you are telling people."
e. "We will talk about this during your next appointment."


11.With respect to advertising, which of the following statements is correct?

1.The public interest in professional advertising requires that advertising in all media be truthful, clear, professional and responsible.
2.A chiropractor should not claim professional superiority.
3.A chiropractor should not make claims of guaranteed success.
4.Ultimately, advertising is a matter of professional ethics and responsibility, not law.
5.Advertising should not contain self-congratulatory statements.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 1,2,3,5
c. 1,2
d. 3,5
e. 1


12.With respect to "protection strategies" in office procedures, which of the following comments is correct?

1.A release of liability signed prior to treatment is enforceable.
2.As soon as a person comes into a doctor's office for an appointment, the doctor/patient relationship is established and the doctor cannot refuse to treat.
3.Fee discussions should be left to staff. The doctor should tell patients: "You'll have to discuss fees with our office manager. I'm only concerned about trying to correct your problem."
4.There is no need to ask for x-rays from a hospital emergency room if a doctor knows from previous experience he will receive no response.

Which of the following combinations is the most correct?

a. 1,2,3,4
b. 2,3,4
c. 1
d. 3,4
e. none of the above

13. Patient treatment records should be kept:

a.Six years after the tax return for that period was filed.
b. Two years after the patient injury.
c. Two years after the patient reaches majority.
d. Seven years.
e. forever.

14.The following situation is presented as a "res ipsa loquitur" (the facts speak for themselves) case:

a. A chiropractor's failure to diagnose lung cancer.
b. A patient's stroke after a cervical adjustment.
c. A D.C.'s misinterpretation of a patient's response to therapies leading to an improperly increased therapy schedule.
d. A chiropractor's failure to obtain a patient's informed consent when a risk of a particular adverse result was one in two million.
e. None of the above.


15.With respect to "protection strategies in securing informed consent" which of the following statement is correct?

1.If there is only a one-in-a-thousand chance of a complication occurring during treatment, it is not considered "material" and a doctor has no legal duty to advise the patient of its possibility to satisfy "informed consent" requirements.
2.If the patient signs an informed consent form, the doctor may still be liable for negligence.
3.Unless a patient specifically asks to have treatment risks explained to him, the doctor is under no duty to provide them. Once asked, however, he must reveal all material and inherent risks.
4.An informed consent must be obtained from a minor.
5.A patient gives his "implied consent" to a spinal adjustment when he goes to a doctor of chiropractic.

Which of the following combinations is most correct?

a. 1,2,3,4,5
b. 2,3,4
c. 2
d. 2, 5
e. 5

SOMETHING A LITTLE DIFFERENT - testing one, two, three

If you have been in practice for decades; if you just graduated from a health care program and are ready to get licensed; or you are just curious about what it takes to run an office -- check out the following which was an examination which I gave in 1997. AND for those of you who actually took the test - I apologize for any anxiety or panic attack that you might suffer.


CP 405 JURISPRUDENCE AND PRACTICE DEVELOPMENT

INSTRUCTOR: Allan M. Freedman
FINAL EXAMINATION
DATE: February 19, 1997


INSTRUCTIONS:

All questions must be answered.
All answers must be legible and may be in point form.
The value of questions appear to the left of the question.


1. List 4 ways in which a chiropractor may carry on practice.


4 marks


2. In the purchase of a chiropractic practice, list 4 examples of conditions which may be inserted in the Offer to Purchase.


4 marks


3. List two characteristics of a demand loan.


2 marks


4. List 5 things which should be covered in an associateship agreement.

5 marks


5. List one provision which would be inserted in an associateship agreement, but would not be inserted in a partnership agreement.

2 marks


6. List 8 factors relevant in considering the purchase of a chiropractic practice.


8 marks


7. In deciding a plan for the purposes of constructing a chiropractic office, list 5 factors to be considered.


5 marks


8. List 4 ways in which an accountant may assist a chiropractor.


4 marks


9. List 3 criteria necessary in order to be able to deduct business expenses.


3 marks


10. List 4 examples of capital expenses in a chiropractic practice.

4 marks


11. List 4 examples of operating expenses in a chiropractic practice.


4 marks


12. List 4 things which should be set out in a clinic policy statement of a chiropractic practice.


4 marks




13. List the 4 criteria which a chiropractor must establish in order to bill for OHIP services.


4 marks



14. List 5 types of insurance which a chiropractor should maintain for a chiropractic practice.


5 marks


15. What is a net net lease?

2 marks


16. What documentation should be provided to the bank prior to requesting a loan for a chiropractic office?

5 marks



17. What is the importance of setting out a partnership agreement in writing?

2 marks


18. What is the effect of a partnership agreement on 3rd parties dealing with the partnership?

2 marks


19. List 4 factors which are important in considering the leasing of space for a chiropractic practice?

4 marks


20. Under what circumstances may a contract be unenforceable?


2 marks


21. What is necessary to constitute a valid contract?


3 marks


22. What is the difference between fiscal year ends for a professional practice and the fiscal year ends for individuals?


2 marks

Contracts for chiropractors

a 1991 set of lecture notes - they could have been from 1891 or 2008:



September 11, 1991
LECTURE TWO - CONTRACTS

Definition of a contract: A valid and operative contract may generally be defined as an agreement free from vitiating factors such as mistake or misrepresentation and constituted by the unconditional acceptance of an outstanding offer involving a reasonably precise set of terms, between two or more contractually competent parties who intend to create mutual and reciprocal rights and duties that may be the subject of judicial sanction if they are expressed in any required form, are free from the taint of illegality or immorality, and are not subsequently discharged by law, by agreement or breach or by sufficient supervening circumstances.

A contract is an agreement between two parties.

Contract law permeates all parts of a chiropractic practice from the purchase of equipment, lending agreements, providing of services and receiving payments.

All contracts are promises but not all promises turn into contracts. ie. I promise to buy your car. I promise to buy your practice. Both parties in a contract will have made a promise to each other.

Agreement to enter into an agreement is not enforceable.

This course is not intended to teach you how to either write a contract or determine the validity of a contract. We are more concerned about become familiar with the elements of a contractual arrangement in order to determine how a contractual obligation arises and under what circumstances the obligations come to an end.

It is amazing how many people execute agreements without reading or understanding the obligations to which they have become contractually bound. Not reading or understanding a contract is irrelevant to being bound to the contract. ie. purchasing equipment, services, lending or even real estate.

Do not presume that what is put down on paper is fair to both sides of a transaction.

A lawyer prepares a contract on behalf of a client, not on behalf of both parties to a contract.

What is advantageous to one party may not be advantageous to the other party.

Contracts do not have to be fair to be enforceable in court. The contract may actually be very disadvantageous to one party in a contract and yet still be enforceable.

What does it take to have a valid contract?
offer and acceptance
consideration
competent parties
genuine consent
legal purpose

A contract is an agreement enforceable at law. Not all agreements are legally binding. The parties must intend to assume legal rights and duties as opposed to engagements of a social nature. ie. missing a theatre party.

The contractual intention does not have to be expressed in a formal way. The conduct of the parties may be enough to prove the existence of a contract. ie. entering into a restaurant
Even if the parties intend to enter into a contract it may still be unenforceable if it does not comply with legal requirements involving a)form or b)the necessary elements of validity.

FORMS OF CONTRACT

Specialty Contracts: one that must be "in writing and under seal". Must comply with the Statute of Frauds, ie. guarantees and purchase of real estate, any agreement not to be performed within one year from its creation (partnership agreement).

The writing of the contract may involve only a written memorandum ie. associateship agreement with memo vs. contract

Part performance may be a method of avoiding the obligation for a contract to be in writing.

OFFER AND ACCEPTANCE

Is it an inventation or is it an offer to sell. Why is it important? Carbolic Smoke Ball case.

There must be an intention.
If a chiropractor says in exasperation in a chiropractic meeting: "I would sell my practice for ten thousand dollars right this minute if I could get it?" If someone in the audience says you've got a deal is there a contract? Remember it must be enforceable.

The offer and acceptance must be communicated. An offer must be made and the offer must be accepted.

There are circumstances where acceptance does not have to be communicated. ie. rewards and contests.

In some cases, conduct will prove the acceptance of all of the terms of the contract, parking stubs or admission ticket to sports events, with certain exceptions

An offer will lapse and cannot be accepted if either the person who makes the offer retracts it before it is accepted, the offer dies, or it not accepted within the time specified or if no time is specified then within a reasonable time, ie. purchasing commodities such as food.

The offer must be accepted in the manner stipulated or indicated in the offer. If an offer requires acceptance by mail then no other method of acceptance may be acceptable.

Method of acceptance is important because it will determine whether there is in fact a contract. ie. if the contract expressly or impliedly requires acceptance is to be by mail then the contract is closed as soon as the letter of acceptance is placed in the mail, even though there is some delay.

If the method of acceptance is neither expressed nor implied in the offer the acceptance may be made by any method ie mail, telegram, fax or telephone but the acceptance is not effective until it is actually received.

A refusal of an offer causes it to terminate and cannot be accepted unless the offer is repeated., ie. sell my practice for 100,000. I'll buy it for 75,000.00. No. O.K then I'll buy it for 100,000.00. However, a mere inquiry as to whether the terms of the offer can be changed is not considered a counter offer or a refusal.

An offer may be revoked or withdrawn at any time before it is accepted. To be legally withdrawn the revocation must reach the person to whom the offer was made before that person's acceptance has become effective.

CONSIDERATION

A contract requires consideration to make it valid. Consideration has been defined as "some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by another."

If a person gratuitously promises to supply his services, the person could not be held responsible for a breach of contract but could be held liable for damages for negligence if the work was not done properly.

In charitable matters pledges are generally unenforceable unless specific consideration can be shown for the promised subscription ie. the building of a room in a hospital.

Adequacy of Consideration: Consideration must be of some value in the eyes of the law, but it need not be adequate. ie stamp collector or baseball collectors or chiropractic practices for sale.
Friendship, gratitude, natural love and affection are not valuable consideration and will not make a promise legally binding.

Past Consideration. Past consideration is not legally enforceable since promises of this nature are really gratuitous.

Forbearance may be proper consideration. If you do not sue me then I will provide some other service for you.

Illegal Consideration: ie. a promise to bribe a public official, an agreement to give false evidence

COMPETENT PARTIES

Generally the law regards a sane, sober adult as being capable of managing his or her own affairs and therefore able to make contracts of a binding nature. However some persons are regarded as less than fully capable and their ability to make contracts is restricted for their own protection: The major classes of persons who enjoy this protection are:

1 Minors:
2 Mentally incompetents
3. Intoxicated persons ie. drugs or alcohol

Should not be allowed to be taken advantage of. Such contracts are generally voidable. Voidable contracts are contracts which are valid and enforceable but may be accepted or avoided by one or two of the parties. The person to be protected may elect to treat the contract as either binding or not binding as the person wishes.

1. Minors: divide into four types of contracts:
Valid Contracts: apprenticeships and contracts of services for the infant's benefit
Void Contracts: clearly prejudicial to the infant or detrimental ie. guarantees or releases of claims for injuries or compensation
Voidable Contracts: may either accept or avoid the contract. A voidable contract can be divided into two classes:

a. A contract which is binding on the infant unless he takes some step to repudiate the contract during his or her infancy or within a reasonable time after reaching his or her majority. The are contracts involving acquisitions of an interest in property of a permanent nature with a continuing obligation, ie. leases or purchases of shares in companies

b. contracts which are not binding on the infant unless ratified after he or she reaches majority. These are the majority of the contracts for things like purchase of cars, bicycles, and personal items

The effect of avoidance does not indicate that the infant will be reimbursed for any consideration already expended. The exception is the contract in which no benefit has been given the infant.
Minors must pay for necessities of life ie. food and shelter with the proviso that these are suitable to the infant's circumstances or "station in life" and are needed at the time of the purchase.

Consideration must be fair.

The situation will not change because an infant lied about his or her age.

Parents under Federal and Provincial Legislation may be responsible for providing the necessities of life for a minor or someone in need of protection

A child may be the agent of the parent. This would be considered an agency relationship and could be created by express or implied approval of the relationship to third parties. Ie. advising a storekeeper that the child can buy anything he or she wants. or by implication when a child from time to time makes purchases in a store on a parent's account.

Intoxicated Parties:

A contract is voidable if it is established that:

1.the condition of intoxication or insanity made the person incapable of understanding what he was doing, and

2.the other contracting party knew of the condition

In any event such persons will be responsible for the necessities of life.

If such a person elects to avoid a contract, he or she must repudiate it within a reasonable time after recovering from his incapacity and ascertaining what he or she has done.

Other parties having Limited powers to contract:

Corporations: it is a creature of statute and is limited by legislature and by the by-laws of the corporation ie. mining companies, banks, charitable institutions

GENUINE CONSENT

Consent is not genuine if it was obtained through misrepresentation, either innocent or fraudulent, or by means of undue influence or duress. May not be real if there was a mistake about some fundamental condition of the contract, ie. 1988 car instead of 1990 car.

Misrepresentation: A false statement of a material fact. A material fact is one that induces or brings about a contract. ie. 1988 instead of 1988 not that it has fuzzy dice unless the parties agree that it is material. Can be an innocent misrepresentation if the party thinks it is true and it was said without intent to deceive, or can be fraudulent if it was intended to deceive either deliberately or with reckless regard for the truth.

For innocent misrepresentation then rescission of the contract, and put the parties back in the position they would have been in if the contract had not been made. Rescission could be lost and then must be dealt with by damages.

For fraudulent misrepresentation then could be a tort. Could claim either rescission, damages or both.

Undue Influence: The improper use of any power exercised over the mind of a contracting party so that consent is not voluntary. This would create a voidable contract. Person alleging the undue influence must allege and prove the undue influence. ie. wife and husband. Independent legal advice.

Duress: Some unlawful pressure imposed upon a person which compels him or her to enter into an agreement against his or her will ie. violence. Again, voidable and must be proven.
Mistake: mutual mistake voids a contract since it was not supposed to happen.

CAVEAT EMPTOR: a bad bargain does not void the contract.

LEGAL PURPOSE

A contract is not enforceable it its object is contrary to established law (illegal) or against public policy. Otherwise people may contract as to anything.

A contract to commit a crime or perform a tortious act is illegal and void.

Some provincial and municipal laws require certain professional people and tradespeople to be licenced to pursue their profession or trade. If they are unlicenced then such contracts would be unenforceable at law.

Interest Act

Gambling Debts

Consumer Protection

Non-competition agreements: contracts in restraint of trade

need consideration and cannot be contrary to public policy (ie reasonable)

Contracts in restraint of competition

contracts in restraint of marriage

ASSIGNMENT OF CONTRACT

Generally a person may transfer his or her rights under a contract but may not assign his or her obligations without the consent of the other party to the contract.

A contract may allow or restrict the assignment of rights under the contract. It is not illegal to do so.

To assign rights under the contract:

1.must be in writing

2.the assignees must give the debtor written notice of the assignment otherwise payment to the original creditor by the debtor would be valid

3.the assignment must not increase the debtor's burden or diminish his or her rights and remedies.

4.the assignee acquires the same rights subject to the same defences as the original creditor had.
Assignment of obligations: Can be done with the consent of the other party. Original party remains liable unless specifically released by writing. ie. assignment of lease.

Assignment of Accounts Receivable: billing less monies received represent accounts receivable. Used for security to the bank.

Assignment in Bankruptcy.

LIMITATION OF ACTIONS

Statutory limitation with respect to the time in which action might be taken. Exists in all law suits., ie. negligence, highway traffic law

Six year for simple contract from when the debt arose or it begins to run when entitled to bring action but may change with part payment, written promise to pay or even a written acknowledgment of the debt to start new limitation period. NOW IN ONTARIO -- TWO YEARS

BREACH OF CONTRACT

may be minor or a fundamental condition or may be a breach of the contract as a whole. The remedy available for a breach may depend upon the nature of the default.

If there is a complete breach then the other party is discharged from the contract and may make a claim for damages.

If the contract has been substantially completed and there is a breach of a minor nature then the other party will not be discharged but will be entitled to damages.

Could be liquidated damages where the parties have agreed to the amount of damages if there is a breach. This must not be a penalty provision.

Mitigation: The party who has suffered the loss must take reasonable steps to avoid any unnecessary loss.

Specific Performance: When damages would not be an adequate remedy, specific performance will be enforced if the court can compel the defaulting party to perform the contract. No personal service or if property has disappeared. However, the remedy for breach of contract for the sale of goods is usually money damages. ie. personal services
Injunction: force a person to do something or not continue to do something.

DISCHARGE OF CONTRACT

Discharge by performance.
Discharge by mutual agreement.
Discharge by impossibility of performance:
1. lose licence
2. fire, earthquake
3. incapacity relating to personal service
4. change in law ie. war materials

PARTIES
OBJECT
CONSENSUS
ABILITY
MISTAKE
INTENTION
CONDITIONS SUBSEQUENT AND PRECEDENT
LIMITATIONS ON CONTRACTS: matrimonial homes cannot be dealt with except in accordance with the Family Law Act

Problems with verbal vs. written contracts:
memory fault
proof

Contracts are not necessarily important for the people who are entering into them. They become important when there is a breach of the agreement or people who want out of the agreement.

Option agreement

Interpretation Rules: Contra Preferendum

Conditions, Representations, warranties, guarantees: difference and effect

Tendering

Exculpatory provisions which release a party from liability

Concept of an Offer to Purchase and Offer to Lease

Consesus Ad idem

Collateral Contracts

A PROMISE IS A PROMISE

After I had finished the 32nd and last year of full time - part time teaching I had indicated that I would be willing to start posting my lecture notes on the internet. It is a somewhat burdensome task and one that required serious consideration. However..... after giving the matter full consideration I am prepared to put the blog to work.

I have no idea if this is going to be of any value -- I suppose if I had the desire I could just wordsmith all the lecture notes and create a text. Not going to happen!

So here it is -- the first set of notes relate to a lecture on Contracts that took place in 1991 - and still applicable. At least once a week I will find another "non-scripted set of notes" - many of them taken from student note service and given just a very cursory glance with respect to spelling, grammar and syntax.

If they are of any help -- great. I will watch the blog counter to determine whether I am simply talking to myself -- which is not unusual.

be well
allan

Time

Tick Tock, Tick Tock

I once had the opportunity of experiencing a hearing involving an Estate that took about 4 years to resolve. The hearing would start, go on for a couple of days and then be delayed because of adjournments, motions, etc. etc. By the time it came to final submissions I had approximatley six boxes of documents that had been collected and/or referred to as exhibits. It did not help that the individual on the other side of the matter was a retired judge and he had very little at stake in terms of the costs of the hearing.

At the end of the hearing, the other individual went through all of the documents and summed up his position. When my time came I stood up, straightened out my barrister’s robes, tighted my “power belt” (I had suffered another injury to my back and besides chiropractic care, I had been prescribed the use of the power belt – every time I stood up it looked as though I was tightening a gun belt!), looked at the massive amount of documents spread over the counsel table and then had an epithany. I decided to ignore the documents.

I began by indicating to His Honour that we are all born with really only one thing in common. We might have different colour hair (or none at all), be of different colour tones, have different colour eyes, different sizes, weights, genders but we all have one thing in common – we all, each one of us, has only 24 hours in a day, and no one should be able to take that away from us. We had just spent days, weeks, months and years involved in a matter that could have been resolved in two to three days and it was unconsionable that the entire court system was being held hostage to deal with a matter that involved so little but cost so much. Not only was the Judge interested in the summation, but I actually guarnered the attention of the elderly clerks who assist in the proceedings but are gnerally bored to tears. At the end of the day, I was personally fulfilled, the retired judge was upset and the court exercised its discretion in recognizing that the matter had been dragged on for far too long.

The moral of the story is simple. Guard your time and use it wisely. And like any other asset or investment make sure that you control it and it is not wasted foolishly in the hands of others.

elfs

My 2009 blog postings seem to appear and then disappear -- must be an "X File".