Business Law: Lecture 1

⚖ Business Law Created @September 11, 2023 5:54 PM Class BUSI2601A Type Lecture Lecture 1 Question 1.1:. what are the advantages of democracy in contrast with authoritarian rule and vice versa? Philosophical and Societal Foundations of Canada's Legal System. Now, where does Canada fit? 👉🏼 Canada's legal system is the product of English and French traditions. Therefore, the expectation is the careful wording of legal documents and formal rules that are clearly expressed in a globalized economy. Culture and Philosophy Philosophy derives from Greek and means “love of wisdom?” We rarely think about philosophy consciously if at all yet we still often view the world through the sense of our philosophies without being fully aware that we redoing so. What are the philosophical foundations of Canada? Business law 1 You must first understand the history that goes behind this: Ancient roots: In the 5th century BC only adult males were able to vote Aristotle: Societies should be governed by the “rule of law” Plato rejected democracy in favor of a “philosopher king” because the mob killed his teacher Socrates. Brief History of Canada (Around the times of the 1700s) Canada's history was marked by the conquest of land from Indigenous Peoples by British and French colonial powers, leading to ongoing social tensions. The British conquered North America in 1760 during the Seven Years' War, creating British North America, including the original four Canadian provinces and 13 American colonies. The American colonies achieved independence in 1782-1783. Many loyalists fled to Canada, while the Quebec Act of 1774 guaranteed the French Civil Code and Catholicism in Quebec, influencing Canada's legal system significantly. Constitutions Most countries possess written constitutions that serve as the highest legal authority to which all other laws must adhere. However, the United Kingdom (Britain) stands as an exception with an unwritten constitution primarily founded on court precedents and political traditions. This approach reflects the belief that elected representatives of the people, known as the sovereignty or supremacy of Parliament, should not be overridden by any legal document. This system is rooted in the UK's common law tradition. Implications for legal systems France has a highly codified legal system with limited room for courts to deviate from the Code's parameters. Its constitutional ideals include "liberty, property, safety, and resistance against oppression," reflecting a degree of distrust in government, as well as "liberty, equality, fraternity." In England, there is some codification, particularly due to EU influence, but it heavily relies on the common law. The country has an unwritten constitution based on the rule of law and the sovereignty of Parliament. The USA exhibits Business law 2 a significant French influence in its legal system, with extensive codification of laws. It combines this with an active common law court system stemming from its British heritage. The rallying cry is "life, liberty, and the pursuit of happiness," emphasizing checks and balances to prevent government abuse and the right to bear arms in resistance to an oppressive government. There's considerable distrust of the government. Canada, in contrast to the USA and France, peacefully transitioned from monarchy and, aside from Quebec, closely resembles the British common law system. Its rallying cry in the BNA Act is "peace, order, and good government," reflecting more deference to the government. However, Canadian law also incorporates codified elements due to French influence. In 1982, Canada moved closer to the USA and France with the patriation of the Constitution and the adoption of the Charter of Rights and Freedoms, although it included a concession to the Supremacy of Parliament through the "notwithstanding clause." — What is the rule of law? The concept of the rule of law emphasizes that a society should be governed by laws rather than being subject to the arbitrary rule of a single individual, in contrast to the divine right of kings where the king was considered God's representative and made or interpreted laws. An example of this concept in action is the Watergate scandal during Richard Nixon's presidency. In ancient China, during the third century BC, there was an emphasis on rule by law, but not the rule of law, as the emperor was considered above the law. However, in the second century, the Han Dynasty proposed that even the emperor should be subject to natural laws, which were inherently known by virtue of being human or enlightened by a higher power. The ancient Greeks, particularly Aristotle, introduced the concept of the rule of law, emphasizing that laws should be supreme, except for Plato, who, like Confucianism, believed in benevolent rulers who were above the law. The justification for placing the law above the ruler comes from thinkers like Sir Thomas Aquinas, a Catholic philosopher who believed that humans could intuit natural law, and Catholicism could inform this intuition. Abu Rayhan al-Biruni had a similar approach, suggesting that Islam could play a role in informing this intuition. While both were influenced by Aristotle, Aristotle viewed natural laws as unrelated to religion. BUSI2601: {From philosophy to the Canadian legal framework} Business law 3 Lecture 2: British empiricism and continental rationalism: The two legal systems British and French have roots in different philosophical and cultural foundations. The British common law system is grounded in British Empiricism. The French civil law system is grounded in continental rationalism British Empiricism: this philosophy posits that all knowledge comes from our senses. Inductive reasoning is used to extrapolate from our experience to build complex ideas and theories; there are no valid “innate ideas”. Rationalism Vs. empiricism: What are the implications of philosophy for legal systems? If the mind can know truth without the senses, it can deduce from that base to craft a legal code of general application from innately known concepts of fairness. The British common law system: A unique approach Business law 4 Unlike any other legal system, the British common law system builds legal concepts of general application “from the ground up” In short, it employs the inductive reasoning of British empiricism to generate laws of general application. How does it work? An individual judge finds, say in a contract dispute, that Mary did not honor a contract, and must pay damages to John equal to the profits that John lost as a result of Mary’s contract breach. Ratio Decidendi After that, this becomes the ratio decided of the case and becomes a principle of law. It is the principle of law that is to be applied to cases in the future. A body of general legal principles is built up from these cases based on the ratio decidendi of individual decisions. Obiter Dicta In legal decisions, judges sometimes include statements that are noteworthy but not crucial to the main decision: For instance, if a person breaches a contract and the judge comments that if the person had financial means, it wouldn't be a valid defense, this statement is not essential to the overall decision, which is about awarding damages for the breach of contract. Such statements, known as obiter dicta, are not binding on lower courts. However, they can be persuasive and may influence future cases, where a lower court judge might adopt the idea that financial trouble is not a defense for breach of contract based on this commentary. How to distinguish a case? In legal practice, a lower court is not necessarily bound by the legal reasoning (ratio decidendi) of a higher court decision if there are significant differences between the cases. For example, if a new case involves a breach of contract by a 15-year-old, which is unlike the precedent that dealt with adult parties, the lower court may distinguish the precedent and reach a different decision, creating a new legal precedent that contracts with minors are not binding. However, if a case is similar enough to a previous decision from a higher court, the lower court is obligated to follow the higher court's decision under the principle of stare decisis, which means to "stand by things decided." Business law 5 How was the evolution of common law? The common law evolves incrementally with new court decisions whereby the resolution of individual real-life disputes informs the rules of general applicability through inductive reasoning. This contrasts with codified amendments to the code which then flow to the courts for further interpretation through deductive reasoning. The legal system in Canada: Constitution and character of rights Codification and Deductive Reasoning Employed The Constitution of Canada was originally a statute passed by the Parliament of the UK. The British North America (BNA) Act passed the third reading in the British House of Commons on March 8, received royal assent on March 29, and was proclaimed on July 1, 1867. Federalism: Refers to an allocation of power as between a central government and more local governments. Canada's evolution from a colony to a fully independent state was gradual. The Proclamation of the Constitution Act, of 1982, removed the last vestige of British authority over the Canadian Constitution. Distribution of powers: Section 9.1: Federal powers involve jurisdiction over, for example: criminal law, bankruptcy law, banking, the regulation of trade and commerce, patents, copyright, marriage, and divorce. Section 9.2: Provincial powers include jurisdiction over property and civil rights and matters of a merely local or private nature. Doctrine of Paramountcy: When there is concurrent jurisdiction and conflicting laws are passed by the federal government and one or more provincial governments, the federal law prevails. The character of rights and freedoms Section 2: Business law 6 Fundamental freedoms include freedom of conscience and religion, freedom of thought, belief, opinion, expression, peaceful assembly, and association. These obligations apply to governments, not the private sector. Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Everyone has the right to be secure against unreasonable search or seizure to the extent that there is an expectation of privacy. Everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right. Business law lecture 3: Dispute Resolution Legal disputes that may result in civil litigation (disputes involving money, property, or rights to property are often resolved within the civil (as distinguished from the criminal) court system.) examples: Jimmy punches Ajmal in the face causing dental work requirements that cost $10,000. A doctor amputated the wrong leg. An owner doesn't pay the last installment of $25,000 for renovations. Civil Litigation -Litigation is when you go to court -If you are a criminal that's criminal litigation -Yet if you are being charged that's civil litigation Civil litigation is also able to cover disputes between a business and the government in case of a contract dispute or alleged negligence. In this matter, the courts are asked to award compensation. Business law 7 If the government wants to find you, then that's not civil litigation, you are prosecuted. The courts ask to punish. Moving to criminal litigation, the worst offenses are criminal for which you are prosecuted. The focus of this program is on civil litigation because that often results from commercial disputes. Civil and criminal litigation: Civil: The party suing is the Plaintiff and the person sued is the Defendant. The Plaintiff must prove its case on a balance of probabilities. If the Plaintiff is successful, the Defendant is found liable. Criminal: The party prosecuting is the State and in Canada is called The Crown. The Crown must prove its case beyond a reasonable doubt. If successful, the Defendant or the Accused (either word can be used) is found guilty. Regulatory offences. Courts/ Ontario courts: The Federal Court Act created a court to handle disputes related to federal laws, established by the federal Parliament. These federal courts have jurisdiction nationwide. Additionally, each province, like Ontario, has its own court system governed by statutes such as the Courts of Justice Act. -In Ontario, for civil litigation, the primary courts are the Small Claims Court and Superior Court, both established under the Courts of Justice Act. Rules of civil procedure for these courts are regulated, and there are embedded links to Small Claims Court rules and forms. Litigation process to collect unsecured liabilities. The litigation process for collecting unsecured liabilities, specifically in civil cases rather than criminal proceedings, encompasses various stages. Whether the dispute arises from tort or contract, the process typically begins with the drafting of a Statement of Claim, rarely a Notice of Application. Subsequently, parties involved may file a Statement of Defense, followed by the exchange of an Affidavit of Documents. Business law 8 Interim motions may be made during the course of the litigation, addressing specific issues or disputes. Examinations for Discovery, akin to depositions in the United States, allow for the gathering of evidence and testimonies from involved parties. Finally, the matter culminates in a trial where the case is presented before a court for resolution. Civil litigation: What court? What country or province? It is often a good idea to sue in the place where the defendant lives or has assets or a business. If you were to choose to sue in Ontario you would need to choose the right court: For example: Claims of $35,000 should be in small claims court, its a good idea to consult a lawyer on this decision. What is rule 6? { Small claims court} (1) An action shall be commenced (a) in the territorial division. (i) in which the cause of action arose. (ii) in which the defendant or, if there are several defendants, in which any one of them resides or carries on business. (b) at the court’s place of sitting that is nearest to the place where the defendant or, if there are several defendants, where any one of them resides or carries on business. O. Reg. 78/06, s. 8 (1). (2) An action shall be tried in the place where it is commenced, but if the court is satisfied that the balance of convenience substantially favors holding the trial at another place than those described in subtle (1), the court may order that the action be tried at that other place. O. Reg. 78/06, s. 8 (1). Business law Lecture 4: Introduction To Contracts. Business law 9 What are the elements of a contract: The elements of a contract include clauses specifying parties' responsibilities, ranging from simple to complex action plans. They also allocate risks and outline how they should be managed (risk allocation clauses). Contracts detail how they will end (termination clauses) and often include mechanisms for resolving disputes. What are the contract requirements? To form a valid contract, there must be an offer and acceptance, representing a mutual agreement ("ad idem"). The contract must be complete, deliberate, and voluntary, involving competent parties without coercion or mental impairment. There should be mutual consideration, which can be an exchange of promises or value. A contract can involve individuals or legal entities like corporations. While written contracts are not necessary, oral agreements might be challenging to prove. Contract law is primarily based on common law, but relevant statutes such as the Ontario Consumer Protection Act and the Sale of Goods Act can apply, providing specific regulations, such as the 10-day cooling-off period for consumer purchases in Ontario. Contract creation requires effective communication: This all starts with negotiations, and being aware to not make commitments to start. Always avoid legal terms and focus on business goals. It's better to bring in a lawyer at first but if it's too expensive for you Business law 10