THE CONTRACT (droit anglais)

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CLASS 1 - INTRODUCTION

 

1. GENERAL PRINCIPLES AND OVERVIEW

 

The course is about Contracts, and contractual obligations incurred from them.

Contract breaches, or a failure to upheld your obligations of the contract, are subject to legal action. A good indicator of whether a contract is formed or not can thus be inferred from whether or not a legal action could result from the failure of one party to upkeep its perceived obligations. For example, a teacher changing the syllabus would not be liable to lawsuit; thus, it's not a contract. But buying a coffee is.

 

DEFINITION OF A CONTRACT

Contracts are nebulous to define, but are generally understood to be:

An agreement, to do something. 

An agreement for a service.

An agreement to exchange money for a good.

Payment is not necessary. The focus is rather on promises of both parties.

 

 

REQUIREMENT FOR TERMS OF A CONTRACT

Although contracts can be interpreted as almost any monetary exchange for goods or services, the terms of an agreement are often required so that compensation can be obtained if one party fails in its responsibilities. Without such specifications, it becomes almost impossible to seek reparations; for example, \"we agree to sell/purchase a car for a fair price\" is too vague for any decision to be reached at a later date.

That being said, many contracts of a very vague nature are still, in the end, contracts - but their suitability for legal action is doubtful, and in this sense will never be \"actualized\" as contracts.

 

 

REQUIREMENT FOR MATERIAL EXISTENCE

Contracts generally require some kind of material existence in order to have legal validity. Without this, it becomes impossible to constitute what the contract was about. Handshakes, therefore, stand on tenuous ground in the eyes of the law.

 

THE COMMODIFICATION OF THE SUBJECT OF THE CONTRACT

Contracts commodify that which is their subject. This is necessary so that the terms are clearly understood and for breaches to be identified so that the contract as a whole can be enforced.

This may be the reason why people generally avoid contracts in their interpersonal relationships, from friendships to marriages, because we are not inclined to commodify our relationships with others. This results in the unusual situation where those agreements that are of fundamental importance to our lives are not, in the eyes of the law, contracts.

 

IMPORTANCE OF CONTRACT LAW IN SOCIETY

Contracts are crucial to the regulation of the affairs of civilization, and consequently its well-being.

Much of subsequent law courses (family, tax, company, etc.) are almost entirely dependent on contract law, and simply supplement the basics with particulars relevant to the domain in question.

Contract law is not limited to the private sphere alone - at least insofar as its influence over other types of law is concerned. For example, International Law, which is Public Law, borrows heavily from contract law in the creation and application of treaties.

Contracts' economic importance is fundamental, as they provide a way of structuring and regulating economic relations that require coordination and guarantees of enforcement if they are to have any meaning. This is crucial to the capitalist system of free trade; indeed, it is almost implied in the definition, and is central to the idea of credit. 

Can it be said that contracts are fundamental to liberal democracies, then...?

Morally, contracts reflect our basic values of honor, the value of promises, and of one's word. We believe that promises are to be kept even if breaking them has no harm to another, which is nevertheless seen as a dishonorable or immoral thing to do. This also exists in law; there may not be any compensation provided to either party, but a contract can be dishonored all the same.

And finally, contract law is not limited to corporate law. That's only one facet of it.

 

3. COURSE EVALUATION CRITERIA

HYPOTHETICAL FACT PATTERN QUESTIONS (aka the dreaded law school exam approach)

A legal situation will be provided, and students are asked to recognize legal issues and discuss them.

Such questions typically provide a set of issues that are easy to spot and resolve, but nestled in all this are more subtle points that are harder to spot and that prompt discussions of complex legal issues. It is in exploiting this gray zone, demonstrating your nuanced grasp of the subtle details of the law, and creating original or unexpected linkages and arguments, that the successful answer will be found. 

For Smith, that is the essence of law - reasoning as broad and deep and encompassing as possible, but necessarily constrained by the material, structural, or conceptual limitations of the law itself.

 

4. TYPICAL PROBLEMS TO KEEP IN MIND

POSITIVE AND NORMATIVE LAW

There exists a distinction between what the law is and what it ought to be. Every so often, this becomes very apparent in legislation, and a law seems to be terribly mistaken. This is a part of the adaptability of law, as judges will make judgements based on what they see as the greater social need; in such instances, they will find creative ways to overturn or distinguish cases that they feel are not aligned with the normative concept of the law.

 

WHAT JUDGES SAY v WHAT THEY DO

There will sometimes be a discrepancy between what judges say, and what they do. The law may be clear, and the facts clearly pointing to an interpretation of the law in a certain way, but judges will seek to produce a different outcome. This is usually done by manipulating the facts of a case such that the favored ruling is the outcome. 

 

CIVIL LAW v COMMON LAW

Learning two different systems of law simultaneously is not easy or straightforward. However, in practice, only one system of law can apply to any given case. Therefore, on exams it will be necessary to stick with the system of law that applies to the case in question. Sometimes this will be provided as information in the question, and other times it will need to be inferred from the description of the case (ie a criminal trial case must be in the common law system, at least in Canada). 

 

SEPTEMBER 15 - Class 3 - HAWKINS V. MCGEE (The Hairy Hand Case) - CONTRACT OR TORT?

 

BACKGROUND

Hawkins sued McGee for a skin graft gone wrong. Hawkins had an electrical burn on his hand, and McGee performed a skin graft, taking skin from Hawkins' chest to repair the skin on his palm. The result of the operation was that hair began to grow on Hawkins hand.

The first trial was by jury, and judgement was for the plaintiff. An appeal was made, and the appeal court did find that, although there was nothing wrong with judgement for the plaintiff, the damages awarded were excessive.

Essentially, it seems that the first court had awarded Hawkins damages of a tort claim, whereas the appeal court found that only contract damages were justified.

 

AS A CONTRACTS CASE

PRESENCE OF A CONTRACT

The operative factors in the presence of a contract are (1) Did McGee make a promise? (2) was McGee's intent to be legally bound, or not?

McGee had repeatedly solicited Hawkins to undergo this operation, ITO experiment on skin-grafting (a procedure with which he had little previous experience).

Two types of statements were made by McGee. The first was that he made general predictions about how long recovery would take or what the outcome of the surgery would be. The second was that McGee \"guaranteed\" to make the hand \"100%\", and this, along with the solicitation was taken to establish a contract.

 

 

DAMAGES AWARDED

As a Contracts case, if the promise had been performed then Hawkins would have had a perfect hand. Therefore, under Contracts, the damages Hawkins was entitled to was the difference between a perfect hand and the hand that he currently had.

Hawkins was not entitled to any pain and suffering damages, since these are construed to be part and parcel of the contract that he entered into with the surgeon to produce a perfect hand.

 

AS A TORT CASE

THE WRONG

To be argued as a Tort case, it is necessary to establish a Wrong.

One possibility is that McGee can be held for having wronged Hawkins by mis-representing the truth. If that mis-representation was intentional, then it is fraud; if it was unintentional, it is negligence. Either way, McGee was careless in his words, leading to a harm or injury to Hawkins.

However, neither court found this case to be a Tort case. Yet the Judge awarded Tort-based damages (ie pain and suffering), which is the portion of the ruling that the appeal court overturned.

 

THE HARM or INJURY

What is the harm, injury, or loss that is attributable to the Wrong? To argue this case as a Tort case, it would be necessary to show that McGee's mis-representation of the truth (ie to give a 100% hand) caused Hawkins an injury. 

If McGee had told Hawkins the truth, then Hawkins would 1) not have gone through the pain and suffering; 2) have had a burned hand instead of a hairy hand.

It is also necessary to consider what Hawkins would have done if he had known that McGee was poorly experienced in this field of surgery, and would have therefore elected to have gone to another surgeon with a higher chance of success. If, for example, the odds of having an excellent hand is very high in most of these kinds of cases, and it was only McGee's incompetence that botched this particular surgery, then Hawkins might be awarded damages based on the difference between a burned hand and a perfect hand - not just a hairy one - as well as the pain and suffering induced by McGee's Wrong.

As a torts case, the injury was the difference between a burned hand or a hairy hand including pain and suffering if the argument is limited to McGee's abilities, or between a burned hand and a perfect hand including pain and suffering if one can prove that most surgeons could produce a perfect hand.

 

DIFFERENCES BETWEEN TORT AND CONTRACT