Contract Breaches and Remedies Session 7 Build a contract Breaches & Remedies

Build A Contract Contents of Contract Parties Date Terms Signatures, Witnesses, Seals

Build A Contract Harry Jones wants to hire Smith Concrete which is operated by John Smith to build a garage pad. Smith quoted a price of $6,500 for the garage pad including all materials, labour and equipment. Smith excluded cleanup Smith wants payment 5 days after completion Break into groups and draft a contract. Make sure that you include all clauses that you think are needed (don’t worry about the detail – get the intent down)

Origins of Disputes Breach of Contract Tort Issues – Breach of “Duty” Statutory – Competition Act

Nature of a breach Major – going to basic value of contract to one party Minor – insufficient to cause void of contract

Results of Breach Fundamental Breach - Contract voidable by offended party Breach of Warranty - Damages

Intent of damages The idea of damages is to compensate with money for a non-monetary problem

Other remedies Specific Performance

Where to go to get satisfaction Courts Alternative Dispute Resolution

Alternative Mechanism Litigation Alternative Dispute Resolution

Court Action – litigation Provincial Court Civil Claim Dispute Note Pre-trial Hearing / Compulsory Arbitration Trial Judgment Enforcement through Court of Queen’s Bench

Court Action - Litigation Court of Queen’s Bench Statement of Claim Statement of Defence Affidavit of Records Examinations for Discovery Trial Judgment Enforcement

Alternative Mechanisms Negotiation Mediation Arbitration

Negotiation Principled vs. Positional Negotiation Getting to Yes Don’t Bargain over positions Separate the people from the problem Focus on interests not positions Invent options for mutual gain Insist on using objective criteria

Mediation Impartial Mediator – skill of mediator often overlooked No decision unless by parties Counsel there only as an advisor – parties do most of the work

Arbitration Arbitration Agreement Private Court Sets the rules Establishes the questions to be asked Defines all the details: transcripts, costs, appeals Private Court Parties pick the judge – the arbitrator Arbitration Act – gives judgment the weight of a decision of the Court of Queen’s Bench Quicker and cheaper than trial Less formal than trial

Best Way Depends on nature of dispute If question is primarily one of law – court If fact-based and special knowledge needed – arbitration If parties are still talking – negotiation or mediation