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 –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