1
Q
5 required elements of a contract
A
- offer and acceptance
- mutual intent
- consideration - value exchange
- capacity
- lawful purpose
2
Q
what is the purpose of contract law?
A
to regulation formation of an agreement between parties and the enforcement of their legal promises
3
Q
Gratuitious promise
A
A promise made without consideration
4
Q
Equitable estoppel
A
- if Party #1 takes action to change terms (ex. payment)
- and Party #2 accepts actions, without changing written contract, #2 has led #1 to believe that the contract is modified
- Party #2 is estopped - they cannot insist on reverting to original terms
- the equitable outcome is to continue with the modified terms
5
Q
2 types of misrepresentation
A
- fraudulent - deceived party can cancel contract, claim compensation for reasonable costs and sue for damages
- innocent - deceived party may cancel contract, can only claim for direct costs (ex. cost to remedy errors in specifications)
6
Q
Contra Proferentum
A
If a contract is worded ambiguously, it is usually interpreted against the party which was most ambiguous
7
Q
Parol Evidence
A
Evidence outside the contract or extrinsic. Terms are agreed but not documented in written contract (cannot enforce so write it in contract)
8
Q
Fiduciary duty
A
- Heightened duty to care for the interest of a party in priority to one’s own interest
- Duty not to act against the interest of the other party
- Obligation in circumstances involving relationship of ‘trust’ with a ‘beneficiary’ of the duty of care
9
Q
Contract breach
A
Failure to perform an ESSENTIAL requirement. Substantial completion and warranties do not count as contract breach
10
Q
Remedies for contract breach
A
- damages (direct and indirect)
- Duty to mitigate
- Court actions (specific performance or injunction)
11
Q
What is the goal of the Canadian Environmental Protection Act (CEPA 1999)?
A
To prevent pollution, protect environment and human health. Placing obligation on corporate officers to take ‘reasonable measures’ to ensure compliance
12
Q
What is the purpose of the Environmental Assessment Act (2012)?
A
Requirements for major projects under federal jurisdiction
13
Q
What is the purpose of the Environmental Enforcement Act (EEA 2010)?
A
Consolidates enforcement regimes for protection of flora, fauna, particular geographic areas and enforces CEPA
14
Q
What is a crisis?
A
Anything that negatively impacts/affects people or the environment, and which is outside their personal ability and accountability to correct
15
Q
7 steps of crisis management framework
A
- apply past process
- appoint senior leaders
- look for early warnings
- understand the problem
- assess the damage
- resolve crisis
- move forward
16
Q
3 themes of Earth Charter
A
- ecological integrity
- social and economic justice
- democracy, nonviolence and peace
17
Q
What should a contract owner do if all bids are non-compliant?
A
redefine scope and start again (don’t negotiate)
18
Q
What is a tender?
A
An offer to contract
19
Q
In contract law, when is communication deemed to occur?
A
when communication received
unless parties agree on mail
20
Q
What is an options contact in contract law?
A
holder pays a premium for first right of refusal for a contract, for a defined time
21
Q
What is a letter of intent?
A
Expression of interest in proceeding with transaction, subject to further agreement
not a contract, but if very detailed could be deemed an offer
22
Q
When will a court intervene in a contract agreement?
A
If made under duress, fraud, undue influence
23
Q
What is required for legal capacity?
A
age of majority
competent (mentally sound, not wasted)
corporate power (corporations bounds by acts of its officials)
24
Q
When is a corporation bound by the acts of its officials?
A
- acts are withing scope of officials role
- other party has done due diligence on the official
- no prohibitions
25
What must be done to avoid fraud?
employ the services of a qualified lawyer to do ‘due
| diligence’ and discover any outstanding claims or fraud
26
What is duress?
intimidation, threats, coercion, unreasonably forcing to pay (economic duress)
27
What are the two types of mistakes?
common mistake
| unilateral mistake
28
What is a unilateral mistake?
- party 1 makes error
- party 2 insists on following contract
- party 1 may sue or do poor quality work
*party 2 cannot knowingly take advantage of 1. If 2 knows of mistake, contract is void.
29
What is a common mistake?
contract provisions not documented correctly.
30
What can a party do to deal with a common mistake?
Apply to court for order of rectification
31
What are the two ways of interpreting a contract?
strict: precise wording, true construction
liberal: intent
32
How are contracts generally interpreted?
What is the exception?
to most reasonable meaning
exception: if contract unconscionable to begin with
33
What does 'reasonably implied' mean?
Terms that do not have to be specified in writing
e.g. don't break any laws
34
T/F: contracts imply a fiduciary responsibility
F: Not necessarily, since relationships are created by mutual intent
35
When are exemptions invalid?
- misconduct occurs
- contract breached
- clauses unreasonable
36
What is an exemption clause?
Exempts a party from a certain liability
37
What are the reasons for contract discharge?
- performance completed
- express terms
- agreement
- frustration
- force majeur
38
What is an express term?
condition under which a contract may be terminated
39
force majeure
A clause that frees the parties from obligation for events outside of control (war, riot)
Does not cover predictable complications (labor disputes, acts of nature)
40
What is frustration?
Change in circumstances beyond control of parties AND unforeseeable
e.g. government work stoppage, facility destroyed
41
warranty
not a vital obligation, equivalent to a guarantee
in consumer law: a promise made by manufacturer about a product
42
What is repudiation?
Party refused to perform essential requirement
43
In case of repudiation, what can the non-defaulting party do?
- insists on fulfillment (or other remedy)
- discharge contract
- ignore (agree to changing contract)
44
quantum meruit
contractor may be paid 'as much as is reasonable deserved' for time and materials
45
What are the two types of damages?
‘Direct’ damage: defaulting party must remedy the failure to perform
‘Indirect damage’: non-defaulting pty. may recoup other loss; economic
46
What are the actions a court can take in case of contract breach?
specific performance: oblige party to do something
injunction: order party to stop doing something
47
What are some PEO guidelines related to environment?
solid waste management
drinking water systems
site assessment, remediation and management
48
What is ISO14001
standard for environmental management
49
What is the foundation of ISO14001?
- understand organization
- determine issues, compliance, activities, products & services
- consider authority to exercise control
50
What does paragraph 5.1 of ISO 14001 discuss?
leadership and commitment
51
According to ISO 14001, how should management demonstrate leadership & commitment with respect to the environmental management system?
- take accountability for effectiveness
| - ensure that policy is compatible with strategy
52
What are the 4 categories of sustainable development practices promoted by Engineers Canada?
Include others
plan, analyze, manage
lead
follow rules, prevent harm
53
What are the 10 sustainable development practices promoted by Engineers Canada
1. maintain knowledge
2. multi-disciplinary teams
3. consider social impacts
4. design sustainability outcomes & indicators
5. assess economic cost/benefit
6. plan efficient solutions
7. discover innovations
8. lead/consult with employees & public
9. comply with legal requirements
10. manage risk
54
What are the 11 principles of climate adaption and mitigation promoted by Engineers Canada?
1. integrate adaption
2. integrate mitigation
3. review standards
4. professional judgement
5. interpret information
6. innovation in mitigation
7. use specialists
8. effective language
9. plan for service life
10. risk management
11. monitor liabilities
55
What step in the crisis management framework involves appointing the crisis team?
2. Appoint senior leaders
56
For crisis management, what type of events should you focus on?
high impact (even if low probability)
57
When resolving a crisis, what are better: moral decisions or legal decisions?
moral decisions
58
What was the focus of the 'silent spring' of 1962
pesticides and agricultural chemicals cause problems
59
What was the outcome of the 1972 UN stockholm environmental conference?
declaration of principles;
| have more prudent core environmental consequences
60
What was the outcome of the 1987 UN Brundtland report?
defined sustainability; development must no impair future generations
61
What was the outcome of the 1987 Montreal protocol?
remove CFCs (ozone layer issue)
62
What was the outcome of the 1992 Rio earth summet?
pledge to reduce greenhouse gas emissions
63
What was the outcome of the 1997 Kyoto protol?
pay credits to not reduce emissions
64
What was the outcome of the 2007 UN Bali road map?
total emissions increase ok if reduce emissions/joule
65
What is the IPCC?
UN intergovernmental panel on climate change (est. 1988)
66
What is the issue with cap & trade?
subject to fraud
67
What is the issue with subsidies to reduce emissions?
mostly benefit investors, not innovators
affect purchase timing but not overall
68
What is sustainability?
culturally consistent, non-competitive caring ideology
long term environmental, organization and social value
69
What are the requirements for sustainability?
institutions
law and order
education
ethical decision making
70
What are the main challenges for sustainability?
- negligence, corruption
- waste
- needs are culturally defined
- population growth
71
What are the 3 steps in the engineers role for sustainable business
1. operational optimization
2. organizational transformation
4. systems building
72
What are the 3 categories of sustainable development policies?
- human development
- institutional
- structural/physical
73
What are the different ways to integrate sustainability?
- strategic
- financial
- operations
74
What are the ways to 'make the case' for sustainable development?
1. integrate sustainability
2. entice customers
3. engage employees
4. reinforce supply chain
5. invest in community
6. maintain accountability
75
What are the 4 commitments of the earth charter?
1. respect earth and life
2. care for community
3. build democratic societies that are peaceful
4. secure earths bounty for future generations
76
Why is the earth charter no sustainable?
less focused on economics, law and order, self interest
77
What are the three themes of the earth charter?
1. ecological integrity
2. social & economic justice
3. democracy, nonviolence & peace
78
What are the 3 groups of indigenous in Canada?
first nations
metis
inuit
79
3 themes of Earth Charter
1. ecological integrity
2. social and economic justice
3. democracy, nonviolence and peace
80
What are the 3 groups of indigenous in Canada?
first nations
metis
inuit
81
Where can conflict arise from
- power struggles
- lack of trust, history of bad faith, lack of respect
- lack of info
- failure to execute instructions
82
when can conflict be useful
- bringing causes of problems to the surface
- developing alternatives and solutions
- generating a more creative product
- obliging others to clarify views
83
Strategies for conflict
- avoid
- accommodate
- compromise
- collaborate
- force
84
What is the issue with "rational tools" like scorecards?
obscures assumptions
85
What are the different types of power?
```
legitimate
information
referent
reward
coercive
expert
```
86
What is referent power?
charisma: attract others
87
What are the four components of working with others?
apply power
confirm interests
anticipate attitudes
engage others suitably
88
What is the framework for approaching conflict?
1. observation
2. feel
3. need
4. request
89
What are the four effective leadership attributes?
1. maturity
2. strategic awareness
3. executive presence
4. execution orientation
90
What is execution orientation?
Engage others to solve issues, innovate, & get things done
91
How to legal rules around diversity create tension?
don't deliver equality unless underpinned by social mechanisms
92
Why do dispersed multicultural teams have less conflict than co-located?
less gossip, differences less important
focus on task at hand
93
What are the pros and cons of political correctness
pro: avoid offending
cons
- stifle innovation
- reinforce bias
- create entitlement and divisions
94
What leads to higher satisfaction in culturally diverse teams?
motivation
95
What are the management techniques for diverse teams?
1. find similarities
2. avoid stereotypes
3. manage perspectives
4. solve problems
5. manage differences
96
What is the 3 step process to improve team performance?
1. understand differences
2. focus on common goals
3. deliver results
97
What is fraud?
wrongful or criminal deception intended to result in financial or personal gain
98
What is undue influence?
one party ‘dominates’ another, eg family situation
99
What is a vital obligation?
key clause that must be satisfied, and substantial performance is expected
100
What is unconscionable?
something a reasonable person would not do
101
What is professionalism?
A profession is a self-selected, self-disciplined group of individuals who hold themselves out to the public as possessing a special skill, derived from education and training and who are prepared to exercise that skill primarily in the interests of others
102
Types of licenses and experience required
1. Engineering license/Certificate of Authorization - need if offering services to the public
2. Temporary - issued on a project basis for max. 12 months
3. Provisional - 3 years experience outside of Canada, 1 year experience in Canada
4. Limited - 3 year degree/diploma and 8+ years of experience
103
Basic duties of Engineer (from PEO Practice Guideline)
- top priority is public health and safety
- legal considerations
- duty to inform
- protect oneself
- protect one's work
- good working conditions
- leadership
- quality management
- culture
- sustainability
104
what is sustainability?
meeting the needs of the present without compromising the future
105
what is an expert witness
- possess 'special knowledge' that the average person does not
- interprets technical info for ppl who do not have knowledge
- need to be impartial and neutral
106
what is a fact witness
they just come in to tell the facts, not provide comments or opinions
107
attributes of a consulting engineer
- min. 5 years professional experience, including 2 years of independent work
- technical competence
- business and leadership skills
108
what is tort law?
- compensates those injured by wrongdoing of others (usually involves negligence)
- private parties institute legal actions against each other
109
what is true construction?
- strict/precise wording in a contract
| - the contract is interpreted according to the most reasonable meaning
110
what does reasonably implied mean?
- terms do not have to be specified in writing
- contractors must deliver in compliance with standards and codes
- material and work is according to proper standard
- materials are 'fit for intended purpose'
- work is carried out in 'proper and workmanlike way'
- work is completed within a reasonable time, no undue delay
111
what is a contract?
an agreement between parties that can make the two parties agree to do something
112
5 types of contract discharge
1. performance completed
2. express term - condition under which a contract may be terminated
3. agreement - mutual consent
4. frustration - contract closed due to circumstances out of either parties' control
5. force majeure - clauses free parties from some obligations
113
when is a contract considered breach?
when a party fails to perform an ESSENTIAL requirement
114
types of IP and their timelines
1. trademark - 15 years, renewable
2. patent - 20 years
3. copyright - lifetime + 50 years
4. industrial design - 10 years
5. integrated circuit topography - 10 years
6. trade secrets
115
2 types of duty to warn
1. products - manufacturer is liable
| 2. workplace - employer is liable
116
5 types of liabilities
1. concurrent tortfeasors - more than one party is liable
2. vicarious liability - one party is liable for another
3. strict liability - proving fault is not necessary to prove liability
4. inevitable events - things outside of control
5. occupier duty of care - owed by occupier to guests
117
what is duty of care?
legal obligation to not cause harm. others are relying on our judgement
118
what is basic limitation period?
2 years since:
a) the claimant first new injury, loss or damage had occurred OR
b) a reasonable person ought to have known
119
what is the ultimate limitation period?
15 years
120
when is there no limitation period?
- family law support matters, debtors & creditors, sexual assault
- crown recovery of fines/taxes/penalties
- undiscovered environmental claims
121
when does the limitation period not run
- the claimant is incapable or a minor
| - if the defendant conceals injury, loss or damage, conceals act or failure to act or mislead claimant
122
when is a claim discovered?
the day an act or omission becomes known
| - wrongful conduct and resulting damages
Software Douchebags
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