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Commercial bribery It seems likely, but is not yet certain, that further grounds will be recognised in future, in circumstances where a party's consent to a contract has been improperly obtained.
A misrepresentation is a false statement of past or present fact, not law or opinion, made by one party to another, before or at the time of the contract, concerning some matter or circumstance relating to it.
Misrepresentations are classified as being fraudulent, negligent or innocent. Misrepresentations must be distinguished from: Warranties and contractual terms Opinionspredictions and statements of law Puffery general laudation or simplex commendatio Dicta et promissa or material statements by the seller to the buyer during negotiations, bear on the quality of the thing sold, but go beyond puffery, and give rise to the aedilitian remedies the actio redhibitoria and the actio quanti minoris if proven unfounded.
Misrepresentation and mistake are distinct legal concepts in the law of contract; they also give rise to distinct remedies.
Mistake presupposes an absence of consensus and renders the contract void ab initio, whereas a contract induced by a misrepresentation is valid but voidable.
Irrespective of whether the misrepresentation writing a respondent factum est made fraudulently, negligently or innocently, a party is entitled to restitutio in integrum if the misrepresentation Was made by the other party Was made with the intention of inducing a contract In fact induced the contract Was material There are two recognised types of contract-inducing fraud, namely dolus dans locum in contractui and dolus incidens in contractum.
If, but for the fraud, the contract would not have been concluded at all, it is dolus dans; if there would still have been a contract, but on different terms, it is dolus incidens. Whether the contract is set aside or upheld, the represent may claim damages for any financial loss that he has suffered as a result of the misrepresentation.
It makes a difference, though, whether the misrepresentation was made fraudulently, negligently or innocently. Since Ancient Roman times, it has been recognised that fraud is a delict, and that fraudulent misrepresentation accordingly gives rise to a claim for delictual damages.
Only very recently was it decided that the same applies to a negligent misrepresentation. These damages, being delictual in character, are measured according to the plaintiff's negative interest and include compensation for consequential losses.
In the case of an innocent misrepresentation, there can be no claim for delictual damages, since the misrepresentation was made without fault; nor a claim for contractual damages, since there is no breach of contract—unless, that is, the representation was warranted to be true.
Where the innocent misrepresentation amounts to a dictum et promissum, however, the purchaser may claim a reduction of the price under the actio quanti minoris: A misrepresentation may be made by words or conduct or even silence.
This last occurs when a party fails to disclose a material fact in circumstances where there is a legal duty to do so. In the past, the law recognised such a duty to speak in only a limited number of exceptional cases—where, for example, there is a special relationship of trust and confidence between the parties, as in the case of partners, or where a statute obliges a person to disclose certain information.
Today, however, a general principle is emerging that requires a party to speak when the information in question is within his exclusive knowledge, and is of such a nature that the other party's right to have the information communicated would be mutually recognised by honest persons in the circumstances.
A failure to speak in such circumstances entitles the other party to the same remedies as in the case of a positive misrepresentation. Duress or metus is improper pressure that amounts to intimidation. It involves coercion of the will: A party is forced to choose between entering into a contract and suffering some harm.
A party who consents to a contract under such circumstances does so out of fear inspired by an illegitimate threat. The consent is real but improperly obtained.
The contract, therefore, is valid, but it may be set aside at the election of the threatened party, provided that certain requirements are met. There is some uncertainty about what these requirements are. It is established that the threat must be unlawful or contra bonos moresand must have induced the contract.
According to some authorities, the induced party must have a reasonable fear of some imminent or inevitable harm to him- or herself, or to his property or immediate family.
In the case of a threat directed at property duress of goodsthe courts have required an unequivocal protest at the time of entry into the transaction. In addition to rescission and restitution, the threatened party may recover damages in delict for any loss caused through entry into the contract.
Undue influence is also a form of improper pressure brought to bear upon a person to induce a contract, but the pressure is more subtle, involving as it does, without any threat of harm, an undermining of the will of the other party.
The pressure usually emanates from a close or fiduciary relationship in which one party abuses a superior position to influence the other. To set aside a contract on the ground of undue influence, the party so affected must establish that the other party obtained an influence over him, that this influence weakened his powers of resistance and rendered his will compliant, and that the other party used this influence in an unscrupulous manner to induce an agreement that he would not have concluded with normal freedom of will.
Some authority also requires prejudice, but this is disputed. Unconscionable exploitation of another's emergency is akin to undue influence: Both have been described as abuse of circumstances, and both render the contract voidable.
In suitable cases, delictual damages may also be claimed. Commercial bribery is now recognised as a further distinct ground for rescinding a contract. Requirements for contractual validity[ edit ] Contractual capacity[ edit ] Intoxicated people lack contractual capacity.
All persons, whether natural or juristic, have passive legal capacity and can therefore bear rights and duties, but not all have contractual capacity, which enables persons to conclude the contracts by which those rights and duties are conferred.
Natural persons can be divided into three groups: All natural persons, as a general rule, have full contractual capacity.
Persons without any contractual capacity, such as infants, and some mental health care users and intoxicated persons, must be represented by their guardians or administrators.This page lists English translations of notable Latin phrases, such as veni vidi vici and et ashio-midori.com of the phrases are themselves translations of Greek phrases, as Greek rhetoric and literature reached its peak centuries before the rise of ancient Rome..
This list covers the letter ashio-midori.com List of Latin phrases . אֵין־כָּמוֹךָ בָאֱלֹהִים * אֲדֹנָי * וְאֵין כְּמַעֲשֶׂיךָ: Non est similis tui in diis, domine, et non est secundum opera tua, Ps.: There is none like you among the gods, O Lord, nor are there any works like yours (Ps.
). Resources The Wilson Moot is committed to the education of law students on written and oral advocacy. This resources page has been created with this in mind.
respondent factum: 1st Place Respondent Factum () 2nd place “Writing up the Facts and Winning Big: Some Secrets of the Best Writers of Legal Submissions,” Federal Court of.
Did the Respondent’s decision infringe the Appellants’ rights under section 15 of the Charter?
The Respondent’s decision was not discriminatory, as it did not perpetuate arbitrary disadvantage. Further, as a decision with ameliorative goals, it .
[Page 10; page 11 is blank. This page is to be numbered page 1 in your factum.] 1.
PART I – STATEMENT OF FACTS 1. The respondent, John Doe, accepts the findings of fact made by the trial judge.
2. The respondent, John Doe, also accepts the statement of facts set out in the appellant's factum. PART II – ISSUES ON APPEAL 3. The Respondent was charged with making child pornography, distribution of child pornography, possession of child pornography and accessing child pornography, contrary to sections (2), (3), (4), and (5) of the Criminal Code.