As a civil litigator, I frequently encounter individuals whosue over “oral contracts.” Today I’d like to explore this topic.
Are oral contracts binding?
In the absence of statutory requirements (for example, domestic contracts), a contract is valid as long as it meets the common law requisites, such as offer, acceptance, consideration, capacity, and intention. Therefore, an oral agreement that meets the common law criteria is enforceable.
On the other hand, if any of these elements are missing, the transaction in question -regardless of whether it’s in writing or not – will not be considered as a contract and is not legally binding.
If you have an oral contract that is otherwise valid, how do you prove and enforce it?
In most commercial transactions, you may prove the contract in one of the following ways:
- Standard commercial practices: If the parties have dealt with each other before, you may be able to infer the terms from the prior transactions.
- Prior correspondences: Many commercial ventures involve prior correspondence and negotiation. If you have letters or emails concerning the transaction in question, you may be able to demonstrate the intention of the parties when the contract was entered into.
- Commercial reasonableness: In many industries, there are established practices that most transactions follow. For example, if you go to a restaurant, it’s generally assumed that you’ll pay for the bill, even if you didn’t explicitly agree to it before ordering your meal.
Although there are ways to prove an oral contract, I recommend that you have your contracts in writing to avoid the hassle of proving an oral contract, should the deal go sour.
It’s getting cold!
Much to my resentment, we Toronto residents are expecting our first snowfall of the season sometime this week. Today I’d like to talk about the most common winter-specific causes of lawsuits in Canada.
For property owners:
Pedestrian slip and fall may be the biggest hazard, especially during late fall and early spring when the temperature hovers around the freezing mark. Be sure to shovel sidewalks around your property and de-ice when necessary.
For car owners:
Bad weather and poor road conditions contribute significantly to car crashes. Be sure to switch to winter tires for a better grip. Car owners driving in rural areas should also consider replacing headlights for greater visibility.
For private party hosts:
People attend parties and functions during the holiday season. As a host, you should monitor your guests’ alcohol consumption and refuse to serve those who appear intoxicated. Drunken guests must never be allowed to drive.
There may be a higher standard of care for commercial establishments, such as pubs and bars.
For night clubs:
Employees should be diligent about overcrowding, particularly on New Year’s Eve. The bouncer should always check party-goers’ IDs to prevent minors from entering the premises. Failure to meet the liquor licence requirements may result in suspension or revocation of the licence.
The list above is by no means exhaustive. The liability will vary depending on the circumstances. If you have a suggestion to add to the list, please email me by clicking here.
If you have unfortunately fallen victim to one of these hazards, call me at 416-433-5531. I may be able to help
Tagged accidents, bars, car crash, civil suits, drunk driver, drunk driving, holidays, lawsuits, night clubs, party, pubs, slip and fall, social, tort, winter
Most people think Legal Aid Ontario (LAO) is “free,” in the sense that clients with Legal Aid Certificates do not pay the legal fees out of their own pockets.
However, there are several exceptions to this rule. LAO routinely recovers costs and contributions from clients with contribution agreements, property liens, and settlement funds.
For clients whose income is higher than the financial eligibility, LAO from time to time issues Certificates with contribution agreements. The lawyer accepting the certificate will perform the services at the prescribed rate and collect money from LAO. At the same time, the client agrees to pay back part or all of the lawyer’s bill through a payment plan. This is a win-win situation in the sense that LAO can recover the cost and be accountable for the taxpayers’ money, while the clients are able to proceed with their matters expediently.
If a client meets the financial eligibility requirement on his or her income but owns real property, LAO may require the client to agree to a lien on the property. This lien is authorized by the statute. The client may remove the lien by paying back the amount owing to LAO, or LAO may recover the amount throughthe lien when the property is sold or transferred.
With respect to settlement funds by law LAO is entitled to recover part or all of the cost if the matter is settled and the client receives settlement funds. Hence, most settlement funds are paid to the lawyer handling the case in trust.
In some cases LAO may consider a waiver to recovery. These cases are rare. Generally, LAO will only waive the statutory charges against the client if failure to do so will cause hardship. As such, clients with a contribution agreement or a property lien are generally not qualified.
Unlike criminal proceedings, where the accused persons are compelled to attend court, courts hearing civil matters generally don’t have the power to compel defendants to appear unless the defendants are given proper notice. This proper notice is called the “originating process.”
Under both the Rules of Civil Procedure and the Family Law Rules, the originating process requires that the defendants (or respondents in family law proceedings) be served with court documents personally.
For corporate defendants, generally you can leave the documents at any place of business of the corporation with a person who appears to be in charge.
For individuals, you need to find the individual and give the documents to him or her. If you can’t find the individual, you will have to use alternative methods as prescribed under the applicable Rules.
Most law firms hire process servers to satisfy these requirements.
What about individuals who know about the lawsuit and are evading service?
Both the Rules of Civil Procedure and the Family Law Rules provide that if you can show evidence that the individual defendant is evading service, you may bring a motion for substituted service. However, to obtain permission from the court for substituted service, you must show that the method you are proposing can reasonably be expected to bring the documents to the person’s attention.
I had the privilege to be a sponsor of the “New Business Movement,” an entrepreneurship conference held by Youth Employment Services. I am pleased to announce that the conference was a major success.
More than 150 young entrepreneurs attended the conference and participated in four very informative workshops on business planning, entrepreneurship, and sales and marketing. I was very fortunate to meet interesting individuals, ranging from start-up company operators to seasoned industry consultants, and to learn about their businesses.
In particular, I met Ella Nunes, owner of Ella’s Botanicals, a company that sells home-made skin-care products made from all-natural ingredients. Ella has graciously agreed to be the official holiday gift vendor 2008 for PSWLAW.
I also met David Cohen, host of a radio show “Small Business, Big Ideas Show,” heard Sundays at 9 am on 107.7 FM and 1580 CKDO. The show can also be heard online at www.ckdo.ca.
David invited me to talk about legal issues for small business on his show on December 7, 2008, and I gladly accepted. Stay tuned (literally) for more information on this.
However, I could not have attended the conference without my dedicated team. I wish to thank Chris Postill from CandorMedia for the design and production for the brochures, and our website editor Martin Townsend for editing the contents. I also thank my spouse for supporting me all the way. Thank you.
http://www.yes.on.ca
PSWLAW Official Holiday Gift Vendor 2008 http://ellasbotanicals.com/
http://www.smallbusinessbigideas.com
www.candormedia.com
