Commercial Law
Rule of Law - correct answer-- Rule of Law: even government only has as much power as is
set out in the law; cannot go beyond the scope of powers given to them by the law
- Law regulates individuals interaction with each other (ex: we can create legally enforceable
agreements enforceable by the courts); ex negligence and being able to sue for
compensation on loss
What does law do? - correct answer-- It influences and controls behaviour
- It empowers, influences, and controls the actions of government
- It influences and controls interaction between individuals (tort law, contract law, wills and
estates laws)
Two Types of Law - correct answer-o Substantive: the rights and duties people have under
the law; law that deals with the rights and duties of people
Examples: In criminal law, I have the right to have the government take someone to task
who beats me up, I have a duty not to beat people up
In contract law, agreeing to sell car; I have the right to expect you'll pay me, and the duty to
deliver the car
In negligence law, right to seek compensation for careless acts of harm, duty to try to avoid
causing harm, knowing id have to pay money if I did
Always think "what are my rights and what are my duties in this area"
o Procedural: the law in place to assist people to enforce the rights and duties that are
substantive; have to be procedures followed in order for me to have my rights fulfilled
Ex: if I breach my contract, the law says you have to sue, and file paperwork, go to court,
etc
Without procedural rules, there is nothing to enforce the substantive law
Need to know the general procedures at least to make sense of the process
Two Types of Substantive Law - correct answer-Public Law
Private Law
Public Law - correct answer-o Public law: concerned with the conduct of government and
concerned with the relations between government and private persons (people); always
involves government to some degree
Ex: criminal law; law that can only be made by federal level government of Canada (criminal
code); it is the Crown (government) taking you to court
Ex: constitutional law; sets out what powers government has; Canada's sets out the two
main levels of government (federal parliament and provincial legislatures) and what they can
do; also sets how we administer the law, how we enforce, and the adjudicate on it
• Constitution: the fundamental law of a nation or state (base law)
Ex: administrative law; each level of government creates boards or commissions and they
delegate the ability to make law to those people (ex CRTC)
Private Law - correct answer-o Private law: the law governing the relations between private
persons or groups of persons
, Where business law is situated
Ex: tort law is about when someone does something wrong and you need to be
compensated for what has happened like trespassing for example; dealt between two
people, government CAN be involved but not necessary like the government could sue you if
you damage their property
Ex contract law; between two parties that are buying/selling a car
Ex bankruptcy
Most types of law fall under private law (between two parties)
Also referred to as civil law
• Two main systems of law: civil law system**
• Civil case differing from criminal case (person suing another person)
Legal Liability - correct answer-- Legal Liability
o When a person breaks the law he or she is held responsible for consequences = "legal
liability"
o 3 forms of liability influence individual behaviour:
Criminal liability ex if I beat someone with a hammer, what are the consequences? Jail,
fines, etc
Regulatory or quasi-criminal liability; provincial law that is almost criminal law like highway
traffic act wheras you go over a speed on the highway you can be fined, or even jail;
certainly unacceptable and almost criminal law
*Civil liability ex does the owner have personal liability for the business?; know where you
are exposed to liability issues
The Constitution - correct answer-o Fundamental law of a nation or state
o Basic law from which all other parties draw their power to create law
o Sets the initial picture of the powers they have
Sources of Law/Who Creates Law? (3) - correct answer-o Courts
Make case law aka common law aka judge made law
Common law system of law says judges make the laws (used in most of Canada besides
Quebec)
When judges make law, it can be called judge made law or case law or common law (also
name of the system)
In this system, judges definitely make laws; the underpinning of the common law system
95% of the law of negligence is all made by judges; vast majority of all partnership law, all
kinds of areas where they make law
o Legislatures
Make statute laws; also referred to as an act (ex workers compensation act) or primary
legislation; either made by federal parliament and provincial legislature; given powers in
specific areas
Every province elects members of legislature; right now NDP is majority group
Could be conflict between legislatures and judge made laws; rule to differentiate is when
judge made law conflicts with statute, a valid statute overrides all case law on the same point
(overrides judge law)
• Has been many challenges to validity of statutes
, o Ex: Criminal Code sets rules for prostitution; struck as being invalid; code sets "solicitation"
and has been declared to be invalid; if someone says a statute is invalid, it's a court that
makes that decision; both judge laws and legislatures watch each other closely
o Administrative legislation and entities
Makes subordinate legislation
continued - correct answer-- Courts: in the system of law, we use in Manitoba, the Courts
can actually make law, called "case law", common law, or judge made law
o We deal more with this when we deal with the Systems of Law
o Theory of precedent: law sets a precedent that other courts have to follow later on
- Legislatures: provincial legislators and federal parliament
o Provincial legislature is the body of people we elect in a province to make provincial laws
o Parliament is the federal legislature of Canada which makes laws for Canada
- Administrative legislation and entities
o A statute (Act or primary legislation) can create an administrative entity or make rules as to
how these entities are to be manned
o Then that statute, which has become administrative in nature, delegates lawmaking power
to the administrative entity
Municipal Law - correct answer-- Constitution does not recognize municipal law; Manitoba
created City of Winnipeg Act, which delegates city council, divides city into wards so they
can elect their city counsellor
o Laws made by them are called bylaws, a type of subordinate
o Ultra vires: beyond the scope of their powers
o Subordinate legislation: a law made by a person, body, or tribunal that is subordinate to a
sovereign legislative body (like the city of Winnipeg)
When bylaws are created, that board is a body that is subordinate to the sovereign body (ex
city of Winnipeg)
- Only two sovereign levels are parliament and provincial legislatures
General Rule - correct answer-o General rule is: a valid statute overrides all case law made
on the same point where there is a conflict
o The key issue will be how to determine when a statute is invalid- this will arise when we
deal with the roles of the courts
Systems of Law (2) - correct answer-- Systems of Law
o The two main systems or law in the world are
o The Civil Law System of Law
Used in Quebec for private law matters
o The Common Law System of Law
If you are in the common law system of law, the term "common law" can have at least three
different meanings
• Common Law System of Law (as opposed to the Civil law System)
• Common Law as opposed to equity (courts of fairness = equity)
• Common Law (aka "case law" or judge made law) as opposed to statute law
- ** two meanings of civil law
o Civil law aka private law (occurs in both systems of law)
o When referring to the Civil Law System of Law
Rule of Law - correct answer-- Rule of Law: even government only has as much power as is
set out in the law; cannot go beyond the scope of powers given to them by the law
- Law regulates individuals interaction with each other (ex: we can create legally enforceable
agreements enforceable by the courts); ex negligence and being able to sue for
compensation on loss
What does law do? - correct answer-- It influences and controls behaviour
- It empowers, influences, and controls the actions of government
- It influences and controls interaction between individuals (tort law, contract law, wills and
estates laws)
Two Types of Law - correct answer-o Substantive: the rights and duties people have under
the law; law that deals with the rights and duties of people
Examples: In criminal law, I have the right to have the government take someone to task
who beats me up, I have a duty not to beat people up
In contract law, agreeing to sell car; I have the right to expect you'll pay me, and the duty to
deliver the car
In negligence law, right to seek compensation for careless acts of harm, duty to try to avoid
causing harm, knowing id have to pay money if I did
Always think "what are my rights and what are my duties in this area"
o Procedural: the law in place to assist people to enforce the rights and duties that are
substantive; have to be procedures followed in order for me to have my rights fulfilled
Ex: if I breach my contract, the law says you have to sue, and file paperwork, go to court,
etc
Without procedural rules, there is nothing to enforce the substantive law
Need to know the general procedures at least to make sense of the process
Two Types of Substantive Law - correct answer-Public Law
Private Law
Public Law - correct answer-o Public law: concerned with the conduct of government and
concerned with the relations between government and private persons (people); always
involves government to some degree
Ex: criminal law; law that can only be made by federal level government of Canada (criminal
code); it is the Crown (government) taking you to court
Ex: constitutional law; sets out what powers government has; Canada's sets out the two
main levels of government (federal parliament and provincial legislatures) and what they can
do; also sets how we administer the law, how we enforce, and the adjudicate on it
• Constitution: the fundamental law of a nation or state (base law)
Ex: administrative law; each level of government creates boards or commissions and they
delegate the ability to make law to those people (ex CRTC)
Private Law - correct answer-o Private law: the law governing the relations between private
persons or groups of persons
, Where business law is situated
Ex: tort law is about when someone does something wrong and you need to be
compensated for what has happened like trespassing for example; dealt between two
people, government CAN be involved but not necessary like the government could sue you if
you damage their property
Ex contract law; between two parties that are buying/selling a car
Ex bankruptcy
Most types of law fall under private law (between two parties)
Also referred to as civil law
• Two main systems of law: civil law system**
• Civil case differing from criminal case (person suing another person)
Legal Liability - correct answer-- Legal Liability
o When a person breaks the law he or she is held responsible for consequences = "legal
liability"
o 3 forms of liability influence individual behaviour:
Criminal liability ex if I beat someone with a hammer, what are the consequences? Jail,
fines, etc
Regulatory or quasi-criminal liability; provincial law that is almost criminal law like highway
traffic act wheras you go over a speed on the highway you can be fined, or even jail;
certainly unacceptable and almost criminal law
*Civil liability ex does the owner have personal liability for the business?; know where you
are exposed to liability issues
The Constitution - correct answer-o Fundamental law of a nation or state
o Basic law from which all other parties draw their power to create law
o Sets the initial picture of the powers they have
Sources of Law/Who Creates Law? (3) - correct answer-o Courts
Make case law aka common law aka judge made law
Common law system of law says judges make the laws (used in most of Canada besides
Quebec)
When judges make law, it can be called judge made law or case law or common law (also
name of the system)
In this system, judges definitely make laws; the underpinning of the common law system
95% of the law of negligence is all made by judges; vast majority of all partnership law, all
kinds of areas where they make law
o Legislatures
Make statute laws; also referred to as an act (ex workers compensation act) or primary
legislation; either made by federal parliament and provincial legislature; given powers in
specific areas
Every province elects members of legislature; right now NDP is majority group
Could be conflict between legislatures and judge made laws; rule to differentiate is when
judge made law conflicts with statute, a valid statute overrides all case law on the same point
(overrides judge law)
• Has been many challenges to validity of statutes
, o Ex: Criminal Code sets rules for prostitution; struck as being invalid; code sets "solicitation"
and has been declared to be invalid; if someone says a statute is invalid, it's a court that
makes that decision; both judge laws and legislatures watch each other closely
o Administrative legislation and entities
Makes subordinate legislation
continued - correct answer-- Courts: in the system of law, we use in Manitoba, the Courts
can actually make law, called "case law", common law, or judge made law
o We deal more with this when we deal with the Systems of Law
o Theory of precedent: law sets a precedent that other courts have to follow later on
- Legislatures: provincial legislators and federal parliament
o Provincial legislature is the body of people we elect in a province to make provincial laws
o Parliament is the federal legislature of Canada which makes laws for Canada
- Administrative legislation and entities
o A statute (Act or primary legislation) can create an administrative entity or make rules as to
how these entities are to be manned
o Then that statute, which has become administrative in nature, delegates lawmaking power
to the administrative entity
Municipal Law - correct answer-- Constitution does not recognize municipal law; Manitoba
created City of Winnipeg Act, which delegates city council, divides city into wards so they
can elect their city counsellor
o Laws made by them are called bylaws, a type of subordinate
o Ultra vires: beyond the scope of their powers
o Subordinate legislation: a law made by a person, body, or tribunal that is subordinate to a
sovereign legislative body (like the city of Winnipeg)
When bylaws are created, that board is a body that is subordinate to the sovereign body (ex
city of Winnipeg)
- Only two sovereign levels are parliament and provincial legislatures
General Rule - correct answer-o General rule is: a valid statute overrides all case law made
on the same point where there is a conflict
o The key issue will be how to determine when a statute is invalid- this will arise when we
deal with the roles of the courts
Systems of Law (2) - correct answer-- Systems of Law
o The two main systems or law in the world are
o The Civil Law System of Law
Used in Quebec for private law matters
o The Common Law System of Law
If you are in the common law system of law, the term "common law" can have at least three
different meanings
• Common Law System of Law (as opposed to the Civil law System)
• Common Law as opposed to equity (courts of fairness = equity)
• Common Law (aka "case law" or judge made law) as opposed to statute law
- ** two meanings of civil law
o Civil law aka private law (occurs in both systems of law)
o When referring to the Civil Law System of Law
