Clinician Guide for Consumer Transactions (11:X)

A. Determine the Client’s Position and Desired Outcome

• Ask to see the contract. Reading the terms as they are written is the first step in analysing the contract and determining its meaning.
• What did the client and the other party agree to do, and how did that party agree? Clients tend to focus on the personal consequences of a transaction. That a contract or its execution is inconvenient to the client is not helpful unless the client has a legal remedy. Determine the subject matter of the contract and the understandings surrounding it. It should be ascertained as early as possible what other terms or representations were made surrounding this contract as what is written on paper may not accurately communicate the parties' agreement.
• What were the written and oral understandings? Under traditional common law, a contract had to be either all written or all verbal. Section 8 of the SGA permits a contract to be partly in writing and partly by word of mouth, or implied by the conduct of the parties. Section 187 of the BPCPA states that parol (verbal) or extrinsic evidence can be admissible evidence toward understanding what agreements the parties made. Further, there is extensive case law supporting the position that one cannot induce another party to enter a contract with verbal representations and then refuse to act on those representations because they are not in the written contract.
• Did the client receive all of the statutorily required information when entering the contract? The BPCPA sets up significant notice and information requirements that, if unmet, may invalidate the contract.
• What outcome is the client looking for? Does the client want damages? Or to get out of a contract? Or some other remedy? The client may need assistance in resolving these questions. Frequently, a client will feel wronged, but have no clear idea what his or her rights are or what solutions he or she would find acceptable.
• When the client arranged the transaction, did he or she do so primarily for personal, household, or family purposes, or for business purposes? In many situations, the BPCPA will not apply to non-consumer transactions. The SGA, on the whole, protects all buyers – although some rights may be weaker if the buyer is a business rather than a consumer.
• Was the client cheated, misled, or bullied in the transaction? If the answer is yes, the BPCPA or common law rules against misrepresentation or unconscionable conduct may apply.
• Has the client in any way acquiesced to the actions of the other party, or waived his or her rights? According to section 3 of the BPCPA: “Any waiver or release by a person of the person’s rights, benefits or protections under this Act is void except to the extent that the waiver or release is expressly permitted by this Act”. Section 69 of the SGA allows some of the rights or duties under a contract of sale to be set aside (see also SGA, s. 20). At common law, if a party waives rights he or she may be estopped from later insisting on them.
• Has the other party already performed all or part of the obligations? Section 15(4) of the SGA provides that if the buyer has accepted part of the goods, and the contract is not severable, the buyer can no longer treat the contract as terminated for breach without an express or implied term in the contract allowing so. However, he or she may be entitled to damages for breach of contract in that situation. This position is subject to qualification. For instance, under s. 23 of the BPCPA, concerning future performance contracts, the buyer is entitled to cancel the contract for up to a year when the supplier has not made the appropriate disclosures required by the Act.
• Has the client expressed his or her concerns to the other party? The other party may not know there is a problem. Where the other party has not been put on notice that there is a problem, issues of estoppel and acquiescence may enter into play. The Law and Equity Act, RSBC 1996, c 253, s 62 provides that a party to a contract may, instead of refusing to perform a disputed obligation, perform the obligation under protest if he or she gives reasonable notice to the other party that the performance is under protest, and then perhaps receive compensation for that obligation if it is beyond what was required in the contract. Letting the other party know may be the most simple and cost effective way to resolve any problems arising from a consumer transaction.
• Is either party unable to perform the obligations due to circumstances beyond that party’s control? If so, the common law around frustration of contracts and the Frustrated Contract Act, RSBC 1996, c 166 may apply to the transaction.
• Was the client’s attention drawn to any onerous provisions in the contract? Tilden Rent-A-Car Co v Clendenning (1978), 18 OR (2d) 601, 83 DLR (3d) 400 (Ont CA) states that a party seeking to rely on onerous terms in a standard form contract should take reasonable measures to ensure that the other party is aware of those provisions. In Karroll v Silver Star Mountain Resorts (1988), 33 BCLR (2d) 160, 47 CCLT 269 (BC SC), however, the Court found that there is no general requirement to bring onerous terms to the attention of a signing party; only circumstances in which a reasonable person would have known that the party signing was not consenting to those onerous terms create an obligation on the party tendering a document for signature.

B. Check the Form and Terms of the Agreement

• The terms of a contract should refer to such things as quality, terms of payment, and the time at which title is transferred.
• The terms may be construed either as conditions, warranties, or innominate terms. The rights and remedies of the buyer will depend on how the terms of the contract are classified. This is discussed at length in Section III: Contracts for the Sale of Goods.
• The form of the agreement(s) can be legally important. If there is a contract in writing, what is said about the subject matter of the contract may be characterized as representations rather than terms of the agreement. Section 8(1) of the SGA states (with qualifications) that a contract may be partly in writing and partly by word of mouth, or may be implied by the parties’ conduct.
• Some contracts are statutorily required to be in writing, and moreover, some require that the writing conform to a strict format that is laid out either in an Act or by Regulation. The BPCPA is very strict on the form required for some contracts, as explained in detail in that section.

C. Determine Whether the Contract Complies with the Statutory Requirements

If the contract does not comply with the statutory requirements, inform the client of any available defences against legal actions by the other party, possible legal actions by the client, available statutory remedies, and the appropriate action for the client.

D. Determine Whether Any Common Law Remedies are Available

Where the statutes do not apply, there may still be a common law defence available.

1. No Obligation

In order to enforce the terms of a contract, there must be a contract and the particular terms must be enforceable under that contract.

2. Misrepresentation

Misrepresentation occurs when a party is induced to enter a contract based on a false statement. The remedies available depend on the nature of the misrepresentation. See section IV.I for more information on misrepresentation. 3.Frustration If performance of the contract is impossible due to circumstances that arise after the contract was signed and that were outside of either party’s control then the contract can be found to have been frustrated, and ongoing obligations under the contract will cease to apply. Once frustration is found to have occurred at common law, the Frustrated Contract Act will apply to adjust the rights and liabilities of each party and to appropriate restitution. 4.Mistake Mistake is defined at common law as a fundamental misunderstanding between the parties to a contract. There are three categories of mistake: common, mutual, and unilateral. A common mistake exists when both parties make the same mistake. For example, the subject matter of the contract may not exist or was destroyed prior to the agreement. A mutual mistake exists when the parties make a different mistake, e.g. a purchaser wanted type A widgets and the vendor thought he or she ordered B widgets, so there is disagreement as to a term of the contract. This is usually an offer and acceptance issue, for both parties have to come to agreement for there to be a contract in the first place. A unilateral mistake exists when one party is mistaken about the obligations that he or she has assumed. This is a difficult defence because a court is unlikely to excuse the party from obligations on account of his or her unilateral mistake, unless the other party was aware of the mistake.

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