Contract Law

Our first line of defence in this course (on reserve):
•    Waddems: Contract Law in Canada
•    Cheshire and Fifoot – designed for students and practitioners.  Authoritative.
•    Attyah – Introduction to the Law of Contract.  This one is designed for students, but is at times advanced (bold, unorthodox).
o    1x/week, should be reading material on reserve.  Pick one of the cases we are doing in class, then look it up (index) in one of these books.

Electronic Communication/Transactions
http://www.gnb.ca/0062/acts/acts/e-05-5.htm
•    In most provinces now, there is some for of an Electronic Transactions Act.
•    Uniform Law Conference of Canada – contract law in Canada is a matter of property and civil rights – provincial responsibility
o    Can be different in each province – this can be odious not only for citizens, but for corporations.
o    Indirectly in Canada, we have tried to do what the Constitution doesn’t (though does mention) – the Uniform Law Conference of Canada (estb’d ~1914).  Takes the basic statutes from provinces (usually based on English statute), and tries to eliminate their differences as much as possible.  For areas of law that need new statutes, the ULCC drafts a new statute, which provinces can voluntarily adopt (either it, or a close approximation).
o    The NB Electronic Transactions Act is the result of one of these conferences.
•    NB’s ver is a mild version.
•    It is wholly permissive and facilitating.
•    Doesn’t require the use of electronic signature or anything of the like.
•    Facilitates:  As long as one intends something to be their signature, then it counts as a signature.
•    Has a provision for an electronic equivalent of registered mail.

Time of sending and receipt
16(1)Unless the sender and the addressee agree otherwise, electronic information is sent
(a)when it enters an information system outside the control of the sender, or
(b)if the sender and the addressee are in the same information system, when the sender takes the appropriate steps to make the information accessible to the addressee.
16(2)Electronic information is presumed to be received
(a)when it enters an information system designated or used by the addressee for the purpose of receiving information of the type sent and it is capable of being retrieved and processed by the addressee, or
(b)if the information enters some other information system and it is capable of being retrieved and processed by the addressee, when the addressee becomes aware that the information is in that other system.
16(3)Nothing in this section shall be interpreted as determining the place from which electronic information is sent nor the place at which it is received.

•    Sending and receiving is covered, and important.
•    This section covers time.
•    Note the use of the word “presumption” in 16(2).
o    Presumptions are rebuttable.
•    16(3) negates any link between the “when” and ther
•     “where”.  This would otherwise be very pertinent.
o    The significance of this can likely be ascertained from looking at the Eastern Power case.
•    Ordinary rules of contract law mean that wherever one opens one’s email could be where the contract is made (ex:  Sitting on a stopover in Hong Kong, whence neither party is from [is that a redundent phrase?])
•    To the extent that courts have given hints, they will use the ordinary rules of offer and acceptance.

“Firm” Offers
•    An offer which is expressed by the offerer to be open for a specified time.
o    All offers are open for some period of time – they have an expiry date.
•    A “firm” offer, the expiry date has been expressed.
•    “I offer to sell you my car for $1000.  This offer is open until 9am on Friday morning to accept.”
•    Basically saying, ‘I will not revoke it until 9am on Friday.’
•    Conveys to offeree that the offer does not have to be accepted right away – can take until the firmly specified time.
•    But (disillusioning moment) firm offers are not worth the paper that they may or may not be written on.
•    The offerer is not bound by this condition.
o    “Firm” offers are not firm at all.  End up being a trap for the offeree.
o    Even though the offer has been phrased that way, can be revoked at any time.
•    The key here is the word “revoke”.  It does not mean simply, “I’ve changed my mind.”
o    It involves communicating the ‘change of mind’ – revocation, like acceptance, is not revocation until communicated.
o    To prevent the other party from Accepting and forming a contract, must communicate the revocation before they communicate their Acceptance.
•    Why is this promise to keep the offer open not binding?
o    Lack of consideration – there is nothing being offered to keep the deal open.  [Bilateral v. unilateral?  P448 – “an offer in the unilateral sense can be revoked up to the last moment before complete performance”]
o    “The law does bind us to our word.”
o    In fact, we are not bound by any promise we make unless that is inside a contract.
•    There can be a contract to keep an offer open.
o    There must be consideration.  In other words, one can buy the right to, for instance, buy land.
o    This “buying” the right to accept or reject is called an Option.
o    An Option is a Firm Offer.  It is irrevocable.
o    The Offeree has paid the Offerer to keep the offer open for a specified period.

Unilateral v. Bilateral
Bilateral
•    Generality of offers is what the law calls bilateral offers or bilateral contracts.
•    A bilateral offer is one which, if accepted, gives rise to a bilateral contract.
•    So phrased so as to be open to verbal or promissory acceptance.
•    The offer must be phrased to be open to Acceptance (verbally)
Unilateral
•    “I offer you £100 to walk to York.”
o    This type of offer is so phrased that it is not susceptible to verbal acceptance – only by doing something.
o    It calls on the offeree to do something to accept – must be completed to form an acceptance.
o    In order to get $100 to find a lost cat, the cat must be found to constitute acceptance.
•    So phrased that it can be accepted only by doing some action.
•    Only when the offeree has completed the “thing” does the Acceptance occur.
•    This something, when done, constitutes Acceptance.
•    Often referred to as “if” Offers.
•    Either literally or analytically, they begin with an “if”.

What if this idea is filtered through the idea of revocability?
•    Unless accepted, an offer is just a promise.
•    “£100 to walk to York”
o    If this is Accepted by walking to York, then unless one has reached York (even 99% the way there), the offer can be revoked.
o    The law does not enforce promises.

Dawson v. Helicopter Exploration
•    Justice Rand is considered the greatest Jurist in the first half of the 20th-century.
o    “The Rand Formula” –
o    Rand worked to settle the boundary between Israel and its neighbours.
o    Son of a railway worker from Moncton.  Grew up poor.  Went to harvard, became lawyer, AG of NB.
o    Intercolonial in Moncton – bankrupted railways – became CN and moved to Montreal.
o    Rand became head of CN and followed to Montreal
o    Turned down SCC once, but did accept eventually.
o    Militant agnostic.
o    Served on SCC for about 15 years – short at the time. (44-’59)
o    Went off in 1959 to found law school at UWO.
o    None in ON are very old (law schools)
o    Taught at UNB.  Long-time selector of Beaverbrook scholarships.  Taught at law school here.
o    Writing style indicative of Harvard education.

Dawson
•    Cannot sue unless there is a contract
•    Company held that there was no acceptance.
•    Dawson did not go with them to find the claim.
•    Rand says that it is beyond doubt that it is not unilateral agreement – it is a bilateral offer, subject to promissory agreement.
o    This makes it a contract – enforceable.
o    It was the defendant’s fault that the “if” was not completed.
o    The “Acceptance” required complimentary action on the part of both parties.
o    [I see the reasoning here this way (it escapes Bell, he says).  If I say, “Bob, I’ll give you $10,000 to walk to Moncton by 5:00 tomorrow evening with me on your back.  If at 4:45 the next day, Bob is about to cross into Moncton, after having walked the entire way. I jump off and break Bob’s legs with a baseball bat.  Bob is put into an ambulance and brought to a Moncton Hospital..  In the course of the Criminal proceedings against me, could Bob not also sue me for the $10,000 “owed” to him under our alleged contract?]

5 Slogans:  (find ‘em)

*The pl always sues in his/her capacity of promisee
*The consideration is that which the promisee must demonstrate to the court that he/she exchanged to the promisor for their promise
Must take this decision path initially to get one’s bearings in the actual case.
Identifying the promise and dispute will tell you who the parties are – will coincide.

Too often students do not know where to begin with a problem.  Must orient oneself as per above.

*A promise of consideration is as good as consideration for this purpose.

In the eyes of the law, for this purpose, the law is prepared to treat the promise of something as equivalent to consideration – which is why it can be that my promise to convey my car to you for $1000, and your mutual promise to pay me $1000 for title to my car, gives rise to a binding agreement.

*Consideration is always a bargained-for detriment to the plaintiff-promissee
•    Always; bargained-for; detriment
•    Bargained-for is not just any detriment that counts as consideration.
o    It must be a detriment that was part of the bargain.
o    Ex:  In Dalhousie, the buildings (though a detriment) were not bargained for.
•    Something for something – an arrangement.
•    Consideration is always a bargained-for detriment.
•    **”Always”:  will come back to this word in this statement.

*Past Consideration is no consideration.

P 264
*Consideration need not be adequate;
or, the law does not inquire into the adequacy of consideration.
•    But, law does look at the sufficiency of consideration.
•    By adequacy – we mean the equivalence of the exchange; the quantum; quantity
•    Ex:  Arguing that selling one’s $10,000 car to another person for $1000 – the court does not allow us to go back and examine the adequacy of the arrangement.
o    If one is prepared to part from one’s property for a given price, then the value is simply seen as subjective; as in the appetite of the contractor.
•    By sufficiency (quick and dirty distinction between the two), we mean the ‘substance’ as opposed to the quantity.
o    Comes up in a surprising number of cases.
o    Means the consideration must partake of the substance of things that the law is prepared to accept as consideration.
•    Obvious example is moral consideration.
•    Cannot enforce moral considerations.
•    Past consideration does not count as sufficient consideration either.
•    Means that for something to be considered consideration, it needs to be of the substance of things that the law is willing to look at as consideration.
•    Mere detriment is not sufficient consideration – only bargained-for detriment.
•    Non-bargained-for reliance on a promise does not count as sufficient reliance.
•    SO, the law does not look at the adequacy of the consideration, but does require that it be sufficient
o    Means that the law doesn’t care how much consideration is involved, as long as it is consideration.

Past Consideration is no consideration
o    Implies a reference to something that is present.
o    The ‘something’ that is present is the promise.

Eastwood v. Kenyon
o    The husband undoubtedly made the promise, but this is not enough.
o    What did Eastwood exchange to Kenyon?
o    The consideration was rendered to Sarah a long time before her husband made the promise (or likely even knew her).
o    Could simply say that consideration is always a bargained-for detriment, and there was none of that here.
o    Can also say here, more particularly, that past consideration is not consideration.

o    Eastwood v. Kenyon is the case where consideration ceases to be simply ‘a word’.  It is a watershed in giving ‘consideration’ its modern meaning.
o    Goes to having a technical meaning in the law.
o    Para 9, page 267 – Lampleigh v. Brathwait (1615) – “the leading case on the subject…”
o    Distinguishable from Eastwood and Kenya
o    In E. v. K., have 1) Eastwood’s spending, then 2) Kenya’s promise
•    (1) had already been done before (2) came along.
o    In L. v. B., there are 3 acts:
•    Facts:  braithwaite killed someone, and was sentenced to hang.  At the time, those who were sentenced to hang were in fact not hanged.  They were usually pardoned (either conditionally or unconditionally).  Braithwaite told Lampleigh to go to the King and lobby for a pardon.  This is Act (1).
•    Next sig thing that happens (2), is that Lampleigh does attempt to find the court, to lobby it.  It takes him awhile, but he does it – successfully.
•    (3) – Braithwaite promised Lampleigh compensation
•    In this case, the court said that braithwaite’s promise was enforceable.
•    Said that Lampleigh’s actions were consideration.
o    In Eastwood, the judge says that Lampleigh v. Brathwait was distinguishable from a past-consideration scenario.
o    Says that in L. v. B., the consideration was implicit in the original request.
o    (3) is implicit in (1).
o    P 267 – Hobart C.J. says that a mere voluntary courtesy will not have a consideration to uphold a promise.
o    If someone offers someone something as a courtesy for something already done, then the consideration is already in the past, and not-binding.
•    Ex: ‘b’ mows ‘a’s’ lawn.  ‘A’ offers ‘b’ $20 as compensation.
o    If the courtesy were moved at the request of the party who made the promise, then it is binding.  Then, it is not naked (nudem pactum) – but couples itself with the suit before…
o    This means that if, for example, ‘a’ asks ‘b’ to mow their lawn, ‘b’ mows the lawn, and then ‘a’ promises to pay $20 – the promise for $20 can be interpreted as implicit in the original request.
•    The coupling is through an implication.
•    It is implicit that one is not asking for a gratuitity.  This is, of course, much clearer in the realm of business as opposed to friends or neighbours.
o    [Aside:  Remember that juries determine questions of fact, judges determine questions of law.]

p 282.  Guiding Transaction Adjustments
o    a pre-existing legal relationship, that the parties wish to adjust.
o    How is this accomplished in a way that ‘sticks’?
o    Ex: ‘a’ promises ‘b’ to sell his car for $1000.  ‘B’ says yes.
o    ‘A’ regrets selling for too little, so ‘B’ agrees to up the price to $1200.
o    Often times, this would result in an amendment  – cross out $1000, write in $1200, and both parties initial.
o    Had a living contract, and decided to adjust it.
o    The question is whether this perfectly intuitive action is actually legal…
•    Does this actually result in a legal obligation to pay the $1200.
•    No.
•    This is very likely not legal.

Stilk v. Myrick [1809]
•    Napoleonic wars
•    Embargoes on Britain forced them to go far-afield for materials such as timbre.
o    In this case, there is a contract of hire for a vessell.
o    £5/month for the sailors.
o    2 sailors desert at Cronstadt (now Finland, then Russia).
o    The captain promised the other men that, were the places not filled, they would have the deserters’ wages split amongst them.
o    The places proved impossible to fill, and the remaining 9 crew worked the ship back to London from what is now Finland.
o    The captain, upon their return to London, would only pay the £5.
•    Garrow, for the masters of the ship, was one of the first famous lawyers – known for his appeals to juries
o    Garrow argues that if this sort of action were permitted, crews could extort captains to pay them more, or they would allow ships to sink during emergencies, etc.
o    Judges say that the deal is in fact unenforceable because the sailors gave the captain no consideration.
•    At this time, the answer to the question “Why can’t one sell oneself into slavery?” changed.
•    The trad answer was that it was against public policy.
•    Around this time, the answer changed to ‘beause there was no consideration’ – the property of the slave becomes the property of the master.
•    The law was becoming more theoretical.
o    The sailors who remained with the ship were already legally bound to do so.
o    Those who remained were bound by the terms of their original contract to do their utmost to bring the ship safely to its destination.
o    Therefore, the sailors were only promising to do their pre-existent legal duty – this does not make up new consideration for a new bargain.
o    A promise to do that which is already one’s legal duty is not sufficient to form consideration.

Gilbert Steel Ltd. v. University Construction Ltd.
o    The promise being sued on is the promise to pay an increased rate for the steel beams.
o    What consideration did Gilbert Steel give to University Construction Ltd. in exchange for this promise?
o    G.S. alleged that they agreed to give a good price on the second building in exchange for this agreement to pay an increased rate now.
•    2 problems:  i) too vague;  ii) doubt that it was agreed up (even if it was mentioned)
•    Does not work as consideration
o    The delivery of the steel is the obvious consideration.
•    Why is it not?
•    They were already obliged to provide this steel, as part of the original agreement.
•    There is not detriment here.
•    This is why they switched to the “good price” arguument.
o    Pl.’s lawyer argued that the consideration of the oral contract was the mutual abandonment of the prior agreement.
•    Variation scenario – does not work unless one has a mini-contract to change an already existing contract, which in itself requires consideration.
•    If they had decided to call the whole thing off, leaving them (at least for a millisecond) contractless, and entered into a new contract, then that would be binding.
•    Why is it binding to agree to call a contract off?
•    Each side is sustaining the bargained-for detriment of releasing the other side from their obligation.
•    Releasing another from an obligation is a detriment.  Here it is also a bargained-for detriment.
•    It is binding.
•    “Recision + new contract” analysis – this would work.
•    “variation” will never work, unless it is that mini-contract to vary.
o    Recision + new contract is the argument that Mr. Morphy makes here.
•    Wilson J.A. says that this is perfectly legitimate, but that there is no evidence to support the idea that this is what the parties believed they were doing.
•    How does one know whether a particular action is variation or recision?
•    very difficult.
o    This is why the correcting-and-initialing is likely not legal.
o    The editors of our text portray this case as one of the worst decisions ever made.
o    The article on page 297 is by one of the editors – Barry J. Reiter.

Williams v. Roffey Bros and Nicholls (Contractors) Ltd.
o    Very similar case
o    Another contract case.
o    Another case where the project was half-finished.  Promised more to finish the project – how could this be binding?
o    Very rare in English C.A. for all three judges to write (as in Canada).
o    In this case, all three write.
o    Ever rarer for all three to write when they agree – they do in this case.
o    This is something different about this case…
o    Agree that this is enforceable, but are obviously so uncomfortable with enforcing it that they take a stab at explaining it.
o    Each of the three say that they are not overturning Stilk v. Myrick.
o    Say that it still stands for something.
o    Facts:  Roffey Bros have a contract with the municipality whereby they need to have the repairs completed by a certain date.
o    The pl. was a carpenter.  Def. was supposed to make progress payments to the plaintiff.
o    By april 9 1986, Pl. had completed the work on the roof, and first repairs to all 17 flats, and the second repairs on 9 flats.
•    Defendants had made interim payments of £16,200
o    By end of March, pl had run out of money
•    Roffey Bros. approach them and offer more money
•    Williams still went insolvent – had the audacity to sue Roffey Bros.
•    The fault was of Williams for putting in an unrealistic bid.
•    Had Roffey bros. over a barrel, due to the time restrictions on the other contract.
•    Under orthodox analysis, the plaintiffs already had a duty to finish the flats.
•    By promising again to do so for more money, they have insufficient consideration.
o    Where is the consideration that the judges find?
o    What the court has always required is that the pl. promisee exhange a legal detriment to the promiser.
o    In Hamer v. Sidway, in the real world, the kid was benefitting from not smoking, drinking, gambling but in the eyes of the law, giving up ones rights to do something is a detriment.
o    This case acknowledges the diff between a practical benefit and a legal benefit.
o     A practical benefit is not one that the law would normally recognize
o    at the end of this case, the practical benefit turns out to be the legal benefit.

Para 15 – page 303
o    Judge says that Roffy Bros was in fact deriving practical benefits from Williams completing the project at the new price.
o    Keeping Williams on the job should have been to the Roffy Bros benefit, as they did not have to try to find new contractors if that were even possible.
o    Says that the underpining of the rule in Stilk v. Myrick was to save masters from economic duress.
o    P 305 – para 22
o    Propositions
o    The obvious objection to these propositions is that consideration is a bargained-for  detriment
•    What new detriment did Williams sustain?  None.  They are already bound.
•    This judge ignores this.  Says that it is enough that it is a practical benefit to the promisor.
•    Bell thinks the judge is responsible for an enormously significant improvement in the law that is not based on sound theory.
o    Judge #2 – Russell L.J.
o    Says that it does not overturn stilk and myrick.
•    Sure…
o    S v M is not about a promised gift, despite what he says.
o    What he says it stands for bears no relation to what was in the case.  This is a trick.  It is a manipulation of the common law.
o    Judge #3 – Purchas L.J.”
o    Also says not overturning Stilk v. Myrick
•    Takes a different approach – changes the def’n of consideration away from detriment
•    Calls this the modern approach (para 33)
•    Note “Economic Duress”

While this case may be a good decision, it cannot possible be commensurate with contract theory.

For Friday:  finish cases on this page of syllabus

Privity

•    If C is a stranger to a contract between A & B, then C must fail legal action

•    In a contract between A & B in which C is a beneficiary, the A-B contract contemplates C.  C is still a third party, but not a stranger – is actually named in the agreement.
o    Beneficiary – the recipient of a benefit under the contract.
o    Our system of law treats the third-party beneficiary the same as the third-party stranger.
o    1861 case established this.
o    in earlier cases, C coud sue on the contract
o    once contract theory evolved, C became a victim of the quest for theoretical purity.

•    If A & B form a contract with A working as an agent for C, then C is not a mere third-party beneficiary.  C is a party.  A is not.
•    If A & B have a contract which has not yet been performed (any contract creates private rights – rights are property; choses in action), A has rights against B, and can, if A chooses, “alienate” their rights against B to another party.  Can sell or give incorporeal rights (assign).
o    C gains the rights to what A assigns C.
o    A-C contract.  A had rights under the A-B contract, but sold them to C = assignment.
o    Question:  What rights does C have under the A-B contract?  Suppose B breaks the promise – Can C sue?
•    Equity will allow C to sue B.
•    A is still in the original contract, but so is C.  C could sue B, but might have to sue B using A’s name.
•    Superficially, case would be A v. B,  but would actually be C sueing B.  This is how equity works in this situation.
•    Now there is a statute in every province which simplifies this situation.

Third A-B-C relationship:
•    The trust example
•    A & B have a contract (if unperformed, then each have subsisting rights against the other.  Rights are property.  Choses in action.)
o    A may hold the property (the right against B), not for his or her own benefit, but for the benefit of C.
•    A – trustee (of contractual rights)
•    C – beneficiary of the trust.
•    Referred to as cestqui que trust
o    If A does not act as a vigilant trustee, sueing B for unperformed actions, then C can unequivocally sue B.
o    Here, dealing with property – in the eyes of equity, A’s rights do not belong to A at all.  Belong to C.  Not suing on basis of contract.  Sueing for property.  A has legal title, C has equitable title.

New Zealand Shipping Co. Ltd. v. A.M. Satterthwaite & Co. Ltd.
•    There was a view that courts do not have the authority to change the privity rule, and says that the onus is on the legislature to change it.
•    The tide turned a little in New Zealand Shipping (page 381 onwards)
•    House of Lords, though unwilling to change the rule, softened up on recognizing trust and agency to get around the rule.
o    Did not change the rule – signalled a softening.

London Drugs Ltd. v. Kuehne & Nagel International Ltd.
Page 385
•    Goes much futher than New Zealand Shipping
•    Does in private law something that is rarely seen – grapples with the doctrine itself.
•    Interesting discussion on the issue addressed by Simonds (not the place of the court to change even judge-created laws).
•    SCC addresses the question.  Iocobucci J. says that judges can make incremental changes, but not large changes in well-accepted private-law rules.
•    Agrees that major changes to this would have to come from legislatures – in Canada, this means each provincial legislature, due to the Constitution.
•    Contract between A & B, which agrees that in certain circumstances, B will not sue C.  Shield promise.  Exemption promise.
o    Contrast to contract such as insurance policy where the goal is to confer a benefit on C.
•    Limitation of liability clause.  C’s defence would be based on the contract between A & B.
o    Court reasons that letting C defend itself is less radical than conferring a benefit on C.
•    London Drugs is a bailment case.
o    The bailee is a corporation – a warehouse.
o    Corporations can operate only through human agency – human beings.
o    The employees are negligent in handling the bailor’s chattel.
o    They are tortfeasors
o    The bailor sues the bailee – the human employees of the bailee.
o    Page 385 – the liability clause.
•    The bailor did not pay the additional charge to cover warehouse liability
•    Means, in effect, that the bailor took the risk on themselves.
•    In the suit against the employer (the warehouse) the warehouse was covered against liability by this clause, and was liable for only $40.
o    What of the employees?  Question of whether they were shielded.
o    Note:
•    1)  The reciprocity objection:  would allow a person to sue on a contract when that person could not be sued on the contract.
•    Lack of reciprocity
•    This is a trad. objection allowing C to sue as a third party.
•    2)  A & B contract.  One of the rights is to change their contract (though this is sometimes tricky -  need consideration).  As soon as one says that C acquires a right under A-B contract, that seems to inhibit A & B’s right to alter contracts.
•    The law does not allow us to destroy other people’s rights.
o    Iacobucci J. addresses these issues.
•    Says that rather than trying to find a way around the privity problem, will instead change the doctrine of privity.
•    Do not think that he tries to find that the warehouse contracted on the right of its employees.
•    Does not find any rel. in privity between the bailor and the bailee’s employees
•    Allows the employees to have rights even though they are not in privity
•    Says that in an employment situation, when A deals with B, knowing that B has employees, and that the actions can only be carried out by the employees, to give B’s employees certain rights under the A-B contract is not so very radical (should not take the bailor by surprise).
•    Much turns on C being an employee of B.
•    Paragraph 46, page 395.
o    “I am of the view that employees may obtain such a benefit if the following requirements are satisfied…
•    limitation of liability clause must, expressly or impliedly extend its benefit to employees
•    the employees seeking the benefit of the clause must have been acting in the course of their employment and been performing the very services provided for in the contract between their employer and the plaintiff (customer) when the loss occurred.
o    Said that the bailor was promising the bailee that if the bailee’s employees committed a tort, they would be shielded from liability above $40
•    ends up (on page 397) saying that by implication, the promise to the bailee covered not just the bailee, but also the employees (note – not saying that the bailor promised the employees – promised the bailee).
•    Cannot find the promise expressed – finds it implied.
•    Top of 397 – employees were not to benefit?  Says the language of the clause means inevitably that the employees were not covered.
•    The test of intention here, then, is a very shallow test.
•    Believes, on the facts, that when the bailor and bailee did contemplate (though not expressed) that the employees would be shielded from liability.
•    In the context of employment, employees can raise defences to lawsuits – the SCC has made an enormous practical and symbolic inroad into the doctrin of privity.
•    NOT saying that the employees were parties to the contract – saying they were intended beneficiaries.
•    As such, can invoke this defensively as a shield.  Still would not allow this to be used offensively.
•    The reason courts do not take the trust or agency argument and make them cure-alls is just because they would be cure-alls

Read up to Law Reform Act for next day.
Monday’s class will be review.
Can have another review class on Tuesday – 12:30pm tentatively