Exam 12: Performance of Contractual Obligations

If the restrictive covenant said that the land was never to be sold to a woman of Scottish descent, Martin could ignore it and sell to whomever he pleased, on the grounds that the clause breached public policy.

The Four Guys Garage advertised automobile repairs by "Licensed Mechanics." Terry, a car owner, took his automobile to the Four Guys Garage for repairs. The garage owner, Todd, examined the car, and indicated that extensive repairs were required. Terry left his car with Todd, and the repairs were carried out by another licensed mechanic, Rod, an employee. Terry paid $150 for the repairs, but on his way home discovered that the repairs had been negligently made, and had ruined the engine. Money damages awarded by the court for the negligence would be approximately equal to Terry's loss

The party who holds property for the benefit of another under a trust agreement or arrangement is known as the

Acme Engineering needed cash and on March 14^th assigned a block of its accounts receivable to Wellington Finance Company. On March 21^st, it assigned another block to Bristol Finance Company. By an oversight, the second block contained an account, a receivable from Smith, which Acme had already assigned to Wellington. The notice of assignment from Bristol arrived at the Smith offices on March 24^th, and Wellington's notice arrived on March 28^th. What is the most correct action that Smith should take?

Creighton owned a commercial property on the main street of a large city, which he leased for 15 years to a franchise of a nationwide department store. The lease contained a covenant prohibiting the department store tenant from establishing another one of its stores within a 15-kilometre radius of its current location. The main reason for the restrictive covenant was to protect the landlord's rental revenues. The rent for the property was set at a $24,000 minimum per year plus 3% of gross sales receipts. In reality, another franchisee of the department store had been operating a store within six blocks of Creighton's property for the last 10 years. Creighton was well aware of this fact, but had never taken any steps to enforce the covenant in his lease. In December, Creighton sold his property to Murdock and assigned the lease in its entirety. Creighton and Murdock arranged the deal such that Murdock made a lump sum down payment and Creighton held a mortgage that Murdock would pay, in part, with the monthly rental revenues from the property. The assignment was executed under seal and immediately written notice was sent to both the store manager at the leased property and to the national office of the department store chain. The notice informed the tenant that the assignment had occurred and that all future rental payments were to be directed to Murdock. The tenant properly forwarded its monthly payments to Murdock for several months. In March, Murdock telephoned the tenant to inform it that he had reassigned the right to receive the rental income to Creighton and that future payments should again be made directly to Creighton. The purpose of the reassignment was to reduce the length of time it took each month to get the payments processed from the tenant to Murdock and on to Creighton. In return, Creighton reduced the rate on Murdock's mortgage by one-quarter percent. Murdock pointed out, however, that he retained his capacity as landlord, having assigned only the rental income back to Creighton. One week later, Creighton brought an action against the tenant for damages for breach of the lease's covenant prohibiting the existence of the second store within 15 kilometres. Creighton sought damages in the amount equal to lost rental revenue for the previous 10 years. What legal issues are raised in this case? What arguments will be used by both Creighton and the tenant and what will be the likely outcome?

Simon bought a used yacht from Marvel's Marina and Boatyard for $70,000 to be paid in installments over six years. He traded in his smaller yacht for $10,000 at the same time, but Marvel wanted to keep the two transactions separate for financial reasons and he promised to issue a cheque to Simon for the trade-in. Marvel assigned the $70,000 contract to Strait and Naro Finance (S and N). The first Simon knew of this was when he received copies of both contracts and a notice to pay the payments to S and N. Assume there was a valid assignment. Simon still has not received the $10,000 and, when he calls Marvel, he finds the Marina has been sold to someone else and Marvel's whereabouts is unknown. He has a copy of the trade-in contract.

George was approached by a travelling salesperson, who convinced him to purchase an automatic weaving machine at a price of $900. To encourage the sale, the salesperson had verbally agreed to purchase, for a very modest price, any goods George wove which were up to a marketable standard. It was suitable for a home business, and George undertook a series of payments under a written agreement. The machine did a poor job, producing nothing marketable. The salesperson had disappeared in the meantime, having assigned the agreement to a finance company. The finance company was now looking to George for payment. George refused to pay. Explain the rights and liabilities of the parties.

York Co. assigns a conditional contract with Bevier to Zeno Finance on November 10^th. Zeno Finance notifies Bevier of the assignment on November 17^th. Bevier had mailed his cheque to York Co., due on November 15^th, on November 12^th. Bevier must put a stop payment on the cheque to York Co. and issue a new one to Zeno Finance for the November 15^th payment.

Boyz Finance Company approaches merchants and gives immediate cash to them in return for the right to collect the series of monthly payments made on account by the merchant's customers. Boyz pays $75 now for the assignment of right to collect $100 in the future. For good reason, Boyz should be examining the business practices of the merchants from whom it accepts assignments as much as it examines the credit-worthiness of the accounts that it purchases.