RSS FeedUnconscionable Organ Donations
“Dr. Horror” Captured
An internationally wanted physician from Brampton, Ontario, was caught in Nepal last week.
Dr. Amit Kumar was wanted for harvesting organs from poor Indians, usually sold to more affluent people, including international citizens.
[youtube]http://www.youtube.com/watch?v=xoPPxJSn_ZQ[/youtube]
An Ethical Debate
The Kumar incident has sparked an ethical dialogue over organ donation.
Andrew Chung of The Star states,
Some libertarians would say that as individuals, we should be able to choose, if we so desire, to sell one of our two kidneys. It’s my kidney, after all, and I can do what I like with it.
Chung quotes Michael McDonald, of the W. Maurice Young Centre for Applied Ethics,
It’s not just another piece of property that we own, like a watch…
Who owns the body? There are just some things that are not to be bought or sold, not marketable quantities.
Chung also cites Leigh Turner, McGill University professor at the Biomedical Ethics Unit,
If a decision is uncoerced, if no one’s forcing you, you should be in a position where you can make the choice and live with the consequences…
But once you add poverty and real inequality to the mix, suddenly choice and autonomy starts to look a lot murkier.
Leigh’s last point refers a form of procedural unconscionability, a classical concept in the equitable courts of common law used to protect vulnerable parties. Equity was distinguished from the rest of common law by its intense focus on ethical issues to achieve justice.
Using the case of Dr. Kumar can help illustrate some of the principles of this equitable doctrine.
Defining Procedural Unconscionability
Procedural unconscionability is a type of equitable fraud, not involving a misrepresentation of facts, but rather through the conduct of one party in obtaining assent.[1]
Conduct is evaluated by examining whether parties meet on equal terms, and if they were taken advantage of as a result.[2]
The court can consider this a form of equitable duress which can produce an unfair result and therefore set aside to avoid perpetuating injustice.[3]
In addition to the reasonableness, the court will look at how equitable a transaction is, and how conscientious the other party is.[4]
Unconscionability therefore does not require deceit, and can be caused by distress, recklessness, wildness, or carelessness. [5] The characteristics of the relationship between the parties are also inconsequential for the purposes of unconscionability.[6]
Two Elements of Unconscionability
The presumption of fraud is established through a proof of inequality of bargaining power, and an undue advantage or benefit that impairs the weaker party from protecting their own interests.[7]
This can commonly occur between two parties where one is astute in business, and the other is older and vulnerable, and the former use their power over the other to their advantage.
Elements identified as criteria for vulnerability include ignorance, need or distress.[8]
Community Standards Test
Despite their interests in protecting vulnerable parties, the court does encourage to take responsibility for their own lives and decisions.[9] This balance is achieved by looking at the broader context in which the contract occurs through a community standards test.
A British Columbia Court of Appeal case found that a transaction between a businessman and a Native fisherman was unconscionable, and rescinded it as it impugned commercial realties.[10]
This has been followed by courts in other jurisdictions, specifically looking at the tactics used to obtain the contract. A more recent case from the B.C. Court of Appeal affirmed the use of the given views of a community,[11] but the dissent preferred assessing only if it was fair, just and reasonable.[12]
Awareness of Party
Another element of unconscionability is the potential need for the stronger party to be aware of the other’s vulnerability.
Canadian courts are largely silent on this issue, but the current status is that it is not considered material whether the stronger party was unaware of the other’s weakness, or even if they had no notice or indication that such weakness might be present.[13]
Procedurally Unconscionable
Harvesting organs from poor people in
Some of the poorest people on the planet, can they really be making an autonomous choice that by not selling the kidney they can’t buy food to eat? It’s really not a free choice of any kind.
It’s also important to note that some of the harvestees were explicitly unwilling, and all of the cases expressed signs of economic disadvantage. Dr. Kumar would have known of the obvious inequality of bargaining power between himself and the impoverished persons of
Although libertarian ideology seeks to maximize the rights of the individual, in many instances – including this one – it surpasses legal constraints. The criteria in this case and the standards of the international community at play all make this type of exploitation unconscionabile.
Religious Promises may be Binding
The new Supreme Court Case ruling, Bruker v. Marcovitz, has some interesting implications for Jewish family law.
The case was considered by The Lawyers Weekly to be the “most timely and topical” of all the appeals reviewed by the court last year.
Background 
In Judaism, a couple can only get a divorce when the man issues a sefer k’ritut, or “cutting off scroll,” more commonly known as a get.
The procedure was actually instituted to safeguard against reckless divorce, but has the consequence of leaving initiation of divorce to the husband.
To circumvent this, many Jewish couples create a contract prior to marriage stating that the woman can obtain a get on demand if the circumstances require it.
The parties in this case were married in 1969, and received a decree nici for divorce in 1980 that was finalized the following year.
The original contract stipulated that in the case of divorce they would appear before a Jewish Tribunal (Beth Deen) to receive the get. However, the defendant thereafter refused to issue the traditional get, claiming it was being used to prevent him from seeing his children.
The plaintiff still considered herself religiously married, and therefore chose not to remarry and did not receive a get until 1995, after she was no longer of childbearing age. Any children she did have during the interim would be considered by her to be illegitimate.
She sought damages in 1989 for $500,000 in breach of contract, which thereafter was increased to $1,350,000 in 1995 to reflect additional damages for lack of companionship.
The husband sought protection under s. 3 of the Quebec Charter,
Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
The Ruling
The court first commented on the religious nature of the case in a secular court. Abella, J., herself a Jewish woman, said,
The fact that a dispute has a religious aspect does not by itself make it non‑justiciable. Recognizing the enforceability by civil courts of agreements to discourage religious barriers to remarriage, addresses the gender discrimination those barriers may represent and alleviates the effects they may have on extracting unfair concessions in a civil divorce. This harmonizes with Canada’s approach to equality rights, to divorce and remarriage generally, to religious freedom, and is consistent with the approach taken by other democracies.
The court found that the contract was between two conscionable parties represented by counsel and intended to be legally enforceable, and that awarding of damages would not infringe on relgious freedoms:
The court is not asked to determine doctrinal religious issues, and there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones…
Any impairment to the husband’s religious freedom is significantly outweighed by the harm both to the wife personally and to the public’s interest in protecting fundamental values such as equality rights and autonomous choice in marriage and divorce. These, as well as the public benefit in enforcing valid and binding contractual obligations, are among the interests that outweigh the husband’s claim.
Dissent, Critique, and Commentary
Yu-Sung Soh, though supporting the majority decision, summarizes the dissent,
…the dissenting minority took a more categorical approach in refusing to intervene in private disputes of a religious nature where there is no violation of a rule recognized in positive law. The dissent held that since there had been a civil divorce between the parties, there were no legal barriers for the ex-wife in remarrying and having legitimate children. Only her religious rights as a result of religious rules were infringed and this was not a matter that the courts should determine.
The dissent essentially stated that the damages in this case were self-inflicted by the plaintiff, though admittedly based on religious conscience.
Russ Brown of UofA offered his critique,
My first impression is that I am (strongly) inclined towards the dissenting reasons of Deschamps and Charron JJ who state that judicial consideration of religious questions should be predicated on a demonstrated violation of a rule recognized in positive law.
Brown also points out that the claim for damages were based on religious, and wonders what the court would decide if an injunction for specific performance was sought instead.
However, and comment in the Star,
Religious and cultural obligations form the life experiences of Canadians who live by them, and they cannot be brushed off as “cultural” values instead of “Canadian” values. It is traditionally within the court’s jurisdiction to “ensure that members of the Canadian public are not arbitrarily disadvantaged by their religion,” Abella concludes, and this case fits comfortably within that tradition.
But the most interesting element may be the fallout of this case and its implications on Contracts Law.
Professor Daniel Cere of McGill University religion said in the National Post,
The judgment may provide some relief for Jewish women who feel trapped by the internal logic of Jewish divorce law” but warns that on the Bruker principle, the courts might gradually be “transformed from a shield to protect religious freedom into a sword to coerce particular religious undertakings.
Promissory Estoppel has not been posted on this site yet, but typically is considered in Canada a shield, i.e. a defence against proceedings, for which an injunction is the only remedy. This ruling may change that for the future.
When Contracts Go Postal
No Obligation without Acceptance
In general, a contract is not formed until there is communication of acceptance.
Carmichael v. Bank of Montreal (1972), established that the offerer must be available to receive the acceptance for the contract to be valid.
There are no contract and no obligation until the acceptance is received from the offeree.
However, there is an exception to this general principle, often called the Mailbox Rule.
The Mailbox Rule
The mailbox rule states that acceptance is provided as soon as it is posted. This means a contract is concluded before the offerer even knows that an offer has been accepted, in the interests of protecting the offeree.
Offerors can prevent this situation by stipulating a means of accceptance other than via mail in the offer. Based on Eliason v. Henshaw (1819), 4 Wheaton 225, 4 U.S. (L. Ed.) 556, the offeror has the right to dictate the terms of acceptance.
In cases where such stipulations are present, such as Holwell Securities v. Hughes, [1974] 1 W.L.R. 155, [1974] 1 All E.R. 161 (C.A.)., the mailbox rule may not be upheld.
An interesting twist to the mailbox rule is that it is still valid even if the offeror does not recieve the acceptance. In Household Fire & Carriage Accident Insurance v. Grant (1879), 4 Ex. D. 216 (C.A.)., the offeror did not even receive the notice, but was still held to the contract. Thesiger L. J. explained how the use of a caluse stipulating receipt of acceptance can further protect the offeror,
There is no doubt that the impliacitn of a complete, final, and absolutely binding contract being formed, as soon as the acceptance of an offer is posted, may in some cases lead to inconvenience and hardship…
It is impossible… to adjust conflicting rights between innocent parties.
…An offeror, if he chooses, may always make the formation of the contract which he proposes dependent upon the actual communication to himself of the acceptance.
New Technologies in the Modern World
In general, the mailbox rule is still upheld with the use of instantaneous forms of communication. But changes in correspondences have also modified the rule as well.
Brinkibon Ltd. v. Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH, [1983], demonstrated in an international contracts case using telex that the location (and jurisdiction) of acceptance is the place where the acceptance is received by the offeror.
The Electronic Commerce Act further established that electronic contracts are still valid, with components of the contract (including acceptance) able to be demonstrated electronically.
Part 2 states,
Formation and operation of contracts
20. (1) Unless the parties agree otherwise, an offer or the acceptance of an offer, or any other matter that is material to the formation or operation of a contract, may be expressed
(a) by means of an electronic document; or
(b) by an action in electronic form, including touching or clicking on an appropriately designated icon or place on a computer screen or otherwise communicating electronically in a manner that is intended to express the offer, acceptance or other matter.
(2) A contract shall not be denied legal effect or enforceability solely by reason that an electronic document was used in its formation.
But as opposed to the typical mailbox rule, where acceptance is determined at the time of postage, electronic acceptance through formats such as e-mail are presumed to be received once it enters the offeror’s information system and is capable of being retrieved.
On-line Contracts
Law school students can be particularly litigous in ambiguous areas of the law.
In Rudder v. Microsoft Corp. (1999), two recent graduates brought a class action against Microsoft for charging credit cards of MSN users.
The users had apparently agreed to such charges by clicking on an “I Agree” button.
The court found that electronic contracts are still binding, even if they have not been read in their entirety, as long as they have been acknowledged and accepted.
Some Tender Loving Care
A Contract Mind Meld
We previously mentioned our friend, the reasonable person, when determining intentions of parties entering a contract.
Intentions are important because they are required for mutual consent when entering legal relations. Both parties involved must have a common understanding of the basis and content of the contract, also known as consensus ad idem, or meeting of the minds. Domestic parties are objectively assumed to have not entered legal relations, whereas commercial entities are assumed to enter, unless there is specific information indicating the contrary.
This mutual understanding is typically resolved under the bargain theory of contract through negotiations. But there is one commercial situation where the typical process of negotiation is quite different.
A Competition for Bids
When a company is openly soliciting services from other entities, they send out a call for tenders, also known as an invitation to tender or call for bids. They then select a vendor from these competitive bids to use their goods or services.
The traditional analysis found that the call for tenders was an invitation to treat, the responding tender was the offer, and acceptance was selection of the winning bid. But this approach allowed for uncertainty in trade, in that bidders and owners could each cancel the process or circumvent the the terms of the invitation because there was no binding contract until selecting a bid.
Developments in Cases
In Harvela Investments v. Royal Trust Co of Canada, the court held the owner bound to the terms of the invitation to accept the highest bid per stated stipulations. The open tender is likened to the case in Carlil, and can be accepted by the general public.
The development of the tendering process was further refined in R. v. Ron Engineering and Construction (Eastern) Ltd., where a two contract analysis emerged to govern the process. Contract A was a unilateral contract governing the tendering process arising on the submission of a tender, and Contract B was a bilateral contract for the invitation to treat that was accepted when a tender was selected.
The two contract analysis was further refined in M.J.B. Enterprises Ltd v. Defence Construction (1951) Ltd, and demonstrated that the owner’s obligations under Contract A included only selecting a compliant tender. It also demonstrated that Contract A was also bilateral, because the owner was also responsible for returning deposits, meaning that submission of a bid alone (performance) did not conclude the contract. The owner also can reject the lowest bid, especially if taking a more nuanced approach, including the quality of work, past service, and projected timelines.
Other Forms of Invalidation
There are some other examples of how tenders can be invalid that should be kept in mind:
- not submitted before close of tenders
- not submitted on proper form
- altering tender form
- don’t have required information
- tenders conditional or qualified
- not compliance with specifications
Puffing on the Carbolic Smoke Ball
The case of the Carbolic Smoke Ball is perhaps the most famous contract case of all time, demonstrating some important fundamentals.
In Leonard v. Pepsico, Inc., 88 F.Supp.2d 116 (1996), Wood J. stated,
Long a staple of law school curricula, Carbolic Smoke Ball owes its fame not merely to “the comic and slightly mysterious object involved”… but also to its role in developing the law of unilateral offers.
Background
In Carlill v. Carbolic Smoke Ball Company [1893] 1 QB 256, the Carbolic Smoke Ball Company advertised anyone who took medication using their smoke ball product as directed would not contract influenza, guaranteed by a reward of £100.
Mrs. Carlill used the product as directed, but still caught influenza and sought the guarantee. The company rebuked the claim and said that it was not an offer.
Their rational was that Mrs. Carlill had not notified them of the acceptance of any offer.
They also claimed in their defence mere “puffery,” or exagerrated claims for promotional purposes. An offer, they claimed, cannot be made with the entire world.
Unilateral v. Bilateral Contracts
The court stated that advertisements are generally invitations to treat. This was not a contract made with the whole world, but an offer made to the whole world.
A company is able, if so foolishly inclined, to make such extravagant offers to the general public. Just because an offer is extravagant, doesn’t mean the company is not bound by it.
The advertisement in this case constituted a unilateral contract, which only require performance for acceptance, as opposed to bilateral contracts that require mutual promises.
This was confirmed by the subsequent case, Goldthorpe v. Logan, [1943] 2 DLR 519 (Ont CA), which found that if an offer is made to the public using an advertisement, any member of the public is free to lend themself to the terms and conditions.
Contemporary Cases of Puffery
In Leonard v. Pepsico, Inc., the defendant sought to claim an airplane from Pepsi based on a points program promoted in an ad.
However, in this case the judge found that the ad did not constitute an offer because no reasonable person would have seriously expected to collect on the offer of 7 million points, or expect to receive a military grade fighter jet.
Over a decade ago, the National Conference of Commissioners on Uniform State Laws sought to amend the Uniform Commercial Code in the U.S.
The intent was to shift the burden of proof to the defendants to demonstrate that a reasonable person will not normally be misled by extravagant advertising claims.
The reasonable person, a fictitious figure used by the courts, is probably the most influential persona in the Common Law system.
Resources
David A. Hoffman. (2006). The Best Puffery Article Ever. 91 IOWA LAW REVIEW.
Divisions among Private Law
Private Law can be divided into property and obligations. The latter is further divided into contracts, torts, and unjust enrichment (restitution).
The bulk of first-year courses (property, contracts and torts), are therefore comprised primarily of private law, or regulations governing the relationships between individuals.
Divisions among Contracts
The major areas of study in Contracts are enforceability, excuses for non-performance, remedies, and effects on third parties.
Components of enforceability typically include a bargain, agreed upon exchange, and constituent parts of a bargain.
Excuses for non-performance are usually characterized by mistakes, unfairness, public policy, or non-performance by the other party.
Two types of remedies exist: specific and monetary, the former consisting of an order of performance, the latter seeking compensation through money. Contracts can be distinguished from Torts in that it seeks to restore the plaintiff’s position to that of if the contract was performed, whereas Torts simply seeks out-of-pocket losses.
Areas of study within the effects on third parties include agency, or the power of one person to act on behalf of another, and assignment, the transfer of contractual rights.
3 Types of Divisions among Torts
Torts can be divided according to the defendant’s state of mind into intentional wrongs, negligence, and strict liability. Intentional Torts include assault and battery, trespass to land and goods, and conversion and detinue.
Torts can also be divided by the interests of the plaintiff: injury to the person, injury to the property, injury to the reputation, and interference with the use of land.
Yet another way of dividing Torts is by the defendant’s actions, such as liability of animals, liability for products, liability of occupiers and owners of property, and employer’s liability.
Forget About Restitution (for now)
Unjust enrichment, or restitution, is typically not covered in first-year courses, typically because it requires a thorough knowledge of the basics of Private Law.
Although not studied in depth at this time, the main categories of unjust enrichment are mistake, benefit through wrongful act or breach, benefit under compulsion, and emergent situations.
