Online price list publications & confidentiality laws violation

Certain sites such as http://www.redflagdeals.com/ and http://www.shoppingfinder.ca/ provide consumers with various retailers' sales flyers pricing and as mentioned by David Canton in his blog titled "Nothing illegal about leaking sales on Net", this has caused a certain level of legal controversy.

It has been noted that some of these websites publish retailers' sales prices before even the retailers' flyers have been released. Are there any confidentiality laws or copyright laws violated here? According to David Canton, "there is no copyright violation in publishing the fact that a certain store will sell specific items at specific prices" and in connection with the confidentiality laws violation "so long as the website publishing the information has not used inappropriate means to obtain the data, that argument doesn't carry much weight."

While I tend to agree with David's position on the non-violation of copyright laws, I disagree with the argument on the confidentiality laws may not have been violated. In my perspective, "leaked" information by its nature must be considered as confidential information and any attempt made by a third party website in obtaining, disseminating or making use of such information before such price lists are made "public" is a breach of the confidentiality laws.

It would be interesting how the courts in Quebec may interpret such a situation.

For David Canton's analysis on this issue, please visit his post titled "Nothing illegal about leaking sales on Net" at: http://www.canton.elegal.ca/index.html.

Social networking sites & suicide rates?

Did you ever wonder about the effect of online Social Networking sites such as Facebook and the like on suicide rates?

Rob Hyndman brings to our attention an article written by Andre Picard titled “Holidays, suicide and Hope” discussing the suicide rates during Christmas. Take a look at Rob's post at http://www.robhyndman.com/2007/12/28/suicide-and-social-networks/#comment-79970.

Most cited cases of the Supreme Court of Canada

Simon Fodden makes an analysis using the Canlii database in determining the 1000 most cited cases of the Supreme Court of Canada and the two most cited, which I find very interesting, are the following:

R. v. W.(D.) [1991] 1 S.C.R. 742 cited 2336 times; and

Pushpanathan v. Canada (Minister of Citizenship and Immigration)[1998] 1 S.C.R. 982 cited 1791 times.

To read Simon's post, please visit: http://www.slaw.ca/2007/12/20/the-1000-most-cited-scc-cases/#comment-234175.

Can legal blogs be deemed as credible as legal articles?

I recently came accross a blog post titled "Legal blogs as legal scholarships?". It is a very interesting perspective in the value attributed to legal blogs inside and outside a court of law. For more details on this, you can visit http://www.slaw.ca/2007/12/20/legal-blogs-as-legal-scholarship/.

Furthermore, Mr. Tarun Jain analyses further the value of such legal blogs in distinguishing the nature of a legal blog and a legal article. You can read this well written blog by visiting http://legalperspectives.blogspot.com/2007/12/legal-blogs-versus-legal-scholarship.html.

Legal definition of “obligations”

This article must not be viewed as a legal opinion or any form of legal representation made by the author in connection with the subject matter discussed herein. Before entering into any type of commercial or private agreement, we advise that you consult with a competent legal advisor in the applicable jurisdiction to receive an accurate representation and opinion on the legal consequences taking into consideration the pertinent facts surrounding your request.

Many of us wake up in the morning and possibly use the public transportation to get to work for a full day of intensive labour, buy a cup of coffee on our way there and stop by the grocery store to purchase some groceries before heading back home. The fact of the matter is that in this example, we have entered into at least four different contracts that may be classified as transportation, labour and purchase contracts. We enter into numerous contracts on a regular basis, sometimes without even being aware of its formation, execution and extinction. The simplicity in entering into contractual relationships is a central element in the efficient functioning of our society and relationship among people providing the flexibility needed to customize every contractual provision and a legal support in its enforcement. It is in the nature of every contract to entitle the parties thereto to specific rights and impose upon the same specific obligations.

A contract is defined to be a bilateral juridical act consisting of a consensual agreement among two or several persons obligating the parties thereto to execute a certain prestation. Two conditions are necessary in the formation of a contract, the creation of legal obligations enforceable by law driven by an economic interest at the core such obligation.

In this essay, we shall consider and define the notion of “obligations” to better understand the mechanics and characteristics underlying any contractual relationship. The term obligation is most commonly used and defined to be a duty or constraint; however, in legal terms, obligation refers to the legal relationship among two or several persons requiring the accomplishment of a certain prestation as its objective. In essence, there are three components to any obligation: (1) juridical relationships (2) among legal persons (3) and patrimonial in nature.

First, by juridical relationship, it is understood that there are opposing parties to any obligation whereby such obligation can be legally enforced and sanctioned by the judicial system in the event of one party’s non-execution. To be legally enforceable, an obligation or civil obligation must be based on either the text of law or terms of a juridical act. Upon determination of the existence thereof, the judicial system or courts will ensure that the debtor fully, completely and in a timely manner satisfies and executes his or her obligation towards the creditor of such obligation.

Furthermore, an obligation must be among legal persons as prescribed by the Civil Code of Quebec who may be a physical persons or a moral person including the State and all public bodies and each party may be a creditor and a debtor simultaneously or just one or another. The objective of any legal obligation is the prestation entitling the creditor to demand its execution and obligating the debtor to execute such prestation. Ultimately, when such obligations are based on a juridical act, we refer to this act as a “contract”.

Last, obligations must be patrimonial in nature defined to be all assets, real and personal rights, and liabilities or debts of a legal person. Moreover, a legal person cannot sell, assign or transfer its patrimony but may sell, assign or transfer the assets and liabilities constituting such legal person’s patrimony. It is only upon a physical person’s death or moral person’s dissolution that the patrimony shall be assigned to the heirs or successors extinguishing completely the patrimony. Extra-patrimonial rights are one type of assets that may be found in a patrimony, having no quantifiable economic value such as the right to one’s image or dignity. We may also encounter personal rights to refer to certain rights that can only be exercised by a specific person such as the entitlement to alimony by a spouse upon divorce.

Contracts are essential to the development and evolution of the collectivity and must provide as much as freedom as possible to the market players, but within certain legal parameters, to negotiate and define each other’s rights and impose obligations on one another. The judicial system must help protect the institution of contracts in enforcing as strictly as possible the contractual terms as defined by the parties, subject to abuse and actions contravening the public order. With hundreds of thousands of contracts entered into on a daily basis, maintaining the market participant’s confidence in this institution is thus paramount and must be preserved at all times.

The necessity of a business plan

First and foremost, I would like to wish everyone, including your loved ones, a Merry Christmas and a happy New Year. May this coming year bring you health, joy, happiness and prosperity.

To give you a little background about myself, I am a practicing lawyer, graduate from the Montreal University. My areas of practice revolve around business law, commercial contracts, real estate law, franchising, leasing, family law and immigration. I have worked for several years in the financial industry being exposed to major commercial transactions among Canadian nationals and multi-nationals. Before becoming an attorney, I’ve studied business at the John Molson School of Business where I had the opportunity to learn a great deal about business and entrepreneurship and most importantly meet outstanding professors and fellow students. I am passionate about the field of law and finance and hope that, through my blog postings, I could bring these two fascinating worlds together in clear and simple terms accessible to the general public.

Now that I’ve gone over some of the housekeeping material, I would like to discuss briefly the main subject matter: the necessity of a carefully elaborated business plan for business start-ups. In today’s business and commercial environment, every market player faces tremendous competition and must carefully devise strategies and plans of action to overcome such harsh realities of continuous cut-throat rivalry in each of their respective industries. This is especially true for new entrepreneurs starting a new business having little market visibility, market share and capital resources. For a new company to survive through the launch phase, the entrepreneur must fully understand the nature of the industry, the competition, the target market, consumer behaviour etc. Most importantly, an extensive reflection must be done on his or her own capabilities and limits. This test is more commonly know as the SWOT test (Strengh, Weakness, Opportunities and Threats).

Facing such strict competition, one powerful tool available to an entrepreneur starting a business is a “business plan”. The preparation of a business plan is paramount in the launch of a new business, or to revise or even to remodel an already existing business plan, and must not be overlooked or taken lightly. The entrepreneur must take the time necessary and mobilize the necessary resources in the research, elaboration and preparation of a business plan. This process will allow the entrepreneur to conceptualize in more concrete terms all internal variables of the business model (Strengths and Weaknesses) and all external variables of the business model (Opportunities and Threats), namely perform the SWOT test.

Many tools are available on the Internet and several organizations provide support to those starting a business. I recommend that you fully make use of the facilities available to you in order to avoid any unnecessary hurdles to overcome on the way when they could have been prevented in the first place. An entrepreneur by nature will rather spend more time in what they do best which is the creation of a product or offering of a service and may, as a result, underestimate the value of a business plan. This is one mistake to avoid. One advice that I can give you is that once you have determined that your idea may be commercialized, do not cut corners and neglect the process of researching and writing your business plan, unless there’s a state of necessity whereby time will render your idea obsolete if you do not commercialize immediately.

Some may say that one can write a very fancy business plan but not have the skills and abilities to implement an idea or a concept and that an entrepreneur’s true talent lies in his or her ability to execute and not write. I on the other hand say that a business plan need not be a fancy document, it is the product of a carefully researched and thought out plan of action allowing entrepreneurs to not only sell the idea to themselves and others but to better execute and implement their idea.

If you have any questions in connection herewith, please do not hesitate to share your comments.

Amir Kafshdaran