Martes, Oktubre 15, 2013

Consumer Rights: Economic Torts...by Jolito Ortizo Padilla


 
Defining Torts is not an easy matter and one has to be careful not to define it broadly so as to encompass matters other than torts or define it narrowly so as to exclude some torts. Two contrasting definitions of tort are offered; one by Salmond, the other by Professor Winfield. They represent different school of thoughts:

Salmon defines a tort as " a civil wrong for which the remedy is a common law action for unliquidated damages , and which is not exclusively the breach of a contract or a breach of trust or other merely equitable obligation.

The late Professor Winfield contended that" all tortious  liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally, and its breach is redressable by an action for unliquidated damages.

Both these definitions refer to unliquidated damages. Damages are unliquidated when they are not predetermined or pro-estimated (as they are, for example, in an action in contract to recover a debt) but are determined at the absolute discretion of the court.

One school maintains that there is a "law of torts" which consists of a number of specific torts and to succeed in an action you must show that the alleged wrong falls within the scope of one or more torts. The other school maintains that there is a "law of tort" (not torts) based on a general principle of liability and all harm is actionable per se  unless the defendant can show a just cause or excuse. There are no inherent contradictions between the two school of thought as both accept the new categories of torts may be created and the existing law can be expanded to bring new wrongs within its confines. As Professor Glanville Williams puts it: To say that the law can be collected into pigeon- holes does not mean that those pigeon-holes may not be capacious , nor does it mean that they are incapable of being added into.

There is a large number of recognized and listed torts and these will be looked at individually like negligence, liability of occupiers of premises, strict liability, trespass to property, nuisance, defamation, and miscellaneous torts of conspiracy, deceit and injurious falsehood.

However, we may focus on the Miscellaneous torts which we described as economic torts , in that their effect is to harm the plaintiff economically. They maybe listed as conspiracy, deceit or fraud and malicious or injurious falsehood.

Conspiracy
This tort is committed when two or more persons intentionally and without lawful justification combine together to injure the plaintiff , or do unlawful acts that result in injury to the plaintiff. To succeed in an action the plaintiff must prove that the predominant purpose of the defendants was to combine together unlawfully to cause him economic damage. If , however the defendants had combined together to further their own interests, e.g. to defend the interests of the union members, and economic damage was a consequence , no action for conspiracy will succeed. In Crofter Hand Woven Harris Tweed Co. Ltd. vs. Veitch (1942) it was held that the action of the members of a union to refuse to load cheaper tweed made from mainland yarn in order to protect the member's interest was not a conspiracy to inflict damage on the plaintiffs, If overall objective of a combination is put forward or defend the trade of those who enter into it then no wrong results despite damage to the plaintiff (Sorrel vs. Smith, 1956).

Deceit or Fraud
This tort is committed when a person acts to his detriment relying on a fraudulent misrepresentation of another. The essential requirements are a false representation is made which must be a statement of fact, the person making the representation knows it to be false or does not believe it to be true or is reckless about it, not caring whether it is true or false, misrepresentation is intended to be acted upon and the person to whom the misrepresentation is made has acted upon it.

Injurious falsehood
Whereas in deceit and defamation damage is done to a plaintiff's reputation , in injurious falsehood a tort is committed against the plaintiff's business interest. An injurious falsehood is a false statement , made maliciously about a plaintiffs business interests whereby other persons are deceived, thereby causing damage to the plaintiff. The word "maliciously" means "from improper motive". Types of injurious falsehood are as follows:


  • Slander of title and goods. This arises when doubts are cast through the action of the defendant on the plaintiff's title to real or personal property, patents and copyrights, the quality of his goods or products. (Wren vs. Weild, 1948). According to the Defamation Act , 1952, no special damage need to be proved by a plaintiff in an action for malicious falsehood. Puffs and mere sales talk in general terms , although untrue, may not be injurious falsehood e,g, to say your products are superior quality to those of your competitors. The test is that if a reasonable man takes a statement seriously it is slanderous. (De Beers Abrasive Products Ltd. vs. International Electric Co. of New York Ltd, 1975)
  • Slander of plaintiff;s trade or business. It is actionable to imply in a newspaper or other published material that a plaintiffs has gone out of the business with the result that the plaintiff's trade suffer. (Radcliffe vs. Evans, 1907)
  • Passing off. This consists of a deliberate act of the defendant to mislead others into believing that the defendant's goods are those of the plaintiff. In doing so the defendant takes on unfair advantage of the plaintiff's trade or business. The tort may take the form of a statement that the business of the plaintiff is the defendant, Marketing under the plaintiff's trade name, using the plaintiff's trademark especially unregistered trade marks, since statutory protection is given to registered trademarks under the Trade Marks Act, 1938 and the trademarks amendment Act 0f 1984 and imitating the presentation or appearance of the plaintiff's goods (J Bollinger vs, Costa Brava Wine Ltd. , 1960).
The remedies for torts of this kind are injunctions to restrain the falsehood or unfair practice and/images. Damages will reflect not only the economic loss (if any) suffered, but also compensation for loss of reputation and ill-will caused by the behavior of the defendant in misleading potential customers.

                                           Copyright Infringement is Punishable by Law


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