Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0010
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in ...
More
This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in principle and application. The key ingredient is malice and the chapter explores the different meanings of this concept, though noting that the typical case will involve denigration or disparagement. This tort is of limited use and is largely overshadowed by statutory provisions relating to ‘threats’ and comparative advertising. The important issue of free speech has shaped this tort and confined its application is also debated. Finally, the relationship of this tort to the unlawful means tort and the torts of defamation and passing off is analysed.Less
This chapter explores the history and ingredients of the tort of malicious falsehood. It would appear that the tort though developed from a group of related torts should now be viewed as unified in principle and application. The key ingredient is malice and the chapter explores the different meanings of this concept, though noting that the typical case will involve denigration or disparagement. This tort is of limited use and is largely overshadowed by statutory provisions relating to ‘threats’ and comparative advertising. The important issue of free speech has shaped this tort and confined its application is also debated. Finally, the relationship of this tort to the unlawful means tort and the torts of defamation and passing off is analysed.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to ...
More
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.Less
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0012
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the potential future developments of the misrepresentation economic torts: deceit, malicious falsehood, and passing off. Deceit and its satellite actions — the action for ...
More
This chapter explores the potential future developments of the misrepresentation economic torts: deceit, malicious falsehood, and passing off. Deceit and its satellite actions — the action for bribery and the actions for dishonest assistance — though useful play a limited role in the legal control of economic activity. However, there are possible areas of expansion revealed for the torts of malicious falsehood and passing off that could edge the common law liability closer to a more generalised unfair competition action. This is particularly the case with the tort of passing off: either it could become a more generalised tort of commercial misrepresentation or even transform from a misrepresentation tort into one that protects valuable intangibles.Less
This chapter explores the potential future developments of the misrepresentation economic torts: deceit, malicious falsehood, and passing off. Deceit and its satellite actions — the action for bribery and the actions for dishonest assistance — though useful play a limited role in the legal control of economic activity. However, there are possible areas of expansion revealed for the torts of malicious falsehood and passing off that could edge the common law liability closer to a more generalised unfair competition action. This is particularly the case with the tort of passing off: either it could become a more generalised tort of commercial misrepresentation or even transform from a misrepresentation tort into one that protects valuable intangibles.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic ...
More
This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic torts of inducing breach of contract, the unlawful means tort, intimidation, lawful means conspiracy, unlawful means conspiracy and the misrepresentation economic torts of deceit, malicious falsehood, and passing off. The tort of negligence is also discussed as in exceptional circumstances it may perform the function of an economic tort but it is noted that its rationale is different from the economic torts. Unlike negligence, which looks to dependency, the economic torts look to unlawful acts and offer the common law rules of the economic game. The policy issue for all these torts is whether the courts, in the absence of an action for unfair competition, should adopt an interventionist or abstentionist policy in relation to imposing liability.Less
This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic torts of inducing breach of contract, the unlawful means tort, intimidation, lawful means conspiracy, unlawful means conspiracy and the misrepresentation economic torts of deceit, malicious falsehood, and passing off. The tort of negligence is also discussed as in exceptional circumstances it may perform the function of an economic tort but it is noted that its rationale is different from the economic torts. Unlike negligence, which looks to dependency, the economic torts look to unlawful acts and offer the common law rules of the economic game. The policy issue for all these torts is whether the courts, in the absence of an action for unfair competition, should adopt an interventionist or abstentionist policy in relation to imposing liability.
