Deceit is a false statement of the facts made by the one person to the another
knowingly or recklessly, with the intent that, the other person should act up
on it which he does it and sustains damage.
The origin of this tort may be
traced to the early English writ of the deceit ( brave de deceptions ) which
was applied to cases of the false personation and abuse of the legal procedure.
Palsey vs. Freeman:
In the above mentioned case, the
plaintiff gave a credit to the extent of 2600 pound to a person ‘X’ on the
assurance of the solvency given by the defendant and subsequently sustained the
loss on the account of the insolvency of ‘X’. The assurance given by the
defendant was false and he knew that it was false. The plaintiff sued in the
tort for the deceit and the defendant was held liable.
· Essentials Ingredients of
Deceit:-
In order to constitute the wrong
of the deceit there should be some essential factors. The essential
ingredients of the deceit are as follows:
1. A false statement of the fact or the representation by the
defendant;
2. He should have made it with the intent that the plaintiff should act
upon it;
3. The plaintiff must have acted on it; and
4. There must have sustained the damage.
The party who makes the
representation is called the representator and the party to whom the
representation is made is called the representee. The representation may be the
oral or the written or through conduct.
Eg: If a
person who is not really an advocate goes to a court of the law with the
lawyer’s gown on, and acts as an advocate thereby receiving the remuneration
from the illiterate clients, he will be liable for the tort of deceit.
Representation will include the
tacit conduct, “No doubt conduct may amount to the representation as clearly as
the words.” The term fact is not limited to the mere objective fact but
would include all the cases of the subjective belief as well.
Edgington vs. Fitzmaurice:
In the above mentioned case,
where the directors of a company issued a prospectus inviting the subscription
for debentures, stating that the object of the loan was to enable them to
enlarge their trade premises and purchase the additional horses and vans and
develop the trade of the company, whereas in the fact the object was to enable
them to meet the pressing liabilities, it was held that the misstatement of the
purpose to which they intended to devote the money was sufficient to the base
an action of the deceit.
The Promise and the Deceit:
The distinction between the
promise and the deceit are as follows:
A promise is really a statement
of the fact, for it is a statement of a present intention as to the future.
Every promisor impliedly represents that he has at the moment of making the
promise the intention of fulfilling the obligation that he is undertaking, and
if it can be shown that no such intention existed in his mind at that moment,
he is liable for the misrepresentation.
The opinion and the
Misrepresentation:-
An expression of the opinion not
honestly entertained and intended to be acted upon cannot be regarded otherwise
than as a fraud.
Misrepresentation is of 2
types or kinds, being either fraudulent or innocent, that is, it may either
amount to a wilful and conscious falsehood intended to deceive the representee
or it may be merely an honest mistake on the part of the representator by which
the representee is misled, though not deceived.
The first type or kind alone
constitutes the fraud and the second will only be innocent
misrepresentation which may invalidate a contract but will not amount to a
tort.
The absence of any genuine belief
by the representator in the truth of the statement made by him is an essential
condition of the deceit.
A fraudulent statement is the one
which a person makes either knowing it to be untrue and reckless, that is, not
caring to know whether it is true or not. But from this statement we must not
infer that the negligence may amount to fraud. That is not so, for these two states
of the mind are mutually exclusive. The test is subjective and not objective.
In this connection the law does not recognise any sort of the constructive
fraud which is in reality merely negligence.
The rule in Derry vs. Peek: -
In the above mentioned
case, it had been held by the House of the Lords that, the law requires all the
men to be honest in their statements to the others but does not require them to
be careful, save in the special cases where such a duty is imposed for the
special reasons. The facts of the case were as follows:
The directors of a tramway
company issued a prospectus in which they stated that they had the
parliamentary powers to use the steam in propelling their trams. In fact, the
grant of such powers was subject to the consent of the Board of Trade. The
directors honestly but mistakenly believed the giving of this consent to be
merely a formal matter. It was however refused. The company was wound up in
consequence and the plaintiff, who had bought the shares in it on the faith of
the prospectus, instituted an action for the deceit against the directors. The
House of the Lords reversing the decision of the Court of Appeal, gave judgment
for the defendants. They held that a false statement made carelessly and
without reasonable ground for believing it to be true could not be fraud ,
although it might furnish the fresh evidence of it. Those who put before the
public a prospectus to induce them to embark their money in a commercial
enterprise ought to be vigilant to see that it contains such representations
only as are in the strict accordance with the fact.
The essentials of the Fraud are as follows:
First, in
order to sustain an action of deceit, there must be proof of the fraud and
nothing short of that will suffice. Secondly, the fraud is proved
when it is shown that a false representation has been made: ( a ) knowingly, or
( b )without the belief in its truth, or ( c ) the reckless and careless
whether it to be true or false. To prevent a false statement from being fraudulent,
there must always be an honest belief in its truth.
A simple case of awarding the
damages for the fraud is the decision in Shelly vs. Paddock: -
In the above mentioned case,
where one Miss Shelly in England was persuaded to purchase a house in Spain by
the false representation of the defendant that he was the owner of the house.
The plaintiff paid the amount outside the U K in contravention of the exchange
control regulations. She was ignorant of this exchange restriction and as such
she was a party to an illegal transaction. Nevertheless she was held entitled
to recover the damages for the fraud of the defendant on the ground that the
parties were not equally in the wrong and the general principle that the court
would not assist a party who founded his action on an immoral or illegal act
would not apply in this case and in the circumstances it was fair and just that
the defendant should not be allowed to keep the benefit of his fraud. The
plaintiff was induced to buy the property by a fraudulent representation. He
was entitled to recover the difference between the price he paid and the actual
value of the property at the time of the sale. Subsequent events to the sale
are taken into account to determine the real value of the property at the time of
the sale, for a successful may not be discovered for quite some time, during
which the property may retain its apparent or the market value.
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NEGLIGENCE
The term negligence has two
meanings- firstly, it indicates the state of mind of a party in doing an act
and secondly, it means a conduct which the law deems wrongful. Negligence as a
tort is the breach of a legal duty to take care which results in the damage,
undesired by the defendant, to the plaintiff.
‘Negligence is the omission to do
something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of the human affairs would do or doing
something which a reasonable and prudent man would not do.’
The definition of the negligence
involves 3 constituents of it, which are as follows:
1. A
legal duty to exercise the due care on the part of the party complained of
towards the party complaining the former’s conduct within the scope of the
duty;
2. The
breach of the said legal duty; and
3. The
consequential damage.
The essentials of
negligence are as follows:
1. The
duty to take care to the plaintiff:-
It means a legal duty rather than
a mere moral, religious or a social duty. The plaintiff has to establish that
the defendant owed to him a specific legal duty to take care, of which he has
made a breach or violation. There can be no liability where there is no
pre-requisite duty.
2. The
breach of the said Duty:-
It means non observance of the due
care which is required in a particular situation. The standard of the care is
that of a reasonable or prudent man. If the defendant has acted like a
reasonably prudent man, there is no negligence on his part.
3. The
consequential damage:-
It is also necessary that the
defendant’s breach of duty must cause the damage to the plaintiff. The
plaintiff has also to show that the damage thus caused is not too remote a
consequence of the defendant’s negligence.
Eg: If
the careless driving of a car by the defendant had not resulted in any injury
to an particular person, that act by itself would not be actionable as a tort
before a court of law.
The major case laws includes:-
Donoghue vs. Stevenson:
In the above mentioned case, it
had been held that, a person is liable for all the injurious consequences of
his careless act. In this case the plaintiff, a lady was being treated by
ginger beer, by her friend. Being a dark bottle, it was unable to see the
content inside the bottle. On replenishing the glass again and again, it was
found that the bottle contained decayed remains of a dead snail. Partly by
consuming and partly by what she saw, the plaintiff got seriously ill. She sued
the manufacturer for negligence and the latter was held liable and she was awarded
compensation.
Venkatesh Iyer vs. Bombay
Hospital Trust.
The above case was concerned
about the medical negligence and the injury caused to the plaintiff due to the
negligence on the part of the hospital authorities.
Randall vs. Tarrant:
In the above mentioned case,
where there was a collision between the plaintiff’s car (which was left
stationary at the road side, while he himself walked to an adjoining field )
and the defendant’s moving tractor, the defendant, the driver, was held liable
for negligence. The Court of Appeal held that where there was a collision
between a moving vehicle and a stationary vehicle which was plainly visible the
onus was on the driver of the moving vehicle to show that he had taken all the
reasonable care.
Proof of the Negligence: Res Ipsa
Loquitor
The maxim, Res Ipsa Loquitor
means that the accidents or the facts speak for itself. When the
accident explains only one thing and that is the accident could not ordinarily
occur unless the defendant had been negligent, the law raises a presumption of
the negligence on the part of the defendant. In such a case, it is sufficient
for the plaintiff to prove the accident and nothing more.
For the maxim to apply, it is
also necessary that the event causing the accident must have been in the
control of the defendant. The essential requirements for the
application of the doctrine are as follows:
1. The thing which causes the harm must be under the control
of the defendant;
2. While under his control an accident happens which would not in the
ordinary course of things happen without negligence;
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