Deceit: The Lie of the Law will provide a complete and detailed account of the law of deceit as developed over the past two centuries. There has been a sharp increase in the number of deceit cases over the past decade:
25% of all recorded cases on deceit have occurred in the past decade
70 cases on deceit in the higher courts have taken place in the last 5 years alone
This new book by Peter MacDonald Eggers examines the commercial, contractual and civil relationships in which claims in deceit have been made. It includes:
A detailed review of each ingredient of an actionable deceit and its rationale
A black-letter and comprehensive account of the law
An examination of the uncertainties of the law
A consideration of the jurisprudential aspects of the tort in a self-contained chapter
Recent important cases discussed in the book:
AIC Ltd v ITS Testing Services (UK) Ltd [2006]
Crystal Palace FC (2000) Limited v Dowie [2007]
Renault UK Limited v Fleetpro Technical Services Limited [2007]
Contex Drouzhba Ltd v Wiseman [2007]
Grosvenor Casinos Ltd v National Bank of Abu Dhabi [2008]
Abu Dhabi Investment Company v H Clarkson & Company Limited [2008]
Table of Contents:
Foreward vii Preface xi Table of Cases xix Table of Legislation xxxvii
CHAPTER 1. DECEIT: NATURE, RATIONALE AND FORMULATION Introduction 1 Deceit and the House of Lords 2 The nature and rationale of the tort of deceit 5 Fraud and damage 5 The moral tort 7 Today’s morality 10 Moral distance 14 The formulation of the tort of deceit 16 The ingredients of the tort of deceit 16 Proving fraud 20 Deceit viewed against the genesis of the law of misrepresentation 25 Alternative causes of action based on a fraudulent misrepresentation 28 Deficiencies in the current law of deceit 30 Considerations affecting a restatement of the law of deceit 32
CHAPTER 2. LIES , LAW AND MORALITY Introduction 37 Lies and morality’s relationship with the law 38 Approaches to the content of a moral rule against lying 41 What is morality? 41 Fundamental principles and the relevance of reason 43 The morality of a lie 46 Lying as a social constant 46 Various moral assessments on lying 48 Absolute condemnations of lying 49 Lies are not always immoral 50 The chief elements for a moral examination of a lie 53 Expectation of truth 54 Freedom of speech 56 Damage 58 Other consequences 60 Motive 60 The morality of non-disclosures 62 The influence of morality 64
CHAPTER 3. THE REPRESENTATION Introduction 67 The nature of the representation 67 Express and implied representations 67 Representations of existing fact 70 Representations of law 72 Representations of states of mind 73 Continuing representations 74 The context of the representation 78 The representation must be false 83 Materiality 88 Deceit by non-disclosure 92
CHAPTER 4. EXAMPLES OF REPRESENTATIONS Introduction 99 Sale and purchase, leasing and other transactions concerning property 100 Sale and purchase of a business or issue or sale of shares in a company 103 Joint venture and partnership agreements 105 Letters of credit and performance bonds 106 Bills of exchange and financial investments 107 Insurance contracts 107 Credit and loan agreements 108 Credit and character references 109 Construction contracts 110 Settlement agreements and releases 110 Carriage and storage 111 Wasted expenditure 111 Cases tantamount to theft 112 Marital and familial fraud 113
CHAPTER 5. FRAUDULENT KNOWLEDGE AND FRAUDULENTINTENTION Introduction 115 Capacity 116 Fraudulent knowledge 117 The representor’s intended meaning 119 Actual knowledge 121 The second limb of fraudulent knowledge: recklessness 123 Present to the representor’s mind 127 Fraudulent intention 129 Motive 130 Intended manner of reliance 136 A defence based on justification? 140 Reconsideration of the fraudulent intention 143 Dishonesty as an ingredient of the tort 144
CHAPTER 6. THIRDPARTIES Introduction 149 Representations by third parties 149 Procuring a fraudulent misrepresentation 150 Vicarious liability 152 The agent’s representations prior to the principal’s authority 157 The agent’s personal liability 158 Representation to third parties 159
CHAPTER 7. INDUCEMENT Inducement and the resultant damage: two types of causation 167 The representation need not be the sole inducement 170 The strong and weak senses of inducement 171 Early judicial statements 171 Later judicial statements 176 The case for a requirement of strong inducement 179 The representee’s negligence or means of knowledge 182 Knowledge of the truth 188
CHAPTER 8. REMEDIES FOR DECEIT Introduction 191 Compensatory damages 191 Causation, remoteness and mitigation 192 Measure of damages 197 Date at which damages assessed 201 Loss-making and profitable transactions 203 Section 2(1) of the Misrepresentation Act 1967 207 Contributory negligence 208 Contributory deceit and public policy 210 Exemplary and aggravated damages 211 Avoidance and rescission 215 The nature and effect of the remedies 215 The legal and equitable rights 217 The traditional bars to equitable relief 221 Counter-restitution 227 Restitutionary remedies 227 Proprietary restitutionary remedies 230 Interest 233 Exclusion of liability for deceit 235 Exclusion by contract 235 Exclusion by statute 238 Statute of Frauds Amendment Act 1828 239 Housing Act 1985 241 Limitation of actions 241 The accrual of the cause of action in deceit 241 The limitation period 242
CHAPTER 9. TOWARDS ARE STATEMENT OF THE TORT OF DECEIT Introduction 247 Testing the boundaries of the tort of deceit 247 A suggested restatement of the law of deceit 252 Index 255
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