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Roderick Bagshaw Magdalen College Michaelmas 2002 |
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Economic Torts – Lecture 1 |
Why do the Economic Torts exist? |
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a. The Wisdom of
Unifying Torts |
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Lord Atkin’s legacy, “Who, then, in law is my neighbour? … persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called into question.” The alternative, category-based incrementalism |
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A warning |
“Don’t get stuck in neutral!” |
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b. ‘Why do the economic torts exist?’ |
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The main question divides
into three |
(i) Why do we have torts protecting purely economic interests? (ii) Why are the torts which protect purely economic interests separate from the torts which protect the physical integrity of human beings, interests in land, personal property, and the like? (iii) Why are there torts (plural) protecting purely economic interests, rather than a single economic tort? |
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Trite 1 |
Torts protect what is valuableModern wealth: What’s BT worth? |
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Tort doesn’t protect everything that’s worth anything. Why not? Tort relies on a special form of protection & has to be practical. |
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Trite 2 |
Duties restrict liberty
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Trite 3 |
Torts as compromises – the value of protecting the interest against the importance of preserving the liberty |
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Three propositions about
the compromises |
1. although economic interests are valuable, many are easy to harm, and hence 2. could only be protected from harm by the most severe restrictions on liberty, and we must (a) be careful about the distribution of protection and restriction, (b) respect pre-existing compromises found elsewhere in the law, consequently, 3. the law of torts offers them less protection than some of the other interests it protects. |
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Illustrations |
(the role of invisibility in explaining 1.) |
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(2. Should we ban strikes, protests, market competition?) |
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Reflecting on question
(iii) |
(iii) Economic torts « A. It may be appropriate to set different compromises between protection and liberty for different economic interests. B. If there are concerns about the effect of such torts on liberty we may want to make special efforts to define carefully what behaviour is restricted. This may make it convenient to have some torts focused on particular forms of restrictable behaviour. |
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Evidence for A. |
Ø a tort of procuring a breach of contract separate from a tort of interference with trade by unlawful means Ø passing off protecting goodwill Ø Fatal Accidents Act protecting the economic expectancies of family dependents |
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Evidence for B. |
Ø Tort of Intimidation (unlawful threats) Ø Torts of Deceit and Injurious Falsehood (lying) Ø Torts of Conspiracy (ganging up) Ø Misfeasance in Public Office (abuse of public position) |
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Website: http://users.ox.ac. uk/~mans0322/ |