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Eric Mathis

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Why? There's no meaningful sense in which Smith is the same person he was 30 years ago, so I'm not sure what punishing him is going to achieve. Perhaps you can say he should be liable for the damages caused (although I'm not sure I'd agree), but punishing him over and above that would be madness.

Not only that, but I am far from convinced that defamation is a rights violation. If Smith makes a false statement about Jones, what right of Jones has been violated? How can Jones have a property right to his reputation, when reputations consist entirely of what others think? Does anyone wish to defend the idea that I own what you think of me?

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Why? There's no meaningful sense in which Smith is the same person he was 30 years ago, so I'm not sure what punishing him is going to achieve. Perhaps you can say he should be liable for the damages caused (although I'm not sure I'd agree), but punishing him over and above that would be madness.
That ("he should be liable for the damages caused") is what I'm proposing, and what is the case, save for the time limits. He should be punished, once, in the form of being required to pay damages. See below: it seems like you're thinking that defamation is a crime.

Maybe I'd say that after a certain time has passed, all 'rights violating' cases should become civil rather than criminal. I'm not entirely sure.
Defamation is civil, not criminal (I leave aside the status of the common-law crime of libel in Kentucky, Ashton v. Kennedy, which may have been overurned). The distinction you're making is ill-founded. Criminal cases are violations of the "rights" of the so-called public, so note that thieves are not pressed into hard labor to compensate you for their theft, and at the end of their time they have "paid their debt to society" without ever paying their debt to you.

How can Jones have a property right to his reputation, when reputations consist entirely of what others think?
I have relatively little to say about Mr. Mathis's point, other than to say that in my opinion he may be a horrible miscreant axe-murdering racist communist child-molesting professionally incompetent leprous pig-dog jerk-weasel whom I would recommend that all men of conscience shun. Just kidding, Eric. It is not totally obvious that there is a property right against untruth. In fact, I've never seen a coherent exposition of that position. Coincidentally, I was doing the defamation thing in class just a couple of hours ago, and nobody could come up with a good reason to punish defamation (in fact a couple of students invoked "sticks and stones"), other than the whine "but that would be wrong".

If I were to build such a theory, it would start with the elements of fraud. You can insist that fraud is insufficient caution in dealings, e.g. not directly verifying whether the gun was really made by Nock, and not some unskilled grunt. Radical caveat emptorism would negate the tort of fraud, and replace it with a requirement of extreme distrust and caution. One important thing about man's nature and survival by reason (the fundamental of Objectivist ethics) is that you apply reason to facts and discover conclusions that go beyond the immediately observed (so that you can survive). If your "data" are completely untrustworthy, then obviously reason is of no use to survival. Fraud is the circumstance where a person fakes reality -- represents facts as being different from what they actually are, and induces others to act on this false assumption that A is really B, rendering reason null and void. The law recognised that this kind of faking of reality is a wrong, and does not require us to be paranoid and suspicious of everyone.

If I were to learn that Smith is a child-molester, an unskilled lawyer or doctor, a thief or an axe-murderer, I would have nothing to do with him, and especially in the case of an accused criminal would refuse him admission into my store. It is true that in contemporary society, there is less and less sense of outrage or lasting consequences than there used to be even 40 years ago, so my shunning might have little effect. But in a more morally decent society, evil people would be shunned. Such systematic oprobium should not be meted out unjustly: it should be in (negative) recognition of evil deeds. Otherwise, if a man is innocent to the best of my knowledge, I will treat him as innocent, and will deal with him in business and socially.

Defamation is a falsification of reality which unjustly assigns responsibility for significant blameworthy deeds, contrary to fact. There are real consequences, namely the loss of presumed innocence, which will impede my survival in that I cannot survive in a civilized society when others deprive me of normal voluntary commercial intercourse (by which I mean business dealings), and do so with a faked version of reality (blocking reason).

I hereby retract the jerk-weasel pig-dog etc. statement. which is purely for educational purposes.

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It is not totally obvious that there is a property right against untruth. In fact, I've never seen a coherent exposition of that position. Coincidentally, I was doing the defamation thing in class just a couple of hours ago, and nobody could come up with a good reason to punish defamation (in fact a couple of students invoked "sticks and stones"), other than the whine "but that would be wrong".

If I were to build such a theory, it would start with the elements of fraud. You can insist that fraud is insufficient caution in dealings, e.g. not directly verifying whether the gun was really made by Nock, and not some unskilled grunt. Radical caveat emptorism would negate the tort of fraud, and replace it with a requirement of extreme distrust and caution. One important thing about man's nature and survival by reason (the fundamental of Objectivist ethics) is that you apply reason to facts and discover conclusions that go beyond the immediately observed (so that you can survive). If your "data" are completely untrustworthy, then obviously reason is of no use to survival. Fraud is the circumstance where a person fakes reality -- represents facts as being different from what they actually are, and induces others to act on this false assumption that A is really B, rendering reason null and void. The law recognised that this kind of faking of reality is a wrong, and does not require us to be paranoid and suspicious of everyone.

The law does not require us to be truthful about all things. I am free to state that the moon is made of green cheese -- and you are free to believe or disbelieve it. Have I defrauded you by leading you to believe that the big round object in the night sky is actually a dairy product? That could only be the case if we were involved in a contractual exchange, where in return for some consideration I offered certain representations about reality. However if you and I are not involved in any such transaction, I may deliver myself of any opinion about the world -- and you would have no moral/legal basis to make a claim against me if my opinion is untrue. If the law treated any and all mistaken opinions (“faking of reality,” if you prefer) as wrong, then it would have to put astrologers, priests, palm readers, poets and politicians behind bars.

If I were to learn that Smith is a child-molester, an unskilled lawyer or doctor, a thief or an axe-murderer, I would have nothing to do with him, and especially in the case of an accused criminal would refuse him admission into my store. It is true that in contemporary society, there is less and less sense of outrage or lasting consequences than there used to be even 40 years ago, so my shunning might have little effect. But in a more morally decent society, evil people would be shunned. Such systematic oprobium should not be meted out unjustly: it should be in (negative) recognition of evil deeds. Otherwise, if a man is innocent to the best of my knowledge, I will treat him as innocent, and will deal with him in business and socially.

Defamation is a falsification of reality which unjustly assigns responsibility for significant blameworthy deeds, contrary to fact. There are real consequences, namely the loss of presumed innocence, which will impede my survival in that I cannot survive in a civilized society when others deprive me of normal voluntary commercial intercourse (by which I mean business dealings), and do so with a faked version of reality (blocking reason).

I hereby retract the jerk-weasel pig-dog etc. statement. which is purely for educational purposes.

Suppose Smith wrongly informs Pickens that Jones is a child-molester. In consequence, Pickens refuses to hire Jones. Now under your theory, Smith’s lie is just cause for legal action because Smith has "faked reality." Now suppose Smith does not make the allegation. Suppose, instead, Pickens on his own (wrongly) reaches the conclusion that Jones is a child-molester. If we follow your theory through, we would have to say Jones has a legal claim against Pickens simply for believing the wrong thing, what you call “faking reality.” In other words, not just expressing wrong opinions but holding wrong opinions would have to be against the law in your “free” society. After all, isn’t Pickens’ mistaken belief just as much a “faked version of reality” as Smith’s libel? The premise of such a society would be that one does not have ownership over his own thoughts at all, that he must believe whatever the law tells him to believe.

Edited by Eric Mathis
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The law does not require us to be truthful about all things. I am free to state that the moon is made of green cheese -- and you are free to believe or disbelieve it.
That's true, but also a bit outlandish since I doubt many people would believe you. I'm equally "free" to lie when I testify in a trial (testimony is compulsory, btw) or when I sell a product: people are free to believe me or not, as they chose. We do have a name for it when I lie and gain something material from you (fraud), but fraud liability extends beyond the contracting parties (thus cannot be reduced to contract law). Maybe you want to eliminate all third part liability in case of fraud. The problem with that is that it's trivial to avoid all liability, by automatically inserting a third party between yourself and the customer.
However if you and I are not involved in any such transaction, I may deliver myself of any opinion about the world -- and you would have no moral/legal basis to make a claim against me if my opinion is untrue.  If the law treated any and all mistaken opinions (“faking of reality,” if you prefer) as wrong, then it would have to put astrologers, priests, palm readers, poets and politicians behind bars.
Clearly not, since such cases fail the "knowingly false" requirement. Even if we have no contractual thing going on, I still am free to express ridiculous and false opinions. Opinions are protected, as are factual mistakes and obvious hyperbole: defamation requires a knowingly false accusation. Faking is not the same as being wrong or kidding -- there is no moral sin in being wrong.
Suppose Smith wrongly informs Pickens that Jones is a child-molester.  In consequence, Pickens refuses to hire Jones. Now under your theory, Smith’s lie is just cause for legal action because Smith has "faked reality."
Indeed, it is classic defamation, so it's not just my theory, it is a fact. Smith's act is a legal wrong.
Now suppose Smith does not make the allegation.  Suppose, instead, Pickens on his own (wrongly) reaches the conclusion that Jones is a child-molester.  If we follow your theory through, we would have to say Jones has a legal claim against Pickens simply for believing the wrong thing, what you call “faking reality.”
I don't see why: Smith did nothing at all so Smith is not liable, and it never was the case that Pickens has any obligation to hire Jones. Jones may act rationally or not, as he choses. The difference is the "on his own" part.
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That's true, but also a bit outlandish since I doubt many people would believe you. I'm equally "free" to lie when I testify in a trial (testimony is compulsory, btw) or when I sell a product: people are free to believe me or not, as they chose. We do have a name for it when I lie and gain something material from you (fraud), but fraud liability extends beyond the contracting parties (thus cannot be reduced to contract law). Maybe you want to eliminate all third part liability in case of fraud. The problem with that is that it's trivial to avoid all liability, by automatically inserting a third party between yourself and the customer.

I am not familiar with the practice of bringing fraud charges against a person who is not party to a contract or exchange. Perhaps you could provide an example.

Clearly not, since such cases fail the "knowingly false" requirement. Even if we have no contractual thing going on, I still am free to express ridiculous and false opinions. Opinions are protected, as are factual mistakes and obvious hyperbole: defamation requires a knowingly false accusation. Faking is not the same as being wrong or kidding -- there is no moral sin in being wrong.

You have not shown why mistaken opinions should be protected speech, but not knowingly false statements. Earlier you wrote, “Fraud is the circumstance where a person fakes reality -- represents facts as being different from what they actually are, and induces others to act on this false assumption that A is really B, rendering reason null and void. The law recognised that this kind of faking of reality is a wrong, and does not require us to be paranoid and suspicious of everyone.” Suppose Seller A sells Buyer B a coin that A represents as being pure gold. Indeed, Seller A himself genuinely believes that the coin in question is solid gold. After the purchase, once B discovers that the coin is brass, he has grounds to sue A for fraud. It is not necessary for A to knowingly lie in order to commit fraud. He need only mistate the facts about the product he has sold.

I don't see why: Smith did nothing at all so Smith is not liable, and it never was the case that Pickens has any obligation to hire Jones. Jones may act rationally or not, as he choses. The difference is the "on his own" part.

First of all, if Pickens never had any obligation to hire Jones, then Jones cannot be viewed as an injured party in our earlier example of Smith making a false accusation about Jones to Pickens, a case which you labeled “classic defamation.” If Jones never had entitlement to employment by Pickens, then he can hardly make a case against Smith for “depriving” him of that employment. Secondly, you have not shown why faking reality on one’s “own part” should count as protected speech (or thought), but faking it in conversations with others should not. Your earlier argument had been that “I cannot survive in a civilized society when others deprive me of normal voluntary commercial intercourse (by which I mean business dealings), and do so with a faked version of reality (blocking reason).” If so, one can just as surely be denied “normal voluntary commercial intercourse” by a single person relying on false notions as by false notions communicated from one party to another. Note that I use the word “denied,” not “deprived,” as I do not regard voluntary commercial intercourse as a natural right. One has the right to engage in commerce only if one can find others who are inclined to do so.

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I am not familiar with the practice of bringing fraud charges against a person who is not party to a contract or exchange. Perhaps you could provide an example.

I am, working as I do in the medical field. We're often required to provide massive amounts of paperwork in legal cases that have nothing directly to do with us. If our paperwork is messed up, we can be liable ALSO.

I'd just like to add that one's reputation, if one is in business, can be a valuable possession, so damaging or destroying someone's reputation CAN have the effect of violating their rights, specifically their property rights.

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I am, working as I do in the medical field.  We're often required to provide massive amounts of paperwork in legal cases that have nothing directly to do with us.  If our paperwork is messed up, we can be liable ALSO.

Yes, but this paperwork is provided, presumably, as a result of a subpoena, which carries certain penalties for falsehoods. Thus, to rephrase my earlier statement, other than perjury, I am not familiar with the practice of bringing fraud charges against a person who is not party to a contract or exchange.

I'd just like to add that one's reputation, if one is in business, can be a valuable possession, so damaging or destroying someone's reputation CAN have the effect of violating their rights, specifically their property rights.

Yes, but as I stated earlier, one cannot own one’s reputation because it consists entirely of what others think. To claim that Jones has a property right to his reputation is to argue that Jones can legitimately regulate what others think of him. Does anyone wish to defend the idea that I own what you think of me?

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Yes, but as I stated earlier, one cannot own one’s reputation because it consists entirely of what others think.  To claim that Jones has a property right to his reputation is to argue that Jones can legitimately regulate what others think of him. Does anyone wish to defend the idea that I own what you think of me?

Reputation does NOT only consist of "what others think". Your reputation consists of the FACTS about your past performance. It's also not defamation for someone to say "I hate X's guts!". That's what he thinks. If he says that "X is a serial rapist!" that may be in defiance of facts, and if he presents it as fact, it may harm you.

It is against misrepresentation of the FACTS of your record that you require legal recourse.

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Reputation does NOT only consist of "what others think".  Your reputation consists of the FACTS about your past performance.

This contradicts every dictionary definition I’ve been able to find for “reputation”:

http://dictionary.reference.com/search?q=reputation

“The general estimation in which a person is held by the public.”

http://www.m-w.com/cgi-bin/dictionary?book...ation&x=15&y=15

“Overall quality or character as seen or judged by people in general.”

http://dictionary.cambridge.org/define.asp...67113&dict=CALD

“The opinion that people in general have about someone or something, or how much respect or admiration someone or something receives, based on past behaviour or character.”

http://www.wordsmyth.net/live/home.php?scr...matchtype=exact

“The estimation or respect in which a person is held by others.”

http://www.bartleby.com/61/88/R0168800.html

“The general estimation in which a person is held by the public.”

http://www.infoplease.com/ipd/A0623907.html

“The estimation in which a person or thing is held, esp. by the community or the public generally.”

But for the sake of argument let us suppose that you are right, and stipulate that one’s reputation does consist of “the FACTS about your past performance.” Suppose Mr. Brown is a lawyer who has never lost a case. That fact would hardly be changed by Mr. Green’s false allegation that Brown has lost many cases. If Brown’s reputation consists of the facts about his past performance, then his reputation remains intact regardless of what Green states. In other words, saying something doesn't make it so.

It's also not defamation for someone to say "I hate X's guts!".  That's what he thinks.  If he says that "X is a serial rapist!" that may be in defiance of facts, and if he presents it as fact, it may harm you.

It is against misrepresentation of the FACTS of your record that you require legal recourse.

First of all, one is not protected from all “harms” in a laissez faire society. One is protected only from violations of one’s person and property. For example, laissez faire provides no legal recourse for the lovesick boy suffering from the “harm” caused by a girl who rebuffs him, nor for the “harm” to the investor who sinks his fortune into a stock just before it goes south. Furthermore, unless voluntarily under a contractual obligation to do so, no one has any duty to speak the truth. As long as my mouth belongs to me, I may allow it to utter any thought, no matter how far from the truth it roams. If you want truth, then be prepared to pay for it. There ain't no such thing as a free lunch.

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That's true, but also a bit outlandish since I doubt many people would believe you [that the moon is made of green cheese].

I wonder if one (only one) characteristic of defamation is that it must be such that a "reasonable man" would be expected to trust it. Whether it is outlandish is one sub-part of this. Another is that the same thing said by one person may be defamation but said by another it may not be?

I might have a case against an investment advisor who gives me bad advice, but not against my granny who told me to buy stock in Harrah's casino! Sometimes one sees a disclaimer on a web-site, saying "this is not legal advice" or "this is not investment advice". The disclaimer seems to be saying: do not trust me enough that you'll sue me if I'm wrong.

The above could also be converted to a "third party" example, where a writer tells people to sell stock of a particular company and the company then tries to sue the advisor.

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I wonder if one (only one) characteristic of defamation is that it must be such that a "reasonable man" would be expected to trust it. Whether it is outlandish is one sub-part of this. Another is that the same thing said by one person may be defamation but said by another it may not be?
Actually, the green cheese issue wasn't about defamation (rather is was about a putative obligation to always tell the truth), but my guess is that there has to be a "credibility" to the claim. In the handful of cases I've looked at, the claim was quite believable though false. I think the underpinning of the opinion defense is that if it's not believable, then it must be an opinion rather than a statement of fact. If a reasonable man might believe it, then you have a chance for arguing damages. Or, to put it another way, in order to prove actual damage, somebody has to believe it.
I might have a case against an investment advisor who gives me bad advice, but not against my granny who told me to buy stock in Harrah's casino! Sometimes one sees a disclaimer on a web-site, saying "this is not legal advice" or "this is not investment advice". The disclaimer seems to be saying: do not trust me enough that you'll sue me if I'm wrong.
Or, you might have a case against your granny and not against an investment broker, if you have a contractual relation with your granny who is reckless in her advice qua investment specialist, whereas the neighbor who has no contractual relationship with you but happens to be an investment broker is (theoretically) free to say all sorts of lies to you. Unless, of course, the government has interfered with natural contractual rights.
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Suppose Seller A sells Buyer B a coin that A represents as being pure gold.  Indeed, Seller A himself genuinely believes that the coin in question is solid gold.  After the purchase, once B discovers that the coin is brass, he has grounds to sue A for fraud.  It is not necessary for A to knowingly lie in order to commit fraud.  He need only mistate the facts about the product he has sold.

I think fraud requires a knowing and intentional misrepresentation. If you have a citation to the contrary, I'm all ears. As much as I wish I did (that's not sarcastic, I like reading stuff like this), I don't have the Restatement of Torts in front of me.

I think also that the fact misrepresented must be material. (In your example, it likely is.)

Your Buyer probably does have a claim for breach of warranty, and might also be able to revoke his acceptance of the coin (called "rescission" at common law).

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In re defamation, let's assume for a moment that it is a proper theory of recovery.

Should threatened defamation--e.g. "I'm going to tell your wife that you're having an affair"-- be actionable? After all, a threat of force is force. It seems reasonable to me initially.

I see some practical issues with this. They are only practical, and I don't think do much to answer the question whether threatened defamation is a proper theory of recovery. But they are interesting to consider, and are questions that would have to be answered by the law writers.

First, if it is actionable, what, if any, are the recoverable damages? Prospective damages? Actual damages, e.g. emotional distress-type stuff? What about equitable relief, if any?

Second, what should somebody have to prove in order to recover? Is it purely an objective determination, only actionable if a reasonable person would have believed the threat was real? Should there be a subjective element as well, meaning should the victim actually have to believe the threat will be acted on?

Third, what does this do to the statute of limitations? When does the claim accrue? With actual defamation, you can fix a point in time--when the defamatory matter is published. And once the matter is published, there's no taking it back, no lingering effects. In other words, the harm is complete.

With a threat, do you run the statute when the threat is made? The effects of the threat may linger for a while. In other words, the harm is not complete because the defamer can still actually publish the defamatory matter. Do you begin the statute again where there is a renewal of the threat?

Neat stuff. Thanks for the brain food, people.

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I think fraud requires a knowing and intentional misrepresentation.

....

Your Buyer probably does have a claim for breach of warranty, and might also be able to revoke his acceptance of the coin (called "rescission" at common law).

The kind of case that set this off was supposed to be analogous to Langridge v. Levy and its spawn. More clearly stated: A fraudulently sells a coin to B; B innocently resells the coin to C. As I get it, strict privity of contract would say that A has no duty to C (or indeed knowledge of) and therefore C cannot recover from A, and furthermore since the scienter requirement isn't satisfied, C cannot recover from B, therefore C is SOAL. Basically, if you violate someone's rights but the rights violation has been "transferred" to another person, has the violation thereby been nullified? I sez "no", the violator remains responsible until the (current) victim is made whole.
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Should threatened defamation--e.g. "I'm going to tell your wife that you're having an affair"-- be actionable?  After all, a threat of force is force. It seems reasonable to me initially.
Assuming the requirements are met -- it is indeed recognised as a felony in Ohio (ORC 2905.11(A)(5) and 2905.12(A)(3)). However this law goes beyond defamation, since it does not distinguish between false statements and true statements. I suspect that threat and coersion laws are generally messed up on this point.
First, if it is actionable, what, if any, are the recoverable damages?  Prospective damages?  Actual damages, e.g. emotional distress-type stuff?  What about equitable relief, if any?
In this case, the damages should be in terms of the purpose of the threat (for example "if you don't give me $100,000"). This is a problem with the Ohio law, since it is framed in terms of a purpose. That means, at least potentially, that a defense could be that you had no purpose w.r.t. getting the victim to act. The Ohio language says "No person, with purpose to coerce another into taking or refraining from action concerning which the other person has a legal freedom of choice, shall...", which entails that threatening defamation for pure fun is not criminal. Although I'm not a fan of "pain and suffering", the issue for the jury would be "How much pain and suffering did Jones cause Smith by threatening to smear his reputation?".
Second, what should somebody have to prove in order to recover?  Is it purely an objective determination, only actionable if a reasonable person would have believed the threat was real?  Should there be a subjective element as well, meaning should the victim actually have to believe the threat will be acted on?
Apart from the falsity requirement and the proof that the threat was made (and understood), I think the proper requirement is that the victim actually believed the threat. Of couse that is not directly provable, which is where the reasonable man test comes in; OTOH it is defeasible, given a statement from the supposed victim like "I can't believe that Jones actually thinks I care about that".
With a threat, do you run the statute when the threat is made?

The effects of the threat may linger for a while.  In other words, the harm is not complete because the defamer can still actually publish the defamatory matter. Do you begin the statute again where there is a renewal of the threat?

That seems right, as long as the concept is pinned down to what us linguini call "uptake", i.e. not just the utterance of the threat, but the receipt and comprehension of the threat. If the threat is re-issued, it's a new and separate action. Of course, there is the problem that if you are to take action against a person for threatening you, you essentially have to self-publish the defamation in your allegation, which would probably render you libel proof on that issue.
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The kind of case that set this off was supposed to be analogous to Langridge v. Levy and its spawn. More clearly stated: A fraudulently sells a coin to B; B innocently resells the coin to C. As I get it, strict privity of contract would say that A has no duty to C (or indeed knowledge of) and therefore C cannot recover from A, and furthermore since the scienter requirement isn't satisfied, C cannot recover from B, therefore C is SOAL.

I don't recall this case, but it seems to me that C's recovery from B should be something other fraud. For example, see below.

Basically, if you violate someone's rights but the rights violation has been "transferred" to another person, has the violation thereby been nullified? I sez "no", the violator remains responsible until the (current) victim is made whole.

My analysis under UCC Art. 2 is that C could recover for breach of warranty from B, and then B could recover from A. I don't remember the finer points of civil procedure, but I wonder if this is something that would all be resolved in one case. Some sort of interpleader thing or something.

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Of course, there is the problem that if you are to take action against a person for threatening you, you essentially have to self-publish the defamation in your allegation . . .

And there's the rub in a slightly different context: threatening an invasion of privacy by publication of embarrassing private facts. For this particular tort, the facts are true. (If they were false, it'd just be defamation. Whether or not it's right, the truth is the point of this tort.)

But if you want to recover based on a threat to publish the embarrassing facts, as a few courts allow, you have to publish the embarrassing facts. Bummer.

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I don't recall this case, but it seems to me that C's recovery from B should be something other fraud.

My analysis under UCC Art. 2 is that C could recover for breach of warranty from B, and then B could recover from A.  I don't remember the finer points of civil procedure, but I wonder if this is something that would all be resolved in one case.  Some sort of interpleader thing or something.

The case is here. It's more complex than simple fraud. The thing is, I don't see how C can recover from B given that B doesn't have a clue that there is a problem. Well, we do have to look at the warranty. If we're looking at an implicit warranty, I don't see much hope for recovery, since B (by assumption) thinks the coin is indeed a gold coin, based on A's representation. OTOH if there is an explicit warranty that goes beyond the reasonable caution etc. standards, then there could be a cause. For example, if B asserts that the coin has been tested and certified as being solid gold etc. but this was not done, that is actual fraud on B's part. On the third hand, I am highly mistrustful of the reasonable man, who seems to be bloody irrational. For example, if the coin is solid brass, then I don't think it is reasonable to say that anyone has been defrauded. I mean, maybe, but how can you not be able to tell the difference between brass and gold? Okay, you're dealing with two utter idiot second and third parties who have lived all of their lives on deserted islands, with no knowledge of brass or gold. Still, setting aside the concretes of distinguishing brass and gold, the danger of an implied warranty is that you don't know what you've implied by the act of being in business. The starting assumption should be that there is no warranty, and the assumption can be refuted with evidence. This prevents the current absurdity that everything is implicitly promised, unless you explicitly make a disclaimer.
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If we're looking at an implicit warranty, I don't see much hope for recovery, since B (by assumption) thinks the coin is indeed a gold coin, based on A's representation.

My UCC analysis reveals that B's mistaken knowledge is irrelevant. Under 2-314, if he is a merchant with respect to goods of that kind, etc., then there is an implied warranty of merchantability unless disclaimed under 2-316.

OTOH if there is an explicit warranty. . .  For example, if B asserts that the coin has been tested and certified as being solid gold etc. but this was not done, that is actual fraud on B's part.
And a breach of express warranty.

For example, if the coin is solid brass, then I don't think it is reasonable to say that anyone has been defrauded.

Assuming the buyer actually sees the coin, I would probably agree.

Still, setting aside the concretes of distinguishing brass and gold, the danger of an implied warranty is that you don't know what you've implied by the act of being in business.
I might disagree with this. 2-314 lists criteria for the implied warranty of merchantability. It also has a limitation: it only applies to a merchant with respect to goods of the kind. I think if we consider context, that is, a merchant with respect to goods of the kind, I think he's probably going to know things like the ordinary purpose for which the goods are used.

The starting assumption should be that there is no warranty, and the assumption can be refuted with evidence. This prevents the current absurdity that everything is implicitly promised, unless you explicitly make a disclaimer.

I don't know about any common law warranties, but in re the UCC, I don't think it's accurate to say that everything is implicitly promised. The implied warranties of merchantability and fitness for a particular purpose arise only in certain circumstances, and only create certain warranties.

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  • 7 months later...

[Merged from another thread (link) - sNerd]

While it is an unlikely scenario, perhaps its not as unlikely as you claim. Since libel and slander would presumably be legal in a laissez faire society due to their not involving force, a newspaper editor who disliked him may choose to run a frontpage story along the lines of "Nxixcxk is a child-molester!" accompanied by a big photo of his face. I assume this would result in a lot of people banning him from their property overnight.

If we eliminate libel/slander, I REALLY wouldnt want to annoy someone like Rupert Murdoch.

Force can also be non-physical... such as coercion. Protecting an individual's mental / physical integrity is an important issue. Therefore, I'm not sure an unfounded article saying "Nxixcxk is a child-molester!" would be allowed to exist without the author being sued for defamation of character or something such as that. An individual's personal sphere does not only include his / her physical safety and decision-making activities, but also their mental integrity. Otherwise you could call someone 10,000,000 times a day and yell, "you're a child molester" and hang up...

I'm not sure why libel and slander would be legal in an Objectivist society... please explain.

Issack

Edited by softwareNerd
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Since libel and slander would presumably be legal in a laissez faire society due to their not involving force.

:thumbsup:

What on earth made you presume such a thing?!?

Whose idea of LFC are you using? Under every one I've ever heard of (including ESPECIALLY the Objectivist one), fraud is recognized as a crime.

Edited by Inspector
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What on earth made you presume such a thing?!?

Whose idea of LFC are you using? Under every one I've ever heard of (including ESPECIALLY the Objectivist one), fraud is recognized as a crime.

We've had a bit of this discussion here and there, and I am totally unsatisfied with all answers (to this day). Fraud is certainly legally actionable, but defamation is not fraud. If I falsely represent certain goods and services and you accept an ageement with me on the basis of my fraudulent offer, then I have violated the agreement. If I simply declare that Nixon is a child molester, there is no contract between us. Nixon did not give something to me based on my knowing false representation, hence no breach.

Since the foundation for making defamation civilly actionable is rocky, I don't see any hope that you can argue that it should actually be a crime, which even now it is not. If you can argue that you have a legally enforceable obligation to always tell the truth, that would subsume fraud, but that would be improper spillage from morality into law. If you've got an argument that there should be such a legal requirement, I'm all ears.

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I thought that Libel and Slander were against current US law. Was I mistaken?

Second, I see your point. Without a contract, it would be defamation, not fraud.

Third, I do think that defamation (i.e. Libel or Slander) that results in provable damages should be a crime, although as I am not a legal expert, I do not know how this would be accomplished. (and as such, I do not think I can help you with the "rockiness" of it)

Edited by Inspector
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In a real Objectivist world, no one would care to lie about another person and the person being lied about would not care either way... I'm reminded of Dagny's affair with Rearden and how she didn't care if anyone knew...

However, law and morality must meet at some point. Lying about someone is morally culpable, but the issue at hand is, should it be legally culpable as well? My simple answer would be: depending on the damage caused by the lies / slander / libel. Using DO's example, if I say Nixon is a child molester, thereby causing Nixon to lose an election due to this lie (and this can be proved), then it should be actionable. By spreading such a lie, you unduly alter the interaction between the person you lied about and all those he/she interacts with.

If I spread a rumour that X is a thief who steals cars and the story is carried by all newspapers in a city and all citizens read it... next time X walks into a car dealership, chances are he will not be able to buy a car.

DO, I think the foundation of making slander / libel legally actionable rests in their power to unduly inhibit the personal sphere of autonomy of an individual. Now that X is known to be a car thief (wrongly) and because of this no one is willing to sell him a car, the person who started the rumour has limited X's ability to buy a car, much analogous to having X falsely imprisoned in a room. Slander and libel put up barriers which are morally and legally culpable.

Issack

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I thought that Libel and Slander were against current US law. Was I mistaken?
Yes, in the ordinary sense of "against the law", that is, it's not a crime. It was a crime in Kentucky, as I understand, until some time around 1960 when it was flushed down the pipes by the courts, but it was a "common law crime" meaning there was no statute but it was still a crime (analogous to the deal with murder in the UK, in that at least as far as I know there is still no explicit statute against murder). But otherwise, it's strictly a civil matter.
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