Commercial Torts Flashcards
What are the three commercial torts?
(2 MBE)
(1 NY-only)
- Fraud
- Inducing a breach of contract
- Prima Facie Tort (NY ONLY)
NY RULE: What are the elements of Prima Facie Tort?
- Intentional infliction of pecuniary harm
- Without justification (spite, rather than own interest)
What are the five elements of fraud?
- Seller must make a misrepresentation of fact
- Intentionally or recklessly, (with)
- Intent to induce reliance (that)
- (Does induce) Reliance (and causes)
- Economic damage
What are the four elements for inducing a breach of contract?
- Valid contract between P and third party
- D knows of the contract
- D persuades the third party to break the contract
- Third party breaks the contract
How do you induce reliance for the tort of inducing breach of contract?
Deliberate misrepresentation aimed at getting a buyer to buy something
What defense is available for the tort of inducing a breach of contract?
The defense to inducing a breach of contract is PRIVILEGE.
Privilege is a (1) special relationship between D and 3d party that (2) involves giving advice (accountants, lawyers, family, clergy, etc)
[N.B. The person giving advice has a privilege]
What are two important examples of conduct by D that does not constitute misrepresentation?
Statements of opinion
Silence
What are the elements for malicious prosecution tort?
- D institutes a criminal or civil action against P
- Case is determined in favor of P
- Court determines that P had no probable cause, i.e., case was lacking in merit
- Court determines case was brought for improper purpose
- P has some kind of damage (almost always legal fees)
Who is immune from liability for malicious prosecution?
Criminal Prosecutors
What are two examples of NY prima facie tort?
- NY radio station favors its own records and does not play the records of competitors
- Selling products at a loss just to drive a rival out of business
