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11 Cards in this Set
- Front
- Back
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Malicious prosecution 5 elements
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1. D's initiation or continuation of wrongful criminal proceedings against P
2. termiantion in P's favor (on merits, not procedural) 3. absence of probable cause for prosecution 4. D's improper purpose 5. Damages |
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Wrongful institution of civil proceedings
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Description sometimes used in civil setting for malicious prosecution
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Abuse of process
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improper + tortious use of a legitimate court process to obtain result which is beyond the scope or unlawful
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Trade libel (also injurious falsehood)
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1. False stmt disparaging P's goods or business
2. published by D (i.e. communicated to someone other thanP) 3. D's intent to disparage 4. scienter 5 special damages NOTE: Truth is a defense to trade libel + defammation privileges are applicable to it. |
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Interference w/ K relations
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1. D's act
2. w/ knowledge and intent to interfere (neg. not sufficient) 3. adversely affecting but not necessarily inducing a breach of 4. P's contractual rights |
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Interference w/ prospective advantage
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1. D's act
2. w/ knowledge & intent to interfere 3. adversely affecting 4. P's possibility of attaining a future economic advantage |
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Primary difference between the requriements of CL defamation + trade libel
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Trade libel--P must prove falsity--but stmt need not be defamatory
Defamation, D must establish truth as a defense (altho under modern constituional rules P sometimes must prove falsity as part of his prima facie case. |
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Prima facie case for intentional misrepresentation, fraud or deceit
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1. D's misrepresentation of material, pawt or present fact
2. Scienter 3. D's intent to induce P's reliance 4. P's actual reliance 5. P's reliance is justifiable 6. Damages flowing from reliance |
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Normally P is only justified in relying on statement of fact, not opinion. What are exceptions to this?
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1. Statement of quantity ("this tank holds 50 gallons."
2. Special relationship between parties creating trust + confidence 3. D has special knowledge or access to facts not availabe to P 4. D feigns disinterest in a transaction in which he really has an interest |
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When is nondisclosure in itself sufficient to constitute misrepresentation?
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1. presence of an affirmative duty to disclose
2. specific query about the mater 3. existence of a special (i.e. fiduciary) relationship |
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How do you measure damages for intentional misrepresentation
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benefits of the bargain damages--i.e. difference between what he paid + what he would have received had D's representation ben true.
2. consequential 3. punitive |
