MISLEADING APPEARANCES IN THE TORT OF DECEIT

Abstract

AbstractThis article explores certain key features of the tort of deceit which, if looked at only superficially, are apt to mislead as to the gist, nature, and province of this tort. In particular, the article addresses three main issues. The first is the way in which the reliance test used in this tort comes apart from a simple (more familiar) test of causation, and why this has important theoretical ramifications. Secondly, the article seeks to reveal the true gist and province of this tort. In this regard, it is argued that it is a mistake – made by many – to suppose that the infliction of economic loss forms the gist of deceit. Instead, it is suggested that the tort is better seen as being rights-based and that, consequently, it ought not to be seen as a specifically economic tort, but rather as one which protects the victim's decision-making autonomy. Lastly, the article unearths the juristic explanation for the curious fact that, in the tort of deceit, the operation of the contributory negligence defence is excluded while the mitigation principle is applied openly. (The incoherence here inheres in the fact that both these principles are animated by the self-same concern: a desire to exclude the recovery of losses that are attributable to an unreasonable lack of self-regard on the part of the claimant.) The juristic explanation I unearth is then subjected to critical analysis in the course of which I suggest that we ought not to confuse explanation with justification. I conclude that there is no sound reason of principle to exclude the operation of the contributory negligence defence in this tort.