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Wilful default: Difference between revisions
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}}The one, bastard part of that sainted triplet “[[negligence, fraud or wilful default]]” without an obvious legal ''meaning''. Some | }}The one, bastard part of that sainted triplet “[[negligence, fraud or wilful default]]” without an obvious legal ''meaning''. Some call it [[wilful misconduct]], which is even ''more'' baffling.<ref>Though not without legal [[precedent]]: see [[wilful misconduct]] for more discussion.</ref> | ||
Whereas “[[negligence]]” and “[[fraud]]” are terms of forensic ''science'' — the former hailing from the common law of [[tort]], being the failure to observe the standards of the [[Reasonable person|sort of fellow one might encounter]] on the [[Man on the Clapham Omnibus|Clapham omnibus]]; the latter hailing from criminal law<ref>Interestingly, the there is no [[tort|''tort'']] of fraud; it is called “[[deceit]]” and was ably summarised in {{casenote1|The Kriti Palm|2006|EWCACiv|1601}} as follows: “The elements of the tort of [[deceit]] are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”</ref> and involving a false representation, knowingly made, with the intent to profit from it — “[[wilful default]]” has no such lineage, and is wanting even as a work of legal ''art''. | Whereas “[[negligence]]” and “[[fraud]]” are terms of forensic ''science'' — the former hailing from the common law of [[tort]], being the failure to observe the standards of the [[Reasonable person|sort of fellow one might encounter]] on the [[Man on the Clapham Omnibus|Clapham omnibus]]; the latter hailing from criminal law<ref>Interestingly, the there is no [[tort|''tort'']] of fraud; it is called “[[deceit]]” and was ably summarised in {{casenote1|The Kriti Palm|2006|EWCACiv|1601}} as follows: “The elements of the tort of [[deceit]] are well known. In essence they require (1) a representation, which is (2) false, (3) dishonestly made, and (4) intended to be relied on and in fact relied on.”</ref> and involving a false representation, knowingly made, with the intent to profit from it — “[[wilful default]]” has no such lineage, and is wanting even as a work of legal ''art''. | ||