Date: Tue, 27 Feb 2007 03:36

From: David Cheifetz

Subject: Waiver of tort

Nobody did. Apologies for a confusing post. I mentioned 3Com v Zorin because the CA didn't see fit to suggest in para 57 that the only reason why proof of actual loss wasn't required was that the cause of action was deceit. That distinction might be implicit in "It was not necessary, in the circumstances of this case, to introduce evidence of a specific alternative third party buyer" but the statement was followed by this sentence which seems to be the explanation for why it was not necessary: "The appellants’ submission ignores the conceptual basis of tort law, which is restitutionary." That justification would apply equally to negligence. However, to be fair, the case wasn't negligence and there's no need to read the case as extending to negligence.

David

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From: Lionel Smith, Prof.
Sent: February 26, 2007 9:32 PM
Subject: Re: [RDG] ODG: Waiver of tort

I’m confused; did anyone say there can’t be a gain-based claim in tort (as opposed to arguments about whether specific torts (especially negligence) will support it)?

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