Date: Tue, 27 Feb 2007 14:12

From: Lionel Smith

Subject: Waiver of tort

One might also suggest that the sentence, "The appellants’ submission ignores the conceptual basis of tort law, which is restitutionary", is at least obscure and arguably an absurd thing for the Ont CA to say.

On 26/2/07 22:36, "David Cheifetz" wrote:

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.

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