Facts: The facts, in this case, are as follows: Smiley who is known and recognized as a buyer for Career Fashions entered the store of Boulevard Boutique. Boulevard Boutique is a known rival of Carrefour Fashions. Once inside, Smiley began looking at the dresses to determine the latest lines Boulevard Boutique was carrying. Maldini, the manager of Boulevard Boutique, recognized Smiley. He immediately approached Smiley and confronted him. Apparently, a heated argument ensued. Maldini then called the store detective and ordered him to keep an eye on Smiley. In the meantime, Maldini called the police and informed them that he had a suspected shoplifter in the premises. Smiley, stayed inside the boutique as he was prevented by the store detective to leave. Meanwhile, the police arrived and he was taken to the police station for questioning. He then explained to the police the reason why he was inside the boutique and he was eventually released.
Need essay sample on
We will write a custom essay sample specifically for youProceed
1) whether Smiley has a cause of action against Maldini
2) whether a suit for intentional tort may be brought by Smiley against Maldini
3) what type of conduct will constitute Intentional Infliction of Moral Distress
4) whether the conduct of Maldini constitutes tort of intentional infliction of moral distress?
5) what are the elements of Intentional Infliction of Moral Distress
6) whether Maldini has a cause of action against Smiley for entering his store despite being a buyer of a rival boutique
7) whether Maldini has a defense against the suit brought by Smiley
Common law has provided for certain standards which everyone must observe not only in the exercise of his own rights but also in the performance of his own duties. These standards are the following: a) to act with justice; b) to give everyone his due; c) and to observe honesty and good faith. Thus, even if a right may by itself be legal because it is recognized and granted by law, it may, however, become the source of some illegality if these standards are not met. The principle is that we should not abuse our rights. This means that when a right is exercised in a manner which does not conform to the standards mentioned above and damage results to another then a legal wrong is committed for which the wrongdoer must be held to be responsible. The following are the elements of abuse of rights which may result in liability for torts: a) there is a legal right or duty; b) which is exercised in bad faith; c) for the sole intent of prejudicing or injuring another. Thus, anyone who willfully or negligently in the exercise of his legal right or duty, causes damage or injury to another, is required by law to indemnify the victim for injuries suffered thereby.
It must, however, be borne in mind that there is no hard and fast rule in determining whether this principle of abuse of rights may be invoked. No rigid tests can be applied. The principle of whether or not there was the abuse of rights will have to depend on the facts and circumstances of each case.
There are several kinds of Intentional Torts. One of these so-called Intentional Torts is the Intentional Infliction of Emotional Distress. The tort of intentional infliction of emotional distress has the following elements: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous, and (3) the conduct must be the cause (4) of severe emotional distress.
Smiley has a cause of action against Maldini. The conduct of Maldini against Smiley caused him serious damage and emotional distress and it was clearly intentional.
A suit for intentional tort may be brought by Smiley against Maldini. The elements of abuse of rights are present in this case: a) there is a legal right or duty; b) which is exercised in bad faith; c) for the sole intent of prejudicing or injuring another. Maldini as the manager of Boulevard Boutique has the duty to protect the boutique against shoplifters but this duty was exercised by him in bad faith. There is only one motive for doing so which is to injure and cause damage to Smiley for being a buyer of Carrefour Boutique.
The following are the elements of Intentional Infliction of Emotional Distress: (1) the defendant must act intentionally or recklessly; (2) the defendant's conduct must be extreme and outrageous; and (3) the conduct must be the cause (4) of severe emotional distress. The act of Maldini in calling the police and telling them that he has a suspected shoplifter in his store is not only extreme and outrageous but also intentional. It caused Smiley severe emotional distress as he was not only taken by the police to the headquarters but it also caused him embarrassment and humiliation. Such was done despite having knowledge that Maldini was not in fact a shoplifter. Such act was done in full public view. Smiley was also arrested in full public view. Such act caused severe emotional distress against Smiley. Thus, the conduct of Maldini constitutes tort of intentional infliction of moral distress.
On the other hand, Maldini does not have a cause of action against Smiley. In the first place, Smiley being a buyer had the right to visit his boutique. There was nothing in the facts of this case that will show that the boutique was closed and so Smiley had a right to be there. If a store is opened then it constitutes an invitation to the public that the same is open for buyers. Secondly, clearly, Smiley was not a shoplifter. Maldini knew of such fact right from the moment he saw Smiley entered his store. Having known Smiley as a buyer of Carrefour Fashion, he clearly knew that Smiley was not there to steal items from his store.
Maldini does not have any defense against Smiley for the suit the latter brought against the former for Intentional Infliction of Emotional Distress. All the requirements are present in this case, thus he is clearly liable.
After a careful consideration of the statements of facts and pieces of evidence, it is clear that Maldini is liable for damages to Smiley for having committed intentional torts known as the Intentional Infliction of Emotional Distress. All the elements of IIED are present in this case and he should be answerable for the damage he has caused to Smiley.
Facts 2: The facts of this case are as follows: Hedgeways Construction Inc. which is a company specializing in highway construction received a tender invitation from the government of British Columbia to submit a bid regarding a proposed road construction project. It turned out that the bid submitted by Hedgeways Construction Inc. was the winning bid. Hedgeways Construction Inc immediately started on the project and completed it. Upon its completion, Hedgeways Construction Inc. found that there were substantial inaccuracies in the tender invitation document submitted by the government of British Columbia which resulted in substantial losses on the part of Hedgeways Construction Inc. Because of the damage it sustained from the submission of inaccurate specifications, Hedgeways Construction Inc intends to sue the following: a) Brown and Green who were both qualified Engineers that prepared the specifications and engineering drawings; b) the Black and Associates Limited who are the employers of Brown and Green; c) and the province of British Columbia.
On the part of the government of British Columbia, it argued that in the tender invitation document it submitted to Hedgeways Construction Inc. made clear that any representation made in the said document were general information only. In effect, they do not guarantee the accuracy of the statements in the tender invitation document.
It has long been well-settled that the state may not be sued without its consent. This principle recognizes the sovereign character of the state and affirms the unwritten rule that states must be insulated from the jurisdiction of the courts of justice. The basis of this principle is that filing indiscriminate suits against the state will only result in the impairment of its dignity besides imposing a serious challenge to its infallibility. Justice Holmes once said in the case of Kawanakoa v. Polybank 205 US 349 that the basis of the doctrine of non-suability of the state is not on any formal conception or obsolete theory but on the logical and practical ground that there can be no legal right against the authority which makes the law on which the right depends.
Further, the doctrine of non-suability must be observed for practical consideration since the demand and inconveniences of litigation will divert the time and resources of the state from the more pressing matters demanding its careful attention to the prejudice of public service and welfare.
For the state to be sued without its consent, it must either expressly consent to be sued or it must waive its sovereign immunity. Waiver of sovereign immunity may be implied when the state enters into contracts with entities which are proprietary in nature as opposed to those which are sovereign in nature.
On the other hand, serious prejudice resulted to Hedgeways Construction Inc as a result of erroneous calculations in the specifications and in the tender invitation document. It would not be fair and just if business entities like Hedgeways Construction Inc. will not be able to recover from the damage it suffered if there was no fault or negligence on its part.
I believe that Hedgeways Construction Inc. must comply with the principle of non-suability of the state. The principle is clear. The state cannot be sued without its consent. Consent to be sued may be given either by expressly giving the consent to be sued or when the state waives its immunity. In this case, the government of British Columbia did not expressly give its consent. In fact, it expressly opposed the suit against it when it argued that it should not be held liable because the tender invitation document it submitted to Hedgeways Construction only contained general information. It argued that it did not guarantee the accuracy of the statements in the tender invitation document.
This does not necessarily mean that Hedgeways Construction Inc. may not be able to recover the damage it sustained. If the state cannot be sued then it can still sue those persons who actually made the error in the specifications and engineering drawings and the firms which employed it by virtue of the doctrine of imputed liability.
In this case, Brown and Green can be held liable for tort. The following requisites are present: a) there is an act or omission constituting fault or negligence; b) damage caused by the said act or omission; c) the causal relation between the damage and the act or omission. In this case, were both Brown and Green were qualified Engineers who prepared the specifications and engineering drawings. When they submitted the proposal to the government of British Columbia, they impliedly warrant that the same was accurate or even if it was not the inaccuracy will not cause serious losses to Hedgeways Construction Inc. Such was not the case in this instant case. The erroneous estimate caused substantial damage to Hedgeways Construction Inc. The negligence of Brown and Green was the proximate cause of the damage to Hedgeways Construction Inc. .
In addition, Black and Associates Limited who were the employers of Brown and Green should also be held liable for the damage suffered by Hedgeways. The doctrine of Imputed Liability applies in this case. The employers may be held directly liable when their employees, acting within the scope of their authority, causes damage to another.
Hedgeways Construction Inc shall have no recourse against the government of British Columbia based on the principle of non-suability of the state. It, however, may recover from both Brown and Green who were directly responsible for the loss suffered by it or it may file a suit against Black and Associates Ltd whose liability is imputed because of the negligent conduct of its employees.
The facts of this case are as follows: Giovanni and Leporello formed a partnership and registered the same under the name Adventures Unlimited. The nature of their business is to provide its rich clients with great adventure vacations. As between Giovanni and Leporello, they mutually agreed, and this was incorporated in the partnership agreement, that neither partner may incur expenditures on behalf of the firm in excess of $500 without the approval of the other partner.
Unknown to Leporello, Giovanni entered into an agreement in the name of their partnership with Elvira Sails Ltd which is a corporation engaged in the selling and leasing of boats. The contract included the rental of a large cabin cruiser for a period of three months at a rent of $10,000 per month. He then signed the rental agreement in his own name and paid a deposit of $1,000 using a check drawn on the partnership’s bank account. Since the delivery of the cruiser, Giovanni had not been seen. Elvira Sails, the owner of Elvira Sails Ltd is contemplating on filing a suit against Leporello.
The partnership relationship is essentially one of mutual trust and confidence in which the law imposes upon the partners the highest standard of integrity and good faith in their dealings with each other. The relation of mutual trust extends to all matters concerned with the formation of the partnership, and even when the partnership has dissolved the assets of the partnership must still be managed in accordance with this fiduciary principle. It must be stressed that the obligation of the partners to act with utmost candor and good faith in their dealings between themselves is not lessened by the existence of strained relations between them.
The rights and obligations of the partners as to each other are based on the theory that a partner is both a principal and an agent in relation to his co-partners. In principle, the partners are principals to the other partners and agents for them and the partnership. They are therefore liable to third persons who have dealt with them in the same way that a principal is liable to third persons who have dealt with an agent.
The general rule is that in the absence of any agreement to the contrary, all partners have equal rights in the management and conduct of the partnership business. They may, therefore, enter into contracts with third persons and the same shall be valid and binding to the other partners. Further, the principle of agency applies in partnership. Thus, when a partner performs an act within the scope of this actual or apparent authority, he is not only a principal as to himself but is also an agent as to his co-partners or to the partnership.
Limitations upon the authority of any one of the partners are not binding upon innocent third persons dealing with the partnership who have the right to assume that every general partner has the power to bind the partnership especially those partners acting with ostensible authority. Third persons in entering into a contract with any of the partners have no duty to ascertain whether or not the partner with whom the transaction is made has the consent of the other partners.
Elvira Sails has a cause of action against the partnership. The conduct of Giovanni amounted to fraud. As between the partnership and the third persons, the loss must be borne by the former since it is the former which is in the best position to prevent the loss. It would not be fair for an innocent third person to suffer the loss when it was the partnership in the first place which could have prevented the loss.
Elvira Sails has a cause of action against Leporello. As a partner of Giovanni, Leporello is liable for any obligation incurred by his partner. As stated, each partner is a principal and an agent to the other partner. It is as if Giovanni acted as the agent of Leporello when he entered into the said transaction.
The obligation contracted by Giovanni was within the scope of his authority. It bears stressing that every partner in the partnership is presumed to be authorized to enter into contracts with third persons. In this case, the obligation was within the nature of the business of the partnership and so Elvira Sails could not have known that Giovanni was not authorized to enter into such transaction. It could also not have been known by Elvira Sails that there was an internal agreement between the partners limiting the contracts that they can enter into.
The internal agreement which was entered into by Giovanni and Leporello though may be binding between them does not affect third persons. Thus, even if there was an internal agreement between both partners such will not affect third persons who had no knowledge of such an agreement. Elvira Sails had no knowledge of the internal agreement. Thus, Elvira Sails may still recover from Leporello
The partnership may raise the defense that the contract entered into by Giovanni was outside the scope of his authority and so only Giovanni should be held accountable for the same. The defense, however, is untenable. The principle of mutual agency applies in partnership wherein the partnership and the other partners are liable for the conduct of one partner if the conduct was done within the scope of his authority.
Lobello may allege the existence of the internal agreement limiting the obligation that either partner may enter into. However the same will be rejected on the basis that such agreement was not known to Elvira Sails. Thus, it is not binding upon her.
Do You need a paper on this topic?Order Your Essay
№7 In global rating
№12 In global rating
№15 In global rating
№1 In global rating
№9 In global rating
№10 In global rating
№4 In global rating
№13 In global rating
№6 In global rating
Order your paper now!
I asked Essay Lab to write an essay for me and received paper the next day after I ordered it! Thank you!
Awesome WORK! If I ever need to write my essay – I will use only EssayLab!
These people are lifesavers! Just ask – “write me an essay” and they will start right away!
We would be happy to write itJoin and witness the magic