" /1/
Perhaps the actual decisions could be reconciled on a [137]
narrower principle, but the rule just stated goes the length of
saying that in business matters a man makes every statement (of a
kind likely to be acted on) at his peril. This seems hardly
justifiable in policy. The moral starting point of liability in
general should never be forgotten, and the law cannot without
disregarding it hold a man answerable for statements based on
facts which would have convinced a wise and prudent man of their
truth. The public advantage and necessity of freedom in imparting
information, which privileges even the slander of a third person,
ought a fortiori, it seems to me, to privilege statements made at
the request of the party who complains of them.
The common law, at any rate, preserves the reference to morality
by making fraud the ground on which it goes. It does not hold
that a man always speaks at his peril. But starting from the
moral ground, it works out an external standard of what would be
fraudulent in the average prudent member of the community, and
requires every member at his peril to avoid that. As in other
cases, it is gradually accumulating precedents which decide that
certain statements under certain circumstances are at the peril
of the party who makes them.
Pages:
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
179
180
181
182
183
184