AUTHOR :- JAI RAJ MEENA

College :- National law university of odisha

2nd year
 Contents

Introduction 3

THE CURRENT STATUS OF TORT CONFLICT LAW 3

LEGAL OBJECTIVES AND MEANS OF ATTAINING THEM 4

SOCIAL CONTROL 4

The Aims OF SOCIAL CONTROL 5

ACHIEVING THESE GOALS 5

LAW-MAKING IN THE AREA OF BUSINESS TORTS 5

FREE ENTERPRISE- Basics Assumptions 6

THE RIGHT TO PURSUE A PROFIT 6

CONSIDERATIONS ON THE ART OF CONFLICT RESOLUTIONS 7

PRIVILEGE 7

ABUSE OF PRIVILEGE 7

MAJOR TYPE OF BUSINESS TORTS CASES 8

TRADE-MARK AND TRADE NAME CASES. 8

TERMINOLOGY USED 8

PRINCIPAL INTERESTS IN TRADE-MARK AND TRADE NAME CASES 9

THE TRADE SECRET CASES 10

TORTS THAT ARISE UNDER THE LAW AND HAVE AN IMPACT ON BUSINESS 11

infringement OF PATENTS 11

INFRINGEMENT OF COPYRIGHTS 11

BUSINESS TORTS BASED ON VIOLATIONS OF THE -A.NTITRUST LAWS 12

Common types of business torts 13

Breach of Fiduciary Duty 13

FRAUD 14

TORTIOUS INTERFERENCE 14

DEFAMATION, DISPARAGEMENT, AND TRADE LIBEL 14

CONCLUSION 14
 Research Objective

To find the Business torts presence and its Implication in corporate and commercial world.
 Introduction

When most individuals consider company law, the law of contracts often comes to mind. Despite the
fact that the vast majority of company disputes are based on contractual agreements, tort-based
grounds of action may nevertheless be valid.

Tort law entails legal obligations for intentional or negligent harm done or inflicted, generally to a
person's person or property. There are, however, tort theories that give a foundation for recovering for
harm to a business's practise and/or reputation. These claims may result in an award of
compensatory damages for lost business, punitive damages as a punishment for the defendant,
and/or injunctive relief to cease the defendant's tortious conduct. Business torts typically result in
damage to a company's reputation, business connections, and/or intellectual property.

This work aims to identify as precisely as possible the law that best matches business torts involving
two or more legal systems. It is sufficient to note that the focus of this analysis is on choice-of-law
issues, given that the definition of "tort" is another area in which scholarly research has not produced
a consensus, and that the qualification "commercial tort" adds significantly to the subject's obscurity.

Such topics like antitrust law, which are primarily governed by federal law, typically do not lend
themselves to issues of conflicts law unless foreign law is involved. In this context, it must be
determined if the international level of conflict of laws, as opposed to the domestic level, requires
specific guidelines.

The quest for a suitable law of business torts necessitates an initial analysis of the great variety of
alternative approaches to torts in the conflict of laws. Only after this preliminary investigation can one
focus on specific business torts and assess whether there is a proper tort law for specific or all
business torts. Possible solutions include the possibility that a single Rule, such as “lex loci delicti
commission” or “lex fori”1, is adequate to solve all issues.

THE CURRENT STATUS OF TORT CONFLICT LAW

Today, torts in the clash of laws constitute an area of turmoil, if not outright anarchy. "Crisis,"
"confusion," "revolution," and "Cee Tee" are just a few of the terms used by scholars on both sides of
the Atlantic to describe the current situation. While the Restatement seems to sum it all up in the
general principle of the most significant relationship, a glance at the scholarly journals or textbooks
reveals an over whelming variety of opinions.

Justice Joseph Story, the first American expert on conflict of laws, was seemingly unaware of torts
producing issues in that branch of the law. This is due to the fact that English law, which influenced
1
Grant Feitzer, tort law in the business context, Galbut Beabeau, Jun 24 2012.
Story, overlooked conflicts law. One reason for this attitude of the English courts was the presence of
the common law, which was acknowledged across England. Another reason was that cases resulting
from controversies someplace outside England but within the jurisdiction of the English courts were
considered to be within the jurisdiction of the English courts. The local law theories of Judge Learned
Hand and Walter Wheeling Cook are somewhat similar.

They felt that each court could only enforce its own law and maintained that it applies a law that is "as
similar as feasible." "to the law of the location where the tort took place. This is a pragmatic theory
that attempts to open up new avenues, whereas the vested rights theory represents the traditional
approach of lex loci delicti. Numerous scholars and, subsequently, courts have launched attacks of
different ferocity against the traditional idea, notably the lex loci expressed in the Restatement.
Although it is accurate to argue that a "business tort" is a sort of tort, the word "business tort" has not
yet established a clear definition. As used here, it refers to the body of law that regulates the type and
degree of the legal protection afforded to an individual against interference with his business contacts
with others, as well as interference with non-contractual forms of intangible commercial property. In
this domain, there are some categories of wrongdoing that have been given names and others that do
not.

LEGAL OBJECTIVES AND MEANS OF ATTAINING THEM

SOCIAL CONTROL

Some do not discover definitive solutions. This does not exclude out additional investigation, but,
"Law in all of its definitions is a matter of practise. If we cannot provide an answer that is absolutely
demonstrable to everyone and completely convincing to the philosopher, it does not necessarily follow
that we cannot have a good working blueprint of what we are attempting to do and be able to make a
good practical approximation of what we seek to accomplish." Some, including the author, believe that
social control will replace the law. In other words, the legal system as we know it, comprised of its
principles, institutions, and the individuals who participate in its operation and administration, among
many others, exerts influence over society through influencing the behaviour of the individuals who
make up that society. This is accomplished by the provision of direction, prediction, suggestion, and
threats, among other methods. Obviously, legislation is not the only institution involved in the social
control process. There is no way to prove or disprove that ethics, philosophy, religion, education, and
several other institutions contribute to a much higher amount than the law, yet this cannot be proven
or disproven. At the very least, it is evident that other institutions defend and promote a greater
number of essential values. It is widely acknowledged that law making is both a judicial and legislative
duty. It is also true that administrators, attorneys, law and other social science educators, as well as
many others, participate. The law making process is so ubiquitous that it affects nearly every area of
our surroundings. However, it cannot be denied that judges and legislators play the most important
roles in the process; consequently, this discussion focuses mostly on determining the reasons behind
the regulations in the law of commercial torts, as formed by judges and legislators during the process.

The Aims OF SOCIAL CONTROL

To assert that the function of the law is to participate in the process of social control is to reveal
nothing about the objectives of such control. Exist any overarching aims that are likely to have a large
and consistent role in influencing the decisions of individuals involved in the law making process,
particularly judges and legislators? It appears to be the case. The first objective is to satisfy the
present desires of the diverse elements of society. Possibly, this goal will always remain preeminent
since, more than anything else, it ensures that the law has the necessary backing of society's
members to exert its proper impact. The next objective is to serve the needs of society and its
members in the near and distant futures. There appears to be a purpose in working towards the
immediate and long-term moral and intellectual improvement of society and its individual members.
Surely there are additional objectives, but these appear to be the primary ones.

ACHIEVING THESE GOALS

Of course, people involved in the law making process may not always agree on the techniques to be
utilised to achieve these objectives, and even the areas of consensus are likely to shift over time. In
addition, the aims of social control are more likely to be suggested than expressed explicitly.
However, they are nonetheless present.

Moreover, motivation may be inconsistent. Perhaps egotism, vindictiveness, jealousy, and bias have
entered into the judge's or legislator's deliberations, when they should not have. Insofar as such
elements have influenced the decision, the law is not accomplishing its intended purpose. It is instead
being corrupted. However, it is thought, although there is no way to prove it, that the overarching
goals of social control play a large and consistent role in the majority of judgments made by judges
and lawmakers during the law-making process. As the legislative process is carried out, numerous
individual and societal interests emerge. There include, for instance, interests in managing and
safeguarding one's physical person, in privacy, in reputation, in belief and opinion, in self-expression,
in learning, and in interpersonal relationships. There are interests in property, such as the right to
hold, control, enjoy, exclude others from, and transfer property, either during life or after death. There
are interests in contracts and other promised benefits, cultural benefits, opportunity, industry, political
services and their development, the security of social institutions, morality, justice, safety, peace,
health, and security, among many other things.

LAW-MAKING IN THE AREA OF BUSINESS TORTS

Whether by the court or the legislature, lawmaking is a dynamic process in which the various interests
are in a constant state of flux, appearing in varied combinations and contexts, each fighting with the
others for more recognition and weight as they take their positions on the scales of justice. Judges
and legislators work most effectively when all pertinent interests in a particular scenario are
considered and given appropriate weight.

When legislation is enacted in the domain of business torts, the process of weighing and balancing
interests is carried out with vigour, as the interests of society and the many individuals, companies,
classes, and groups vie for recognition. To identify the interests most likely to be given major weight in
creating principles that determine liability under the law of business torts, it is essential to recognise
that the free market system is the fundamental premise upon which business activity is conducted in
this country.

FREE ENTERPRISE- Basics Assumptions

The term "free enterprise system" is likely to be interpreted differently by various individuals.
According to the author, it conveys three fundamental principles expressed in various ways. One is
the concept of liberty. Although freedom holds significant weight in practically all areas of the law, it is
of utmost importance in this instance, particularly as it pertains to the absence of restrictions on the
conduct of economic activity. Following is the concept of private property. This includes not only the
right to possess and enjoy things, but also, and more importantly, the right to prohibit others from
owning and enjoying them except under the terms established by the "owner." Lastly, there is the
concept of rivalry. Competition is viewed desirable in the area of economic activity for a variety of
reasons.

Important is the interest that each individual has in his ability to conduct economic activity as he, and
not someone else, dictates. Likewise, the social interest in competitiveness is increasing. As we shall
see, they occasionally appear on different sides of the scales of justice. When they stand on the same
side of the scales, they carry a considerable deal of weight, and a court is likely to declare the
existence of the "right" to pursue a profit, which is typically regarded as the most important "right"
under the law of business torts.

THE RIGHT TO PURSUE A PROFIT

The "right" to pursue a profit is more than immunity from accountability to anyone damaged as a result
of such pursuits. The "right" to pursue profit also provides judicial support for the desire to be free
from excessive interference from others while pursuing one's own economic gain. This notion
permeates every aspect of the law of business torts. In most circumstances, presuming that there is a
"right" to pursue a profit and then proceeding from that premise does not aid analysis. Assume, for
instance, that the defendant is ruled not liable despite the fact that the plaintiff was hurt as a result of
the defendant's pursuit of profit. It could be argued that the defendant is exempt from culpability due
to his "right" to pursue profit. It is more reasonable to conclude that the society interest in maintaining
competition, when paired with the defendant's interest in being free to pursue a profit, surpasses the
plaintiff's interest in not being harmed when this latter interest is not supported by another interest or
combination of interests sufficient to tip the balances in the plaintiff's favour.

Similarly, it is frequently reasoned that the outcome of a lawsuit in which the plaintiff has been hurt
while pursuing a profit must depend on whether or not the defendant's behaviour was "justified" or
constituted a "unreasonable" interference with the plaintiff's "right" to make a profit. It seems prudent
to recognise that in a case of this nature, the court is required to consider and weigh the various
relevant interests and make a value judgement as to whether the promotion of one set of interests at
the expense of the interests on the other side of the scales is more likely to promote the judge's broad
social goals, or whether the opposite is true.2

CONSIDERATIONS ON THE ART OF CONFLICT RESOLUTIONS

Indicative of the courts' propensity to think and act in terms of balancing interests is the frequency with
which a single interest is accorded essentially the same weight as several very distinct sorts of
damaging conduct. Thus, the just-mentioned interest - the right to assert or threaten to protect one's
own property rights - frequently tips the scales in favour of the defendant, not only when the alleged
wrong consists of inducing breach of contract, but also when the wrong consists of disparaging,
defaming, or inducing refusal to deal. Similarly, a person who responds to a request for information or
advice may be insulated from certain sorts of responsibility by the individual's and society's interest in
freedom of speech and amicable interaction. Members of the judiciary, the legislature, and other
public offices have broad protection based on the interests that the performance of their duties is
meant to advance. Similarly, the public interest in the open transmission of things of public
importance, which is usually cited as a justification for exempting members of the press from libel
responsibility, may also provide a defence against other sorts of liability.

PRIVILEGE

Frequently, the assertion that a privilege exists implies the existence of a particular interest.
Consequently, in a specific instance, the court may rule that a defendant's speech is privileged
because it was made while he was executing official duties, showing that the court acknowledges the
social interest in allowing government officials to speak and act without fear of a civil suit. In another
situation, the court may note that a statement is privileged since it was transmitted from a husband to
2
his wife, showing that the judge has weighed the individual's and society's interest in the individual's
ability to speak with his spouse without fear of litigation.

ABUSE OF PRIVILEGE

In the vast majority of instances where privilege is acknowledged, the scales of justice are typically
almost balanced. Consequently, the addition of a conflicting interest to that which gave rise to the
privilege frequently rebalances the scales in favour of the plaintiff. When this occurs, the court is likely
to declare that the privilege has been misused, so destroying it. Thus, when a defendant speaks on a
conditionally privileged occasion, the scales will be rebalanced if it seems that the defendant acted
with genuine malice, as actual malice offends the moral interests of society. In another instance, a
defendant may be denied the benefit of a privilege because, despite believing what he said, he spoke
without reasonable grounds for his belief, thereby violating the social interest in encouraging
individuals to exercise caution before committing potentially harmful acts against others.

MAJOR TYPE OF BUSINESS TORTS CASES

TRADE-MARK AND TRADE NAME CASES.

Principles for determining whether or not liability should be imposed on the basis of trademark and
trade name infringement have been developed using a procedure quite similar to that which has been
discussed previously. To minimise confusion, it should be noted that these terms are used in the
common law sense and not as defined by the Federal Trade Mark Act of 1946, which governs
interstate trade. Common law defines a trademark as any mark, phrase, number, design, picture, or
combination of these in any shape or arrangement, which is adopted and used by a person to denote
things which he markets, as long as it is affixed to the goods and is not utilised in a manner contrary
to public policy. If the phrase is generic, descriptive, geographical, or a surname, it must also be
employed arbitrarily or imaginatively. Thus, a designation cannot constitute a trademark if it is a
generic term that prospective purchasers are likely to perceive as the common name for the goods, a
descriptive term that they are likely to perceive as describing the goods, a geographical term that they
are likely to perceive as indicating an actual geographical relationship, or a personal name" that they
are likely to perceive. as referring to a person who actually has a commercial relationship with the
items.

TERMINOLOGY USED
A trade name may be any designation established by a person and used to identify the items he sells,
the services he provides, or the business he operates, as long as such use does not violate public
policy. It is irrelevant whether the designation is a generic, descriptive, or geographical term, or a
surname that has a real connection to the goods, services, or business for which it is employed.
Nonetheless, the owner of the designation is not entitled to remedy against the use of the designation
by others unless the designation has developed a secondary meaning; i.e., unless via its association
with such goods, services or company, the designation has come to be understood by a considerable
number of existing or potential purchasers as indicating certain sources of the goods, services or
business.

In brief, a trade-mark may be used only in marketing goods, whereas a trade name may be used in
connection with goods, services, or a business; a trade-mark must be attached to the goods, whereas
a trade name need not be; a trademark may not be merely a generic, descriptive, or geographical
term or a surname, whereas a trade name may be; and a trade-mark is entitled to legal protection as
soon as it is used in marketing goods, These are the primary distinctions.

PRINCIPAL INTERESTS IN TRADE-MARK AND TRADE NAME CASES

One of the major interests in the law of trademarks and trade names is the societal interest in
competition, which necessitates that consumers be informed about the various vendors' goods. This
interest tips the scales in favour of the plaintiff because principles that recognise trademarks and trade
names enable a system of trade in which consumers can discern the origins of accessible goods and
services.

The legal rules governing trademark and trade name infringement - unfair competition in the limited
sense - have evolved from the action of deceit, which needed the intent to deceive. This suggests that
one of the more significant reasons on the plaintiff's side of the scales was society's morals, which is
violated when one merchant passes off his wares as those of another. Historically, this was likely the
principal concern, as the success or failure of the plaintiff's case hinged on his ability to demonstrate
that the defendant acted with the purpose to deceive. The ease with which courts now provide
remedies without regard to whether or not fraudulent intent has been demonstrated indicates that this
interest has lost some of its significance. The frequency with which the awarding of remedy beyond an
injunction is conditioned on the proving of fraudulent intent demonstrates that society's interest in
honesty has not lost all of its weight. It is further demonstrated by the fact that the presence or lack of
fraudulent intent typically tips the scales in close situations where the plaintiff's mark is weak and
when it is unclear whether or not the plaintiff's trade name has developed a secondary meaning.
Society's interest in supporting industry and integrity weighs in favour of the plaintiff in trademark and
trade name issues, which is advanced when the plaintiff is enabled to realise the benefits of providing
high-quality goods or services. On the same side of the balances is the plaintiff's interest in economic
freedom unfettered by undue intervention. Whenever a court refers to the plaintiff's "good will" and
recognises the plaintiff's interest in his mark or name as property, society's as well as the individual's
interest in the security of economic profit is considered favourable to the plaintiff. Individual freedom to
pursue economic benefit carries enormous weight on the defendant's side of the scales in trademark
and trade name infringement actions, as it does in the vast majority of business tort cases. When a
trade-mark or trade name is granted legal protection, the social interest and the individual interest in
the freedom to draw upon the existing store of words and symbols are sacrificed to a certain degree,
which weighs in favour of the defendant. In circumstances where relief is stated to be rejected on the
grounds that a designation is purely generic, descriptive, or geographical, or is merely a surname, this
interest is typically the deciding element. The significance of this interest is considerably decreased
when a designation is used in an arbitrary or imaginative manner, as it is unlikely that anybody other
than the plaintiff will seek to use it in the same arbitrary or fanciful manner, unless for the purpose of
riding on the plaintiff's coattails. Therefore, when a mark or name is used arbitrarily or fictitiously, the
interest in freedom to draw on the existing bank of words and symbols rarely tips the scales in favour
of the defendant.

In the case of a trade name (which does not require inventiveness), the courts do not recognise a
serious offence to the interest of justice until the plaintiff's mark has acquired a secondary meaning;
that is, until a significant portion of the public has come to recognise the name as identifying goods or
services from the plaintiff. The social interest in avoiding misunderstanding and error among the
general public carries substantial weight in trademark and trade name matters. Indeed, courts rarely
give remedies for trademark or trade name infringement unless it can be demonstrated that this
interest has been violated. The fact that courts occasionally deny injunctive relief notwithstanding the
likelihood that defendant's continuing use of a designation will lead to public confusion demonstrates
that this interest is not sufficient to outweigh all other interests that may appear on the defendant's
side of the balances.

THE TRADE SECRET CASES

Turning from trade names and trademarks to trade secrets reveals both familiar and unfamiliar
interests. On the side of the claimant in almost all disputes involving trade secrets will be the interest
in rewarding and promoting initiative, as well as the interest in justice that is advanced when one
person is prohibited from enjoying what another has planted. As significant as these interests are,
they are typically surpassed by the interest in the free dissemination and use of ideas, as well as other
interests that typically follow in their wake. If a party asserting rights to a trade secret is to prevail, he
must demonstrate an additional interest. If the action is one in which the claimant seeks to prohibit or
recover for the disclosure or use of the concept, this additional interest may be included in the security
interest in contracts. This interest tips the scales in favour of the claimant when the person about to
use or disclose the information is under an express or implicit contractual responsibility not to do so. If
there does not appear to be a contractual obligation to refrain from utilising or transmitting the
concept, the additional weight required to tip the scales in favour of the plaintiff may be the moral
interest that is damaged when a confidence is breached. Where there is no contract or confidence on
which to base an obligation not to use or disclose an idea, the scales may be tipped in favour of the
claimant of the trade secret by the interest in morality that is offended by the fact that the defendant
was guilty of some impropriety in acquiring the trade secret. Even if the scales appear to have been
tipped in favour of a claimant of a trade secret by the fact that the disclosure of an idea would violate a
duty based on a contract or a confidence, the interest in justice may cause them to re-tilt in favour of a
defendant if it proves that, at the time the defendant induced the disclosure of the idea, he was
uninformed that there was any responsibility not to divulge it and that, before learning of the
requirement, 3

TORTS THAT ARISE UNDER THE LAW AND HAVE AN IMPACT ON BUSINESS

It has been stated that trademarks, trade names, and trade secrets are the creation of the courts, not
the legislatures. In contrast, the concepts governing patents and copyrights are nearly exclusively
derived from statutes, the Constitution, and other congressional acts. However, the same type of
examination can be used to these latter forms of intangible company property.

INFRINGEMENT OF PATENTS

For a period of seventeen years, a patent grants the patent holder the right to exclude anyone from
creating, using, or selling anything covered by the patent. At the core of the patent laws is society's
interest in economic development, which is supported by encouraging the creation, disclosure, and
commercialization of limited-type useful ideas. It is crucial to understand that the courts do not
interpret patent laws as evidence of a policy to advance the social interest in ordinary economic
endeavour. This objective is regarded to be met by the maintenance of the system of competition and
the standards governing trade secrets outside of patent laws. For this reason, the Supreme Court has
declined to recognise the validity of a patent based on a mere "skilled in the art" advancement,
insisting that a patent must be founded on a "flash of creative genius." However, even the
demonstration of brilliance is not sufficient on its own to support the issuance of a patent. It must be
accompanied by society's interest in the disclosure of the innovation, so that it can be utilised by
parties other than the inventor and his successors. The public interest in disclosure underpins the
principle that precludes the right to a patent when it seems that the innovation was privately used prior
to the patent application. It also explains the time limit for filing a patent application and the
requirement requiring that the application describe the invention with sufficient clarity and detail for a
person versed in the art to comprehend and use it.

The social interests involved are not deemed sufficient to justify the granting of a patent if it appears
that the invention is already within the field of easily accessible public knowledge, even if the applicant
inventor was unaware of any prior work.

3
Charles M. Weber, The Reasons behind the Rules in the Law of Business Torts, 38 NEB. L. REV. 608 (1959).
The fundamental right conferred by a patent is the right to exclude others from creating, using, or
selling the subject of the invention. The fact that this establishes a limited monopoly that is detrimental
to the system of competition greatly favours the defendant in every case of infringement. It lies behind
the rule which empowers any interested person to initiate an action to have a patent declared invalid;
it lies behind the rule that a patent should be deemed invalid when it claims too much and there is an
excessive delay in issuing a disclaimer; and it lies behind the rule that a patent must be narrowly
construed. In actuality, the majority of patent restrictions can only be understood when society's
interest in maintaining competition is taken into account.

INFRINGEMENT OF COPYRIGHTS

In general, a copyright allows the holder to prohibit others from utilising the protected work without
permission. This right is initially given for a term of twenty-eight years, but the copyright holder has the
option to renew it for a similar length of time. Many of the same interests that are considered in patent
disputes are also considered in copyright proceedings. For instance, the social interest in promoting
constructive effort and the social interest in allowing an individual to reap what he has sown are likely
to fall on the plaintiff's side of the scales, whereas the social interest in competition and the individual
interest in being free to do as one pleases are likely to fall on the defendant's side. Obviously, where
the same interest is given weight in both types of cases, the proportionate weight provided to the
interest in a copyright case is likely to be different than in a patent case. In addition, many interests
that have weight in patent proceedings do not carry weight in copyright matters, and vice versa. Thus,
the social interest in the introduction of new ideas, which is fundamental in patent rules, has no
relevance in copyright laws, which are only concerned with the social interest in the expression of
ideas. Thus, if a writer independently writes a description of a well-known system, he is entitled to
protection against the copying of his style of expression, even though he has contributed no original
concepts. To generate statutory copyright, the published work must have a suitable notice of copyright
so that the entire world is aware that copyright is claimed. Since the majority of works that come to the
attention of members of the public are either not copyrighted at all or are no longer protected by
copyright because the copyright statutes' protection period has expired, this principle requiring
reasonable notice before charging a person with infringement serves the interest of justice. Even if all
criteria of the copyright statute pertaining to notice have been met, the right to suit for infringement is
predicated upon depositing copies of the work with the copyright office. This provision safeguards
both the public interest in preserving valuable works for the dissemination of knowledge and the public
interest in being informed regarding the presence and scope of purported copyright monopolies. Any
original work that has been reduced to a recognisable form and legally registered is protected by the
courts under the copyright laws. As opposed to patents, there is no requirement to demonstrate
originality or exceptional effort. This apparent leniency in affording legal protection does not represent
a disregard for the quality of the work. Rather, it is believed that the best way to stimulate interest in
such work is through a liberal policy that avoids discouraging further effort by those who already
possess actual potential while simultaneously encouraging the emergence of fresh talent. A liberal
stance in this area also reflects a desire to preserve the dignity of the courts, which would be
threatened if judges were required to evaluate the quality of alleged works of art. Lastly, it reflects the
reality that the social interest in competition is not as large in copyright instances as it is in patent
situations since patent monopolies have significantly bigger economic effects.4

BUSINESS TORTS BASED ON VIOLATIONS OF THE -A.NTITRUST LAWS

A variety of statutes pertaining to corporate behaviour allow a civil recourse for anyone harmed by a
violation. Where this is so, the violation is a business tort. Some of these laws are state laws, while
others are federal. By far the most important of these statutes are two antitrust laws: the Sherman Act,
which makes it illegal to restrain trade, monopolise, or attempt to monopolise, and the Robinson
Patman Act, an amendment to the Clayton Act whose primary purpose is to encourage sellers to
refrain from discriminating against buyers. Despite the fact that state statutes are not standardised,
they generally reflect the same broad ideas as the federal statutes. Agreements to fix prices,
agreements to divide markets,", agreements to limit output," individual refusals to deal,group boycotts,
agreements not to compete, misuse of patents, misuse of copyrights, predatory trade practises,
intimidation, underselling, and numerous other types of misconduct may constitute violations of the
Sherman Act as well as a number of state acts dealing with restraints on trade and monopolies.

Society's interest in competition is not the only interest that antitrust laws seek to foster. Diverse
degrees of importance are also ascribed to the interest in economic freedom, which is promoted by
avoiding monopoly; the interest in justice, which is promoted when opportunity in the economic arena
is not confined to the few; the interest in sound government, which is promoted by a system that
shields against government by business; and the interest in national defence, which is supported by a
system that protects the government from the dangers of being dependent on foreign powers. In spite
of this, the interest in competition continues to predominate in antitrust law matters, just as it does in
the vast majority of business tort cases.5

Common types of business torts

Breach of Fiduciary Duty

Perhaps the most prevalent tort cause of action in company disputes, breach of fiduciary responsibility
claims frequently have a contractual aspect.
4
Peter R. J. Thompson, Outline of 23 California Common Law Business Torts, An ,
13 PAC. L. J. 1 (1981).
5
Jonathan G. Rose & Michael J. Buddendeck, Recent Developments in Employee Benefits
Law, 38 TORT TRIAL & Ins. PRAC. L.J. 289 (2003).
There are two sorts of fiduciary relationships:

those created expressly by a contract or formal legal activity, and

those implied by law based on particular relationships and/or transactions between the parties.
Regarding the latter, the existence of a fiduciary duty depends on particular facts, such as the type
and scope of the relationship between the parties.

Foreign courts have found fiduciary connections between the following parties in the business context:
attorney and client; corporate director and corporation; amongst partners in a partnership; general
partner to limited partner; joint ventures; broker and client; agent and principle; real estate
agent/broker and principal; escrow agent to parties to a transaction; and trustee and parties to a
transaction or beneficiaries of a trust. In certain cases, accountants and auditors may also owe their
clients fiduciary duties.6

FRAUD

A variety of business-related injuries, including falsification of financial records or other business

papers and embezzlement, can give rise to fraud claims. Notably, plaintiffs bringing breach of
fiduciary duty and/or fraud claims in the context of business relationships should be mindful of the
economic loss rule – a common law rule recognised by foreign courts that may bar tort claims in
certain situations where a contract governs the parties' relationship.

TORTIOUS INTERFERENCE

A firm commits tortious interference when it attempts to economically harm a rival by interfering with
an existing or potential contract or business relationship with a third party. Although foreign courts'
language varies, there are two causes of action: tortious interference with a contract and tortious
interference with a commercial expectation. The primary distinction between these two claims is
whether a contract existed between the plaintiff and the third party or whether there was only an
anticipation of a future business relationship or economic advantage. In either scenario, the plaintiff
must demonstrate, among other things, that the defendant was aware of the contract or business
expectation violated.

DEFAMATION, DISPARAGEMENT, AND TRADE LABEL

There are numerous potential grounds of action arising from the dissemination of false and
detrimental information about a company. Defamation typically results from harms to a business's
reputation, whereas disparagement typically results from harms to the business's economic potential.

6
Peter R. J. Thompson, Outline of 23 California Common Law Business Torts, An ,
13 PAC. L. J. 1 (1981).
Foreign courts have also recognised trade libel suits, which entail false remarks that denigrate a
business's property or a specific product.7

CONCLUSION

Business torts resulting from violations of antitrust law appear to be an appropriate topic to conclude
with. It was not the intention of the preceding discussion to examine all of the grounds for all of the
rules in the law of commercial torts, and the image has at times been painted with an overly wide
brush. However, it is anticipated that the discussion has been comprehensive enough to provide an
approach to business tort problems that should make it easier to discover and comprehend the
rationale behind the regulations in this area of the law. A person who has developed the habit of first
familiarising himself with the facts and then attempting to identify and analyse the many interests
involved in a given scenario is well on his way to acquiring a solid understanding of legal principles in
whatever area of law he is studying. Importantly, he has developed an attitude and skill that, when
properly utilised in the law-making process, by judge, legislator, administrator, attorney, teacher,
sociologist, political scientist, or anyone else engaged in the law-making process, should strengthen
the hope that the law will serve the purpose of social control aimed at humane goals.

7
Robert J. Gilbertson , Margo S. Brownell, Kristina H. Allaire & Ellen T. Lowenthal, Recent Developments in
Business Torts Law, 38 TORT TRIAL & Ins. PRAC. L.J. 239 (2003).