Why is fraud called negligence?
no.to...@gmail.com
"assult with INTENT (to commit bodily harm) when I
instructed the 'guard' to clobber a bloke, and the Judge
kindly explained to pro-se-me that INTENT did NOT mean
I had intended the bloke to be harmed; merely that I had
known that he might possibly be harmed. This lay-man
would understand that to be mere negligence. Or?
Now I'm confused by 2 related case findings:
1. in Daniels v Daniels: a text book exception to the
Foss v Harbotle rule [re. majority controllers looting
the value of a minority in a private company, via their
majority voting power]
A law-person paraphrased [and I agree]: "..the court
stated that the minority shareholders were entitled to
bring an action where the majority shareholders acted
negligently (although not fraudulently) and made
profit out of their negligent conduct."
The reported facts are that the majority-looters used
the probate price, istead of a fair/market price to
personally loot the minority - in *plain* English.
2. in a related case the founding affidavit states:
"13...it was not made on consideration of the interest of the
company itself or of the shareholders as a general body,
but was actuated by personal motives and by the interests
of the defendants personally with regard to their private
financial concerns"
{BTW aren't law-people real wind-bags?!}
...
16. In the premises, and as a result of the joint negligence of
the defendants described above, the plaintiff has suffered
loss and damages in the sum of xxxx".
---- end of extract---
At 13, the affidavit DESCRIBES the crook's motives, and at 16
CALLS it "negligence". Implying that it can't be called fraud,
for example.
In both the Daniels and the second case the majority
looters clearly INTENDED to screw the minority victim.
So why/if does the law require it to be called negligence.
And if the word 'negligence' has been hi-jacked; what then
is the legal term for <something unintended happened
while I wasn't paying attention>?
== TIA
R. Mark Clayton
<no.to...@gmail.com> wrote in message
news:ictkgk$q49$1...@news.eternal-september.org...
> Just a possible analogy first: once I was found guilty of
> "assult with INTENT (to commit bodily harm) when I
> instructed the 'guard' to clobber a bloke, and the Judge
> kindly explained to pro-se-me that INTENT did NOT mean
> I had intended the bloke to be harmed; merely that I had
> known that he might possibly be harmed. This lay-man
> would understand that to be mere negligence. Or?
>
You are light on detail, but I assume that you instructed a guard to "strike
a bloke" when this was not necessary for self defence or to secure arrest.
In which case you did intend harm and offences against the person that
involve intent (and higher sentences) apply.
For instance if you throw a fire extinguisher off a roof during a drunken
party and it happens to kill someone below it would be murder, whereas if
you intentionally throw it onto a crowd below trying to hurt (but not
necessarily kill) someone below and it does kill someone then that is
murder.
For most offences of dishonesty "mens rea" is required - that is to say for
conviction the crown has to prove dishonest intent. For an example of a
case just on the boundary: -
X is an employee of shopkeeper Y. Y sends X with the takings to the bank,
but on the way X decides to use £20 of the money to bet on a horse [a tort
of conversion]. X knows that when he returns he will be paid his wages and
can make good any shortfall. Does X commit a fraud a) if the horse wins and
b) if the horse loses?
What if X [without asking] cashes his own personal cheque from the takings
and pays this in instead - a) if the cheque clears b) if the cheque bounces
Graham.
> For instance if you throw a fire extinguisher off a roof during a drunken
> party and it happens to kill someone below it would be murder,
Did you mean in this instance it would *not* be murder?
> whereas if you intentionally throw it onto a crowd below trying to hurt (but not necessarily kill) someone below and it does kill
> someone then that is murder.
--
Graham.
%Profound_observation%
no.to...@gmail.com
>
> <no.to...@gmail.com> wrote in message
> news:ictkgk$q49$1...@news.eternal-september.org...
> > Just a possible analogy first: once I was found guilty of
> > "assult with INTENT (to commit bodily harm) when I
> > instructed the 'guard' to clobber a bloke, and the Judge
> > kindly explained to pro-se-me that INTENT did NOT mean
> > I had intended the bloke to be harmed; merely that I had
> > known that he might possibly be harmed. This lay-man
> > would understand that to be mere negligence. Or?
> >
> SNIP - very confused post
Indeed, what a disasterous post.
I'm punch-drunk from trying to explain stuff to law people.
My above paragraph was an opening-joke [that went bad]
to show that I accept that "with intent" does NOT, in law,
mean "the party intended".
In order to make it easier to give an answer to my [important
for me] question, I'll 'spoil the game' by suggesting the answer
to be: when the Court knows damned-well that the party
defrauded, but hasn't enough evidence on record to prove fraud,
they will let the record show that negligence was the ground
for their decision.
Which is confusing to us lay men: since it's obvious that the looter
INTENTED to loot; whereas negligence means "some thing
happened that I didn't intend - to happen".
--------
Here's some extra background to my MAIN example/question:
If you and my brother and I 'have' each one third shareholding
of a company, then my brother and I can legally [via majority
vote] vote ourselves as directors and extract all the 'profit' as
directors fees. The branch of law which handles such matters
centers on the 1846 case: Foss v Harbottle.
In the Daniels case, the majority-controllers 'looted' the minorty
by using the probate price, for a land deal, instead of 'fair market
price', obviously [but not stated in the record/report] via the
'logic' that "oh well if the tax authorities, accepted THAT
price, no one can legally argue against it". Get it ?
So because I don't trust my own ability to explain to law-people,
I pasted a law-student's wording. Which I'll repaste here:-
] A law-person paraphrased [and I agree]: "..the court
] stated that the minority shareholders were entitled to
] bring an action where the majority shareholders acted
] negligently (although not fraudulently) and made
] profit out of their negligent conduct."
] The reported facts are that the majority-looters used
] the probate price, istead of a fair/market price to
] personally loot the minority - in *plain* English.
]
] 2. in a related case the founding affidavit states:
] "13...it was not made on consideration of the interest of the
] company itself or of the shareholders as a general body,
] but was actuated by personal motives and by the interests
] of the defendants personally with regard to their private
] financial concerns"
] {BTW aren't law-people real wind-bags?!}
] ...
] 16. In the premises, and as a result of the joint negligence of
] the defendants described above, the plaintiff has suffered
] loss and damages in the sum of xxxx".
] ---- end of extract---
And I'll edit and repaste the original rest-of-my-query.
BTW this is not a one-level-story, but a 4-level-story:
1. the facts,
2. the affidavit alledging the facts,
3 the Court's interpretation of the affidavit,
4. your interpretation of the Court's RECORDED reasons.
-----------
At 13, the affidavit DESCRIBES the crook's motives, and at 16
CALLS it "negligence". Implying that it can't be called fraud,
for example.
In the Daniels case the majority looters clearly INTENDED