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Monday, December 3, 2012

Defamation: Defamatory Statement


         Defamatory Statement: 

         The first requirement for a defamation action is that the statement or comment must be defamatory, and damaging the persons character, financial status, moral or reputation. Defamation is only when the statement or comment has tendency to injure a person’s reputation.
If a write or say of a man something that will disparage him in the eye of particular section of society but will not affect his reputation in the eye of the average right-thinking man is not actionable within the law of defamation. Tolley V. Fry (1930) 1 KB 467
Case example:
1 .        In Berkoff v Burchill [1996] 4 ALL ER 1008, a well-known journalist twice made remarks about Stephen Breakoff, an actor and director. She said that "film directors from Hitchcock to Breakoff are notoriously hideous-looking people" then in another review about Frankenstein she compared the monster's appearance to Breakoff, saying the monster was marginally better looking. Were the words 'hideously ugly' capable of being defamatory? The Court of Appeal said that words can be defamatory if they hold the claimant up to contempt, scorn or ridicule or tend to exclude him from society. The court emphasized that the statement was to be judged from the perspective of the reader and not according to the intention of the maker. In finding for the Claimant, the court said that the comments by the Defendant didn't just make the Claimant sound ugly but extremely repulsive and that this could be defamatory to a person who made part of his living as an actor. They said that most right-minded individuals wouldn't shun a person simply because of their looks, as opposed to if that person had a disease or was a criminal, but because of the profession of the Claimant the statement amounted to defamation. In a dissenting judgment Millet LJ said that words cannot be defamatory if the readers understood them to be a joke, even if it was a true joke.

2.      In Charleston v News Group Newspapers [1995] 2 AC 65, two popular characters from the TV show Neighbors were portrayed on the front cover of a newspaper naked except for black leather engaged in sexual intercourse. The title read "Strewth! What's Harold up to without Madge? Porn shocker for Neighbors stars" however the captions on the pictures made clear that the images were false. The image was taken from a sordid computer game which had computer-generated the images. The rest of the article condemned the game in a tone which can be contrasted with the prominence given to the image. The House of Lords accepted that the image must have deeply offensive but said that it was not defamatory since a publication has to be read as a whole. Even though the image and headline were libelous the remainder of the article had a neutralizing effect.

3.      Other examples of defamation

In the past there were several cases where accusing someone of being homosexual was defamation. However, as society has changed so too has the 'right-thinking man' and it is likely that nowadays such an accusation would not be defamatory. In respect of money, to say that someone is insolvent will be actionable as it will almost certainly stop people from trading with them, but to say simply that they owe money will not usually, as many people owe money quite frequently: Wolfenden v Giles (1982) 2 Br Col R 284.

4.     Sim v Stretch (1936) 52 TLR 669,
"The conventional phrase exposing the plaintiff to hatred, ridicule, contempt' is probably too narrow ... after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ?" (emphasis added)

Classification of Res

Classification of res:
Res have been classified in the following categorized:-
1.     corporales and res incorporales Res
Ø Res corporales are tangible object which can felt or touched.such thing have a physical existence and can be possessed and delivered. Such as land, hose, gold, money, slave etc

Ø Res incorporales are intangible thing and have no actual existence. Which cannot touched or perceived by the sense and exist only the eye of law it consist of abstract right. Such as servitude, right of inheritance and obligation etc.

2.     Res mancipi and res necmancipi:
Ø Res mancipi can only be legally conveyed or transfer by the formal ceremony of mancipato. If it transfer in other way no title passed to the transferee. Land or house in Itally, slave, oxen, horse, asses and servitude were designated as res mancipi.

Ø Res nec mancipi which could be transferred by tradition or delivery of possession.

That was the real distiretion between the two mode of transfer. But in Justinian law these distinction are removed and mancipatio was disappeared.

3.     Res mobiles and res immobiles:
4.     Res extra patrimonium and res inpatrimonium:
Ø Res extra patrimony is a thing which is incapable of being owned by a private person but the use of it for all. Res extra patrimonium are classified in following catagories

Ø Res communes:
That means common thing or property. Res communes are which things common to all people and enjoyed by the entire world. But not capable of appropriation by anybody such as air, running water, the sea and sea shoe.

Ø Res publicae:
That means public property. Res publicae are the things or property of the state. Such as public roads, harbours, rivers, the bank of the river etc.

Ø Res universitatis:
That means corporation property. Res universitatis are the property of a corporation. Such as a theatre, a stadium or university.

Ø Res nullius:
Res nullius are thing which belong to nobody. Such as wild animal, treasure trove etc. but it can be a private property when found and occupied by and individual.

5.     Res fungibiles and non fungibles:
Ø Res fungibles are things which are dealt with by weight, number or measure such as money, silver, gold, oil, wine and grain which are usually regarded collectively.

Ø Res non fungibles are things such as horse or piece of land which are regarded as individual units. 

What is a Res


The term “Res”, “Bona”, “biens” used by jurist who have written in the Latin and French language are intended to included movable or personal as well as immovable or real property.

Definition of Res:
·        According to Roman law the Latin term “Res” means things, good or property. Which is not only includes physical things but also abstract right such as servitude and ownership.

·        Bucland defined res in economic sense as any economic interest granted by law, any right or rights having a economic value, any interest expressible in terms of money which the law will prolect.

So res mean things or property, which includes both physical property and abstract right.



far too much precision to the proceedings of the
ancient assembly. The proper key to the story
concerning the execution of Wills in the Comitia
Calata must no doubt be sought in the oldest
Roman law of intestate succession. The canons
of primitive Roman jurisprudence regulating the
inheritance of relations from each other were,
so long as they remained unmodified by the
Edictal Law of the Praetor, to the following
effect : First, the sui or direct descendants who
had never been emancipated succeeded. On the
failure of the sui, the Nearest Agnate came into
their place, that is, the nearest person or class
of the kindred who was or might have been under
the same Patria Potestas with the deceased. The
third and last degree came next, in which the
inheritance devolved on the Gentiles, that is, on
the collective members of the dead man's gens
or House. The House, I have explained already,
was a fictitious extension of the family, consisting
of all Roman Patrician citizens who bore the same
name, and who on the ground of bearing the
same name, were supposed to be descended from
a common ancestor. Now the Patrician Assembly
called the Comitia Curiata was a Legislature in
which Gentes or Houses were exclusively repre-
sented. It was a representative assembly of the
Roman people, constituted on the assumption
that the constituent unit of the state was the Gens.
This being so, the inference seems inevitable,
that the cognisance of Wills by the Comitia was
connected with the rights of the Gentiles, and
was intended to secure them in their privilege
of ultimate inheritance.