If not Ghostbusters, then perhaps your lawyers. They would probably consider at least two situations.

First, in the context of the formation of contracts, a misrepresentation is a false statement of fact made by one party, which causes another party to enter into the contract, and which gives that latter party the right to set the contract aside. So, if you were spooked enough to ask whether the house was haunted, and if the sellers were skeptical enough to say that it wasn’t, and if a court were to find that it was in fact haunted, then you would be able to set the contract aside for misrepresentation.

Second, whilst there is no general duty of disclosure, particular duties of disclosure can – exceptionally – arise; in such cases, a material non-disclosure by one party, which causes another party to enter into the contract, gives that latter party the right to set the contract aside. So, even if you didn’t ask whether the house was haunted, but if a court were to find that it was, that the sellers knew about it, that they chose not to tell you about it, and that they should have done, then you would be able to set the contract aside for this material non-disclosure.

Of course, both of these hypotheticals turn on the fact that the court would find as a fact that the house was haunted. And no court would do that, would it?

Well, in Stambovsky v Ackley 572 NYS 2d 672 (NY App Div 1991) (blog post | ContractsProf Blog here and here | full text | the house | wikipedia), the New York Court of Appeals confirmed the orthodoxy that the doctrine of caveat emptor imposes no duty upon the vendor of property to disclose any information concerning the property; but it held that, by way of exception, a duty of disclosure could arise if there is some conduct on the part of the vendor which constitutes “active concealment”. Moreover, in an entertaining decision citing Hamlet and Ghostbusters (the movie and its theme song), the Court held that since the seller had deliberately fostered the public belief that her house was haunted, she was estopped from denying that it was, and it followed that

…. as a matter of law, the house is haunted.

The purchaser was not a local and was unaware of the house’s reputation, which the seller actively sought to conceal during the negotiations for the purchase and sale of the house:

It has been remarked that the occasional modern cases which permit a seller to take unfair advantage of a buyer’s ignorance so long as he is not actively misled are “singularly unappetizing” (Prosser, Torts § 106, at 696 [4th ed 1971] [[5th ed here]]). Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission … is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.

Hence, on these unusual facts, the court allowed the purchaser to rescind or set aside the contract. the facts may have been unusual, but the legal structure of the argument was not. It is a classic case of material non-disclosure. An excellent example is provided by Obde v Schlemeyer 56 Wn 2d 449, 353 P2d 672 (1960). Here, the Supreme Court of Washington held that seller of house should have told buyer that it was infested by termites. Although the vendors knew there was widespread termite infestation in the residence, the purchasers did not. The vendors argued that they had no duty to inform the purchasers of the termite condition because the purchasers had not so inquired. This court, however, held that such a duty existed, and allowed the purchasers to set aside the contract. Moreover, Obde v Schlemeyer has been several times referred to as a classic example of fraudulent concealment (Hughes v Stusser 68 Wn 2d 707, 415 P2d 89 (1966); Atherton Condominium Association v Blume Development Co 115 Wn2d 506, 799 P2d 250 (1990)). Once the Court in Stambovsky found that the seller was estopped from denying that the house was haunted, then it was exactly the same as Obde: in both cases, an important fact was concealed by the seller, and it was such an important fact that it would have changed the purchaser’s mind had it been disclosed. As the New York Times observes, in an article headlined Some Buyers Regret Not Asking: Anyone Die Here?

Today, a home associated with a murder or suicide can become what some brokers call a stigmatized property. So can homes reputed to have a resident ghost. Although they are free of physical defects like leaky roofs or lead paint, such properties can so spook potential buyers that they linger on the market and command less than market value. Or, the discovery of the death can prompt a sudden change of course.

The moral of the story, I suppose, is that a seller might have no general duty to speak, but should nevertheless consider whether silence really is the best policy in the face of stigmatizing facts. For example, it seems that Joan Rivers is seeking to sell her Fifth Avenue penthouse apartment, and there are reports that purchasers may get not only the formal dining room and ornately panelled library but also the ghost of a previous owner, so the question is whether she should come clean about the apartment’s additional occupant.

However, the law is different on this side of the Atlantic. Sykes v Taylor-Rose [2004] All ER (D) 468, (2004) 2 P&CR 30, [2004] EWCA Civ 299 (27 February 2004) is a graphic example. The defendants sold their house eighteen months after discovering that it had been the scene of a gruesome and infamous murder; the plaintiffs purchased the house, but learned of its history seven months later when it was featured on a television programme about the murder. (It was a very controversial case, which has featured in many news stories). The Court of Appeal reaffirmed the orthdoxy that there is, in property transactions, no general duty of disclosure (so that the doctrine of caveat emptor applied without exception). Failing to disclose a history of this kind would amount to active concealment giving rise to an actionable non-disclosure in the US, but not in the UK. Perhaps, therefore, the millionaire businessman who claimed that ghosts forced him to flee the 52-room Nottinghamshire mansion he had bought the previous year should instead have kept silent and simply sold the mansion. In that case, instead of calling Ghostbusters, or his lawyers, he should have called his estate agents. And if you’ve bought a haunted house, perhaps you might wish to do the same.

Happy Hallowe’en!

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

Yesterday, one Irish politician called on another to make an apology to the Irish people. This would just be another forgettable eddy in a political coffee cup were it not for the fact that the demand was for a “fulsome” apology. Can this be right?

The Oxford English Dictionary (pictured left) in its entry (sub req’d) for “fulsome” lists six various obsolete usages (in which it simply means abundant or generous) and then gives the following modern definition of that word:

Of language, style, behaviour, etc.: Offensive to good taste; esp. offending from excess or want of measure or from being ‘over-done’. Now chiefly used in reference to gross or excessive flattery, over-demonstrative affection, or the like.

As a note to the definition of “fulsome” in the Compact Oxford English Dictionary Online (no sub req’d) makes clear:

Although the earliest sense of fulsome was ‘abundant’, this is now regarded by many as incorrect; the correct meaning today is said to be ‘excessively flattering’. This gives rise to ambiguity: the possibility that while for one speaker fulsome praise will be a genuine compliment, for others it will be interpreted as an insult.

Merriam-Webster Online (no sub req’d) says that the meaning of the word “fulsome” became a point of dispute when the largely positive meanings

thought to be obsolete in the 19th century, began to be revived in the 20th. The dispute was exacerbated by the fact that the large dictionaries of the first half of the century missed the beginnings of the revival. … [The positive sense] has not only been revived but has spread in its application and continues to do so. The chief danger for the user of fulsome is ambiguity. Unless the context is made very clear, the reader or hearer cannot be sure whether such an expression as “fulsome praise” is meant in [the positive or negative sense] …

This revival has certainly been missed by the OED. I suspect that this is because it is not so much a revival of an older meaning as a straightforward and recent error in supposing that “fulsome” is just a grander word for “full” and thus simply means copious. For that reason most style guides that address the issue deprecate the positive usage.

I can’t imagine that Irish politicians are demanding insincere apologies of each other; I also doubt that they are knowingly in the vanguard of an incipient revival of the older positive usages; I rather suspect that – with some knowledgeable exceptions – they have fallen into the common error of using “fulsome” as a fancy word for “full”. However, in this mistake, they are in good company. In Canada earlier this year, as reported by the Globe and Mail, a lawyer grilling former Prime Minister Brian Mulroney over bribery allegations

suggested that he had not been “fulsome” in his responses. Rather than questioning what the lawyer meant by this adjective, Mulroney just denied whatever the accusation was. “I am being fulsome, and truthful,” …

Indeed, in the New York Times last year, William Safire took President Obama to task for using “fulsome” in this way and for other similar solecisms. His advice is, as always, worth following:

Never use a word sure to sow confusion.

Volokh concurs. When it comes to “fulsome”, then, to avoid common error and unnecessary confusion, we should just say no. If those who have been guilty of its sloppy use (or even of its fulsome misuse) wish to apologise for this mistake, there is only one question: will the apology be fulsome?

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

There is a wonderful essay by Michael Massing in the current edition of the New York Review of Books about the deepening relationship between print and online journalism. In form, it’s a review of Eric Boehlert Bloggers on the Bus: How the Internet Changed Politics and the Press (Free Press | Amazon), which traces the online events that affected the 2008 presidential campaign and reveals the stories of the internet activists who made them all possible, and Bill Wasik And Then There’s This: How Stories Live and Die in Viral Culture (Viking | Amazon), which seeks to demonstrate that the rise of the internet means that our culture is now created from the ground up. Common to both books is the argument that a small online quiver can easily become a massive earthquake in the real world. In fact, Massing’s piece is a fascinating assessment of the state of journalism on the internet, filled with references to all sorts of blogs, but which only tangentially touches on Boehlert’s and Wasik’s book. In that, I suppose, it’s much more like a long blogpost than a traditional book review.

Indeed, Massing’s piece almost resembles a blogpost in another way: the online version has links to many of the online sources referred to in the piece, a practice other publications could adopt, to save me having to add links when I quote paragraphs from newspaper websites – it is this kind of added value that makes online reporting different from the paper kind, and the sooner newspapers realise that the online version is not simply the text of the paper version, the better. Don’t get me wrong, I’m not advocating that the online version replace the paper version – indeed, I read the paper version of the article first – just that online versions should fulfill their potential. And anyway, the Review’s practice of putting a list of links at the start of the article rather than embedding them in the text only goes half way, so in the extracts below, I’ve still had to add the links.

The core of his argument is in this extract (though the whole thing is well worth reading, even on paper, over a cup of coffee):

The News About the Internet

In an online chat with readers earlier this year, New York Times executive editor Bill Keller deplored the “diminishing supply of quality journalism” at a time of “growing demand.” … Keller’s lament—one of a steady chorus rising from the industry—contains a feature common to many of them: a put-down of the Web and the bloggers who regularly comment on Web sites. …

This image of the Internet as parasite has some foundation. Without the vital news-gathering performed by established institutions, many Web sites would sputter and die. In their sweep and scorn, however, such statements seem as outdated as they are defensive. Over the past few months alone, a remarkable amount of original, exciting, and creative (if also chaotic and maddening) material has appeared on the Internet. The practice of journalism, far from being leeched by the Web, is being reinvented there, with a variety of fascinating experiments in the gathering, presentation, and delivery of news. And unless the editors and executives at our top papers begin to take note, they will hasten their own demise.

Massing traces the history of journalistic blogging from the Mickey Kaus and Andrew Sullivan “snip-it-and-comment approach”, via blogs that not only comment on the news but also break it, to “an emerging new breed of ‘hybrids,’ schooled in both the practices of print journalism and the uses of cyberspace” as well as to online commentators and citizen-journalists (though he uses neither of these terms); the internet offers a podium to those

… of all ages and backgrounds who are flush with ideas but lack the means to transmit them. A good example is Marcy Wheeler, … [who] first began blogging in 2004, gaining notice for her posts on the Valerie Plame leak case; in early 2007 she “liveblogged” the Lewis Libby trial. Later that year, after giving up her consulting job, she began blogging full-time for FireDogLake …

“The idea that our work is parasitical is farcical,” Wheeler told me by phone. “There’s a lot of good, original work in the blogosphere. Half of all journalists look at the blogosphere when working on a story.” At the same time, she said, “I’m happy to admit I’m still utterly reliant on journalists …” … “We ought to be talking about a symbiotic rather than a parasitical relationship,” she told me. What disturbs bloggers, she added, are those journalists who reside in “the Village”—shorthand, she said, “for the compliant, unquestioning, conventional wisdom that comes out of Washington. …”.

The blogosphere, by contrast, has proven especially attractive to those who, despite having specialized knowledge about a subject, have little access to the nation’s Op-Ed pages. … Beyond such individual sites, the Web has helped open up entire subjects that were once off-limits to the press. …

But Massing admits that it’s not all roses here in the world of electrons and computer screens; and this allows him a paragraph each on the books putatively under review. First, bloggers often reject the attempts at “balance” that are made by mainstream print publications, though of course

… it’s their willingness to dispense with such conventions that makes the blogosphere a lively and bracing place. This is nowhere more apparent than in the work of Glenn Greenwald. A lawyer and former litigator, Greenwald is a relative newcomer to blogging, having begun only in December 2005, but as Eric Boehlert notes in his well-researched but somewhat breathless Bloggers on the Bus, within six months of his debut he “had ascended to an unofficial leadership position within the blogosphere.” In contrast to the short, punchy posts favored by most bloggers, Greenwald offers a single daily essay of two thousand to three thousand words. In each, he draws on extensive research, amasses a daunting array of facts, and, as Boehlert puts it, builds his case “much like an attorney does.”

Second, Massing quite rightly acknowledges

… some of the more troubling features of the journalism taking shape on the Web. The polemical excesses for which the blogosphere is known remain real. In And Then There’s This, an impressionistic account of the viral culture on the Internet, Bill Wasik describes how “the network of political blogs, through a feedback loop among bloggers and readers,” has produced a machine that supplies the reader with “prefiltered information” supporting his or her own views. According to one study cited by Wasik, 85 percent of blog links were to other blogs of the same political inclination, “with almost no blog showing any particular respect for any blog on the other side.” …

Finally, the Internet remains a hothouse for rumors, distortions, and fabrications. … For all these problems, the Web is currently home to all kinds of intriguing experiments … [which t]aken together … suggest a fundamental change taking place in the world of news.

Massing’s piece offers insights into where this change has come from as well as tantalising glimpses of where it might be going. The key point is that, whilst the world of print journalism may not be dieing, it will need to rejuvenate if it is to thrive. How it responds to that challenge will be interesting. And remember, as it does, please embed those links!

Bonus links: the Review’s podcast page has a conversation between Manning and Charles Petersen about the rise of blogs and the ascent of online journalism (mp3); and while you’re there, check out Fintan O’Toole’s gripping interview by Sasha Weiss about the genius and misfortune of Flann O’Brien (mp3).

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

An article by Marcel Berlins in today’s Guardian raises the issue of internet libel, especially by anonymous bloggers:

The web encourages lies and deceit. It’s impossible to know who lurks behind a funny nickname

On the whole, I can’t complain too much about the readers who respond to my column online … [but] I seriously considered suing one commenter for libel; I would have won, and English law, for purposes of libel litigation, allows the real identity behind an online pseudonym to be discovered.

It is that anonymity that’s at the hub of a debate and vote that takes place in the European Parliament tomorrow. An Estonian MEP, Marianne Mikko, is worried that a growing number of blogs are written with “malicious intentions or hidden agendas”. She proposes that bloggers identify themselves and declare any interests they have in the issue they’re writing about. Her concerns should be taken seriously. … We may soon have to consider devising controls on entry, though what form they’ll take is not easy to envisage. It is possible that we will find out, in five or 10 or 20 years, that, in the internet, we have created a monster we cannot tame, whose capacity for doing harm exceeds any good it once brought.

I couldn’t disagree more with Marianne Mikko’s proposals relating to blogs or with Berlins’ weary acceptance of their inevitably. Unsurprisingly, they have attacted much derision online, especially from blogs politically critical of the EU (see also here from today’s Telegraph online), though there are some rather more balanced assessments as well. For example, European Avenue suggests that Mikko should exercise judgment when reading information; I agree, we should all take responsibility for judging what we read, rather than expecting Mikko’s Big Sister to grade it for quality in advance.

In any event, it is important to be clear on the status of Mikko’s proposal. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites

From an article in The Times by Alex Wade (who blogs as Surf Nation):

Legal blogs: isn’t it time British lawyers staked their claim in the blogosphere?

Should law firms have blogs? In America they are all the rage. Just about every self-respecting law professor has one, many firms believe them to be a must-have accoutrement, and even one or two judges have got in the act.

In Britain only a handful of legal practitioners maintain blogs, but as society increasingly embraces the Web 2.0 world of interactivity, collaboration and social networking, isn’t it time that UK firms staked their claim in the blogosphere? …

It may be, too, that the embedded right to freedom of expression in American society, in contrast to Britons’ tendency to discretion (exemplified, arguably, in our highly developed libel laws), is another factor in transatlantic enthusiasm for the blogosphere.

I’m sure exactly the same questions can be asked in Ireland. Read the rest of this entry »

If you like this post, please click on this link to pass it on. Thanks!

Hide Sites