Is there a legal term for this type of deceptive behavior?
May 20, 2018 10:48 AM   Subscribe

Since I don't know what to call it (duh!) here are a couple examples. Thank you.

1) Hypothetical small claims court situation: Designer made a logo for Client. Client won't pay claiming work was "unprofessional", however, Client has printed business cards using the logo.

2) Hypothetical rental situation: Tenant wants to withhold rent because Landlord delayed an "urgent" repair, however, Tenant delayed to report the problem by the same amount of time.

3) Hypothetical restaurant situation: Patron demands a refund because their meal was "inedible", however, Patron ate almost all of it.

The common thread is that the person wants something of value, supposedly because they were wronged, but their actions show otherwise. I thought of "negotiating in bad faith" but it's not quite right, especially because the deceptive person has likely convinced themselves that they are in the right (but only as long as the other party bears the cost).
posted by rada to Law & Government (10 answers total) 2 users marked this as a favorite
 
I would call each of those "losing arguments".
posted by saeculorum at 10:57 AM on May 20, 2018 [3 favorites]


Depending on the context, I think an English lawyer would analyse those examples as involving either breach of contract or unjust enrichment. If I have received something of value from you and refuse to pay, even though I promised to pay, I am usually liable to pay in order to perform my promise unless something has gone so wrong that the entire contract ceases to exist (e.g. because of a very serious breach by you). In the latter scenario, if I have received something of value from you and refuse to pay, and my promise to pay is no longer binding because the contract has ceased to exist, I may still be liable to give up the value of what I have received in the law of unjust enrichment.
posted by Aravis76 at 11:03 AM on May 20, 2018 [3 favorites]


The non-scholarly name for this gambit is "having your cake and eating it, too."
posted by BostonTerrier at 11:05 AM on May 20, 2018 [9 favorites]


(2) is failing to mitigate damages, but only up to the point that the condition was actually reported to the landlord.
posted by praemunire at 11:10 AM on May 20, 2018


"Actions speak louder than (self-serving) words."
posted by Sunburnt at 11:54 AM on May 20, 2018 [1 favorite]


There isn't really a legal term for these three scenarios. In each one, the person's conduct is inconsistent with their legal position, but there isn't a special term for that other than "your conduct is inconsistent with your position," I think.

A sort of related concept is "election of remedies" - which, in some circumstances, prohibits a plaintiff from "having their cake and eating it too" - but I don't think it really applies to these specific hypotheticals.
posted by Mid at 12:06 PM on May 20, 2018 [2 favorites]


I'm not a lawyer. 1 and 3 are pretty much theft. 1 is posible breach of contract, depending on the contract existing, etc.

If I'm reading 2 right- AC died a week ago, and renter didn't report it during that week- landlord didn't know and can't be held responsible... But if landlord delays a second week, that's also probably breach of contract and or a violation of rental/ habitiabitaly laws, so then the tennant has a case.
posted by Jacen at 12:50 PM on May 20, 2018 [4 favorites]


This is a bit counter-intuitive but nos. 1 and 3 can be perfectly permissible under the general headings of reliance and of mitigation of damages. An unprofessional logo is better than no logo if I simply must have business cards now — but doesn’t oblige me to pay if the logo did not satisfy the contract. “Inedible” food may still be eaten if you’re hungry and all other restaurants are closed. No. 2 is no problem at all — a breach of contract or violation of duty doesn’t compel you to complain at any particular time (with very long dated caps at statutes of limitation and the doctrine of laches).
posted by MattD at 4:06 PM on May 20, 2018 [2 favorites]


No. 2 is no problem at all — a breach of contract or violation of duty doesn’t compel you to complain at any particular time

Unless the contract contains a notice-and-cure provision, which most U.S. residential leases will.
posted by praemunire at 9:48 PM on May 20, 2018 [1 favorite]


These are different situations.

1) Breach of contract (agreed to pay and didn't); likely also copyright infringement - without the agreed-on payment to trigger the exchange of rights, the logo is owned by the artist. Artist should tack the contract breach complaint to copyright infringement complaint, since that can include a $150,000 ruling. (If the design is registered.)

2) The issue becomes the landlord's problem when the tenant reported it; the fact that the tenant didn't report it until it was "urgent" is fairly irrelevant. Normally, the landlord has a certain amount of time to deal with issues; "urgent" ones may bump that up--but any court would look at the conditions that made it urgent. ("Big storm blew off half my roof:" Landlord expected to address immediately. "Storm gutter on the NW corner has been sagging for months and has finally broken; fix now:" court may decide tenant can wait 30 days or so.)

In any case, withholding rent is often not legal - in many states, the tenant's option is to fix it themselves and bill the landlord, and possibly apply rent toward the fix. This kind of issue is common in landlord/tenant disputes; check local laws for details.

3) Restaurant is not required to refund meals at all. Many do, if the meal is claimed to be inedible; many refuse if it's mostly been eaten. However, it's possible to find an inedible meal after eating 3/4 of it... food tasted off, a bit too spicy, and partway through the customer discovers a bit of rotten meat and realizes he's likely to be sick all day tomorrow from it. But mostly - restaurants will ignore this kind of claim.

There's no specific term for situations where a customer claims he's owed something for free because he doesn't like what he received. If there's a pattern of it, it's a kind of fraud: entering a contract with the intent of cheating the other person.
posted by ErisLordFreedom at 11:41 PM on May 20, 2018 [2 favorites]


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