law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...

, (

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively called Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, many of the words and much of the vocabulary stem from English. ...

for "knowingly", ) is a legal term for

intent Intentions are mental states in which the agent commits themselves to a course of action. Having the plan to visit the zoo tomorrow is an example of an intention. The action plan is the ''content'' of the intention while the commitment is the ''a ...

knowledge Knowledge can be defined as awareness of facts or as practical skills, and may also refer to familiarity with objects or situations. Knowledge of facts, also called propositional knowledge, is often defined as true belief that is distin ...

of wrongdoing. An offending party then has knowledge of the "wrongness" of an act or event prior to committing it. For example, if a man sells a car with brakes that do not work to his friend, but the seller does not know about the brake problem, the seller then has no . If he sells the car and knew of the problem before he sold the car, he has .

Scienter action in tort law

The scienter action is a category within

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...

law in some

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

jurisdictions that deals with the damage done by an animal directly to a human. It had a long history in

English law English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, b ...

until it was abolished by the Animals Act 1971. An action in the

common law jurisdictions In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...

in which it has not been extinguished by statute is in addition to the torts of

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...

and

nuisance Nuisance (from archaic ''nocence'', through Fr. ''noisance'', ''nuisance'', from Lat. ''nocere'', "to hurt") is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public (also "common") ...

or more bespoke torts like cattle trespass. If an animal is known to behave in a certain way and is expressed on a person causing injury, an action can be taken in this tort, which also is not available in

New South Wales ) , nickname = , image_map = New South Wales in Australia.svg , map_caption = Location of New South Wales in AustraliaCoordinates: , subdivision_type = Country , subdivision_name = Australia , established_title = Before federation , es ...

, the

Australian Capital Territory The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding township#Aust ...

South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest o ...

New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...

. In those jurisdictions, the actions involving animals need to be in nuisance or negligence. To be successful, the plaintiff needs to take action against the person in control of the animal. It is

strict liability In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant. ...

, requiring no more than proof of injury, the animal's having a problematic trait, and the knowledge of the person in control about the trait in the animal. Strict liability means that there is no need to argue fault in the form of wilful intent or negligence on the part of the animal or its controller. The only defence is if it can be proved the plaintiff voluntarily assumed the risk of injury by their actions, or if the plaintiff was the cause of the injury. It is common to distinguish between harmless animals and wild animals, as no scienter is needed for wild animals. Animals are classed as wild or harmless on the basis of species or kind, not on the basis of being a tame individual. An elephant is considered wild regardless of its use. The scienter action is referred to in '' Rylands v. Fletcher'' in that one who keeps a wild thing "must keep it at his peril" to make reference to part of Justice

Colin Blackburn Colin Blackburn, Baron Blackburn, (18 May 1813 – 8 January 1896) was a Scottish judge who is remembered as one of the greatest exponents of the common law. At one point, Blackburn was a judge in the Court of Exchequer Chamber. On 16 October ...

's comment.

General use

Scienter is generally used as a necessary condition of certain causes of civil action and as a standard for civil liability or criminal guilt. For instance, Section 1960 of Title 18 of the

United States Code In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...

provides a ''scienter'' condition, requiring that the accused "knowingly conducts, controls, manages, supervises, directs, or owns" a prohibited type of business. The concept of scienter is uniformly expressed in the text of the U.S. Code as the word ''know'', appearing as "knowingly", "actual knowledge", "known", "knowledge fairly implied", etc. The word ''scienter'' is not used in the text of the U.S. Code, although it appears once in a section title. This use reflects the development of American law speaking plainly instead of employing Latin phrases of

legal English Legal English is the type of English as used in legal writing. In general, a legal language is a formalized language based on logic rules which differs from the ordinary natural language in vocabulary, morphology, syntax, and semantics, as well ...

In contract law

''Scienter'' is also an element of the

contract law A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to t ...

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

for

breach of contract Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other part ...

in which the aggrieved party alleges some destruction of the

meeting of the minds Meeting of the minds (also referred to as mutual agreement, mutual assent or ''consensus ad idem'') is a phrase in contract law used to describe the intentions of the parties forming the contract. In particular, it refers to the situation where t ...

, also known as mutual assent, because of

fraud In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...

misrepresentation In common law jurisdictions, a misrepresentation is a false or misleading '' R v Kylsant'' 931/ref> statement of fact made during negotiations by one party to another, the statement then inducing that other party to enter into a contract. The ...

or duress

per minas ''Per minas'', in English Common Law, is to engage in behaviour "by means of menaces or threats". The term comes from Latin. ''Per minas'' has been used as a defence of duress to certain crimes, as affecting the element of ''mens rea''. Will ...

. ''Scienter'' can also be used as a

defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense indus ...

to a breach of contract

lawsuit - A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...

Element of claim of securities fraud

In the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

, to prevail in a securities fraud claim under Section 10(b) of the

Securities Exchange Act of 1934 The Securities Exchange Act of 1934 (also called the Exchange Act, '34 Act, or 1934 Act) (, codified at et seq.) is a law governing the secondary trading of securities ( stocks, bonds, and debentures) in the United States of America. A land ...

, a plaintiff must allege and prove that the defendant acted with ''scienter''. The

Private Securities Litigation Reform Act The Private Securities Litigation Reform Act of 1995, , 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C.) ("PSLRA") implemented several substantive changes in the United States that have affected certain cases brought under the ...

of 1995 added the requirement that a plaintiff must plead facts giving rise to a "strong inference" of ''scienter''. The meaning of ''scienter'' under the 1995 law has been very controversial since its enactment. The

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

issued a decision that clarified what was to be understood as a "strong inference." In ''Tellabs, Inc. v. Makor Issues & Rights, LTD'' (21 June 2007), an 8–1 ruling of the Court defined the standard that the plaintiff had to meet to proceed with a securities fraud litigation. A complaint must show "cogent and compelling evidence" of ''scienter''.

References

External links

{{Wiktionary
Split Widens on Scienter Pleading Standard Under the PSLRA
''

Cadwalader, Wickersham & Taft Cadwalader, Wickersham & Taft LLP (known as Cadwalader) is a white-shoe law firm, and is New York City's oldest law firm and one of the oldest continuously operating legal practices in the United States. Attorney John Wells founded the practice i ...