In law, ( in British English, in American English,

Law Latin Law Latin, sometimes written L.L. or L. Lat., and sometimes derisively referred to as Dog Latin, is a form of Latin used in legal contexts. While some of the vocabulary does come from Latin, much of it stems from English. Law Latin may also be see ...

for "knowingly", , ) is a legal term for

intent An intention is a mental state in which a person 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 '' ...

knowledge Knowledge is an Declarative knowledge, awareness of facts, a Knowledge by acquaintance, familiarity with individuals and situations, or a Procedural knowledge, practical skill. Knowledge of facts, also called propositional knowledge, is oft ...

of wrongdoing, or reckless disregard for the truth. 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, other than breach of contract, 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 cri ...

law in some

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions that deals with the damage done by an animal directly to a human. Tort law is designed to offer retribution for civil wrongs. Scienter within tort law had a long history in

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

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

common law jurisdictions Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

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 care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

and

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

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 New South Wales (commonly abbreviated as NSW) is a States and territories of Australia, state on the Eastern states of Australia, east coast of :Australia. It borders Queensland to the north, Victoria (state), Victoria to the south, and South ...

, the

Australian Capital Territory The Australian Capital Territory (ACT), known as the Federal Capital Territory until 1938, is an internal States and territories of Australia, territory of Australia. Canberra, the capital city of Australia, is situated within the territory, an ...

South Australia South Australia (commonly abbreviated as SA) is a States and territories of Australia, state in the southern central part of Australia. With a total land area of , it is the fourth-largest of Australia's states and territories by area, which in ...

, or New Zealand. In those jurisdictions, the actions involving animals need to be in nuisance or negligence. CH cow 2 cropped

To be successful, the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

needs to take action against the person in control of the animal. The plaintiff can file a

complaint In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...

to initiate a

lawsuit A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today ...

to recover damages. 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. Und ...

, 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 animal Wildlife refers to undomesticated animals and uncultivated plant species which can exist in their natural habitat, but has come to include all organisms that grow or live wild in an area without being introduced by humans. Wildlife was also ...

s, as no scienter is needed for wild animals as long as they are native to their respective regions. 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'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 The United States Code (formally The Code of Laws of the United States of America) is the official Codification (law), codification of the general and permanent Law of the United States#Federal law, federal statutes of the United States. It ...

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 in its statutes.

In contract law

''Scienter'' is also an element of the

contract law A contract is an agreement that specifies certain legally enforceable rights and obligations pertaining to two or more Party (law), parties. A contract typically involves consent to transfer of goods, Service (economics), services, money, or pr ...

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 wher ...

, also known as mutual assent, because of

fraud In law, fraud is intent (law), intentional deception to deprive a victim of a legal right or to gain from a victim unlawfully or unfairly. Fraud can violate Civil law (common law), civil law (e.g., a fraud victim may sue the fraud perpetrato ...

misrepresentation In common law jurisdictions, a misrepresentation is a False statements of fact, false or misleading''Royal Mail Case, R v Kylsant'' 931Question of law, statement of fact made during negotiations by one party to another, the statement then in ...

, or duress per minas. Distinguishing innocent misrepresentation and

fraudulent misrepresentation The tort of deceit is a type of legal injury that occurs when a person intentionally and knowingly deceives another person into an action that damages them. Specifically, deceit requires that the tortfeasor * makes a factual representation, * kn ...

involves determining if scienter exists. In contract fraud, scienter is defined as intent to deceive. ''Scienter'' can also be used as a defence to a breach of contract

Element of claim of securities fraud

In the United States, 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 t ...

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 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 turn on question ...

issued a decision that clarified what was to be understood as a "strong inference." In '' Tellabs, Inc. v. Makor Issues & Rights, Ltd.'', 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

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