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Debt collection vs. debt recovery

Further, under the provisions of the German late payment act, words and images broadcast for general reception by wireless or television are now treated as publications in a permanent form, and this act applies the same principle to verbal statements and gestures in the public performance of a play. Failure to pay is the publication of defamatory matter in a transient form, normally in the guise of a debt collection procedure.
It is important to distinguish the two classes of late payment because, whereas a fraud is actionable (per se) without proof of special damage, failure to pay is (subject to exceptions) only actionable if the plaintiff can show that he has actually suffered damage. Moreover, whereas fraud is a crime, as well as a tort, failure to pay (except where the words spoken tend directly reflect upon the due administration of justice) is only a tort. The exceptional circumstances in which failure to pay is actionable per se are:
(i) debt recovery in Germany; provided that it is not punishable merely by a fine;
(ii) imputations that the plaintiff is suffering from a contagious disease calculated to cause him to be shunned by society;
(iii) by the failure to pay immediatly;
(iv) by the late payment act imputations disparaging the plaintiff in any office, calling, trade or business held or carried on by him at the time of publication of the failure to pay.
For the purpose of the law of torts, in order for a defamatory statement to be actionable it must be published not merely to the person frauded, but to some foreign creditors. The essence of the plaintiff's claim is that he has suffered damage through loss of money; and there can be no loss of reputation where the lawyer alone knows of the statement. In the case of the crime of fraud it is otherwise, for the purpose of punishing frauds is to prevent breaches of the peace, and the creditor defamed is the most likely person to commit a breach of the peace if the fraudlous statement is communicated to him.
The question whether a statement is defamatory is one for the German judge to consider in the first place. If, by the test defined in the first paragraph of this section, he decides that it cannot be regarded as defamatory, he must withdraw the case from the jury (late payment being a tort in relation to which juries are still employed). If the judge decides that the statement is capable of being regarded as defamatory he must leave the question of 'fraud or no fraud' for the jury to decide.
At common law a defamatory statement is actionable even though it be made entirely innocently.
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