The law firm
The collection agency
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:
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
(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
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
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.