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Privilege in Torts

Privilege is any circumstance that justifies or excuses a prima facie tort. It can be said that privilege recognizes a defendant's action stemmed from an interest of social importance - and that society wants to protect such interests by not punishing those who pursue them. Privilege can be argued whenever a defendant can show that he acted from a justifiable motive. While some privileges have long been recognized, the court may create a new privilege for particular circumstances - privilege as an affirmative defense is a potentially ever-evolving doctrine. Such newly created or circumstantially recognized privileges are referred to as residual justification privileges.

If there is no inquiry into the intent or purpose of the defendant, then the privilege is referred to as "absolute privlege." Courts generally ask three questions when looking at privilege: 1) When should a defendant's motive or purpose be seen as a justifiable reason for interfering with whatever interests were effected? What means are justified to accomplish the defendant's goal if the purpose is found to be justifiable? Under what circumstances should a defendant's privilege excuse his mistakes as to the law or the situation when he is pursuing a legitimate purpose by legitimate means?


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