Estate Planning and Business Law

FRAUD

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact with the intention of depriving the plaintiff of property or of a legal right or otherwise to cause plaintiff injury.

The elements of fraud, which give rise to the tort action for deceit, are: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff's reliance on the defendant's representation was a substantial factor in causing that harm to the plaintiff. However, the tort is sometimes stated with five, or even four, elements.

It is the element of intent which makes the fraud actionable, irrespective of any contractual or fiduciary duty one party might owe the other.

It is not essential to liability for fraud that the person charged should have received any benefit. For example, the person may be liable for misrepresentations concerning property that he or she does not own.

Nine of the 12 jurors must agree on all the elements of fraud. However, this requirement is satisfied if 9 of the 12 jurors agree that some act of fraud was committed; they do not have to agree on the nature of the specific act.

California Business and Estate Planning Attorney San Ramon, Contra Costa County

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