- fraud
- An intentional perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture. Delahanty v. Fist Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243, 1251.A generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. Johnson v. McDonald, 170 Okl. 117, 39 P.2d 150."Bad faith" and "fraud" are synonymous, and also synonyms of dishonesty, infidelity, faithlessness, perfidy, unfairness, etc.Elements of a cause of action for "fraud" include false representation of a present or past fact made by defendant, action in reliance thereupon by plaintiff, and damage resulting to plaintiff from such misrepresentation. Citizens Standard Life Ins. Co. v. Gilley, Tex.Civ.App., 521 S.W.2d 354, 356.As distinguished from negligence, it is always positive, intentional.It comprises all acts, omissions, and concealments involving a breach of a legal or equitable duty and resulting in damage to another. And includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth, or by look or gesture. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other.See also actionable fraud- cheat- constructive fraud- deceit- intrinsic fraud- material fact- promissory fraud- reliance- actionable fraud.@ actual fraud@ constructive fraud@ actual or constructive fraudactual or constructive fraudFraud is either actual or constructive. Actual fraud consists in deceit, artifice, trick, design, some direct and active operation of the mind; it includes cases of the intentional and successful employment of any cunning, deception, or artifice used to circumvent or cheat another. It is something said, done, or omitted by a person with the design of perpetrating what he knows to be a cheat or deception.Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another. Or, as otherwise defined, it is an act, statement or omission which operates as a virtual fraud on an individual, or which, if generally permitted, would be prejudicial to the public welfare, and yet may have been unconnected with any selfish or evil design. Or, constructive frauds are such acts or contracts as, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, are yet, by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, deemed equally reprehensible with actual fraud. Constructive fraud consists in any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, in any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.+ constructive fraudExists where conduct, though not actually fraudulent, has all actual consequences and all legal effects of actual fraud. Agair Inc. v. Shaeffer, 232 Cal.App.2d 513, 42 Cal.Rptr. 883, 886.Breach of legal or equitable duty which, irrespective of moral guilt, is declared by law to be fraudulent because of its tendency to deceive others or violate confidence. Daves v. Lawyers Sur. Corp., Tex.Civ.App., 459 S.W.2d 655, 657.See also fraud@ extrinsic fraudFraud which is collateral to the issues tried in the case where the judgment is rendered. Type of deceit which may form basis for setting aside a judgment as for example a divorce granted ex parte because the plaintiff-spouse falsely tells the court he or she is ignorant of the whereabouts of the defendantspouse. Patrick v. Patrick, 245 N.C. 195, 95 S.E.2d 585@ fraud in fact or in lawFraud is also classified as fraud in fact and fraud in law. The former is actual, positive, intentional fraud. Fraud disclosed by matters of fact, as distinguished from constructive fraud or fraud in law. Fraud in law is fraud in contemplation of law; fraud implied or inferred by law; fraud made out by construction of law, as distinguished from fraud found by a jury from matter of fact; constructive fraud (q.v.).See also fraud in the factum- legal or positive fraud, below@ fraud in the executionMisrepresentation that deceives the other party as to the nature of a document evidencing the contract@ fraud in the factumMisrepresentation as to the nature of a writing that a person signs with neither knowledge nor reasonable opportunity to obtain knowledge of its character or essential terms.See U.C.C. No. 3-305(2Xc).See also fraud in fact or in law, above@ fraud in the inducementFraud connected with underlying transaction and not with the nature of the contract or document signed. Misrepresentation as to the terms, quality or other aspects of a contractual relation, venture or other transaction that leads a person to agree to enter into the transaction with a false impression or understanding of the risks, duties or obligations she has undertaken.@ intrinsic fraudThat which pertains to issue involved in original action or where acts constituting fraud were, or could have been, litigated therein. Fahrenbruch v. People ex rel. Taber, 169 Colo. 70, 453 P.2d 601. Perjury is an example of intrinsic fraud. Larceny.See larceny (larceny by fraud or deception).+ intrinsic fraudThat fraud which occurs within framework of actual conduct of trial and pertains to and affects determination of issues presented therein, and it may be accomplished by perjury, or by use of false or forged instruments, or by concealment or misrepresentation of evidence. Auerbach v. Samuels, 10 Utah 2d 152, 349 P.2d 1112, 1114.Fraud is "intrinsic fraud" where judgment is founded on fraudulent instruments or perjured evidence or the fraudulent actions pertain to an issue involved in original action and litigated therein. Alleghany Corp. v. Kirby, D.C.N.Y., 218 F.Supp. 164, 183.Species of fraud which renders the document void as, for example, an instrument signed by one who had neither knowledge nor reasonable opportunity to obtain knowledge of its character or its essential terms, is not enforceable even by a holder in due course because such fraud is intrinsic. U.C.C. No. 3-305(2Xc)@ legal fraud@ positive fraud@ legal or positive fraudlegal or positive fraudFraud is also said to be legal or positive. The former is fraud made out by legal construction or inference, or the same thing as constructive fraud. Positive fraud is the same thing as actual fraud. Nocatee Fruit Co. v. Fosgate, C.C.A.Fla., 12 F.2d 250, 252.+ legal fraudContracts or acts as, though not originating in actual evil design to perpetrate fraud, yet by their tendency to mislead others or to violate confidence, are prohibited by law. Ruedy v. Toledo Factories Co., 61 Ohio App. 21, 22 N.E.2d 293, 297, 15 O.O. 56.Breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests. Capitol Rod & Gun Club v. Lower Colorado River Authority, Tex.App., 622 S.W.2d 887, 892.Misrepresentation of a material fact made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party to his damages constitutes "legal fraud." Coffey v. Wininger, 156 Ind.App. 233, 296 N.E.2d 154, 160.Synonymous with "constructive fraud". Purcell v. Robertson, 122 W.Va. 287, 8 S.E.2d 881, 883; Tom Reed Gold Mines Co. v. United Eastern Mining Co., 39 Ariz. 533, 8 P.2d 449, 451.For definition of constructive fraud, see fraud@ mail and wire fraudCriminal offense of using mails or interstate wires to create or in furtherance of a scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses. 18 U.S. C.A. No.No. 1341, 1343.@@ tax fraudFederal offense of willfully attempting to evade or defeat the payment of taxes due and owing. I.R.C. No. 7201.Tax fraud falls into two categories: civil and criminal. Under civil fraud, the IRS may impose as a penalty an amount equal to 75 percent of the underpayment. I.R.C. No. 6653(b).Fines and/or imprisonment are prescribed for conviction of various types of criminal tax fraud. I.R.C. No.No. 7201-7207. Both civil and criminal fraud require a specific intent on the part of the taxpayer to evade the tax; mere negligence is not enough.Criminal fraud requires the additional element of willfulness (i.e., done deliberately and with evil purpose). In practice, it becomes difficult to distinguish between the degree of intent necessary to support criminal, rather than civil, fraud. In either situation, the IRS has the burden of proving fraud@
Black's law dictionary. HENRY CAMPBELL BLACK, M. A.. 1990.
