The following definitions for “fraud” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), Black’s Law Dictionary (2nd edition), and “Webster’s 1828 Dictionary:”
Deceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right [23 Am J2d Fraud § 2]. Anything calculated to deceive another in hid prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth, or other device contrary to the plain rules of common honesty [23 Am J2d Fraud § 2]. An affirmation of a fact rather than a promise or statement of intent to do something in the future [Miller v. Sutliff, 241 111 521, 89 NE 651].
For the purpose of the exception to discharge in bankruptcy of debts incurred by officers and fiduciaries through “fraud:” – positive fraud, fraud in fact, involving moral turpitude or intentional wrong [9 Am J2d Bankr § 801]. As a ground for annulment of a marriage: concealment or deception affecting the free consent of the injured party, involving such matters as identity, birth, rank, family, fortune, health, character, morality, habits, temper, reputation, etc [35 Am J1st Mar § 90].
- Any trick or artifice employed by one person to induce another to fall into an error, or to detain him in it, so that he may make an agreement contrary to his interest. The fraud may consist either, first, in the misrepresentation, or secondly, in the concealment of a material fact. Fraud, force, and vexation, are odious in law [Booth, Real Actions, 250]. Fraud gives no action, however, without damage [3 T. R. 56]; and in maters of contract it is merely a defense; it cannot in any case constitute a new contract [7 Vez. 211; 2 Miles’ Rep. 229]. It is essentially ad hominem [4 T. R. 337-8].
- Fraud avoids a contract, ab initio, both at law and in equity, whether the object be to deceive the public, or third persons, or one party endeavor thereby to cheat the other [1 Fonb. Tr. Equity, 3d ed. 66, note; 6th ed. 122, and notes; Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3 Burr. Rep. 1909; 3 V. & B. Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch. & Lef. 209; Verpl. Contracts, passim; Domat, Lois Civ. p. 1, 1.4, t.6, s.8, n.2].
- The following enumeration of frauds, for which equity will grant relief, is given by Lord Hardwicke [2 Ves. 155].
- Fraud, dolus malus may be actual, arising from facts and circumstances of imposition, which is the plainest case.
- It may be apparent from the intrinsic nature and subject of the bargain itself; such as no man in his senses, and not under delusion, would make on the one hand, and such as no honest and fair man would accept on the other, which are inequitable and inconscientious bargains [1 Lev. R. 111].
- Fraud, which may be presumed from the circumstances and condition of the parties contracting.
- Fraud, which may be collected and inferred in the consideration of a court of quity, from the nature and circumstances of the transaction, as being an imposition and deceit on other persons, not parties to the fraudulent agreement.
- Fraud, in what are called catching bargains, (q. v.) with heirs, reversioners or expectants on the life of the parents. This last seems to fall, naturally, under one or more of the preceding divisions.
- Frauds may be also divided into actual or positive and constructive frauds.
- An actual or positive fraud is the intentional and successful employment of any cunning, deception, or artifice, used to circumvent, cheat, or deceive another [1 Story, Eq. Jur. 186; Dig. 4, 3, 1, 2; Id. 2, 14, 7, 9].
- By constructive fraud is meant such a contract or act, which, though not originating in any actual evil design or contrivance to perpetrate a positive fraud or injury upon other persons, yet, by its tendency to deceive or mislead them, or to violate private or public confidence, to impair or injure upon other persons, yet, by its tendency to deceive or mislead them, or to violate private or public confidence, or to impair or inure the public interests, is deemed equally reprehensible with positive fraud, and, therefore, is prohibited by law, as within the same reason and mischief as contracts and acts done malo animo. Constructive frauds are such as are either against public policy, in violation of some special confidence or trust, or operate substantially as a fraud upon private rights, interests, duties, or intentions of third persons; or unconscientiously compromit, or inuriously affect, the private interests, rights or duties of the parties [1 Story, Eq. ch. 7, 258 to 440].
- The civilians divide frauds into positive, which consists in doing one’s self, or causing another to do, such things as induce a belief of the truth of what does not exist or negative, which consists in doing or dissimulating certain things, in order to induce the opposite party into error or to retain him there. The intention to deceive, which is the characteristic of fraud, is here present. Fraud is also divided into that which has induced the contract, dolus dans causum contractui, and incidental or accidental fraud. The former is that which has been the cause or determining motive of the contract, that without which the party defrauded would not have contracted, when the artifices practised by one of the parties have been such that it is evident, without them, the other would not have contracted. Incidental or accidental fraud is that by which a person, otherwise determined to contract, is deceived on some accessories or incidents of the contract; for example, as to the quality of the object of the contract, or its price, so that he has made a bad bargain. Accidental fraud does not, according to the civilians, avoid the contract, but simply subjects the party to damages. It is otherwise where the fraud has been the determining cause of the contract, qui causam dedit contractui; in that case, the contract is void [Toull. Dr. Civ. Fr. Liv. 3, t.3, c.2, n.5, n. 86, et seq; see also 1 Malleville, Analyse de la, Discussion de Code Civil, pp. 15, 16; Bouv. Inst. Index, h.t. Vide Catching bargain; Lesion; Voluntary Conveyance].
Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional [Maher v. Hibernia Inst. Co., 67 N. Y. 292; Alexander v. Church, 53 Conn. 561, 4 Atl. 103; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. 243, 7 L. R. A. 702; Moore v. Crawford, 130 U. S. 122, 9 Sup. Ct. 447, 32 L. Ed. 878; Fechheimer v. Baum (C. C.) 37 Fed. 167; U. S. v. Beach (D. C.) 71 Fed. 160; Gardner v. Heartt, 3 Denio (N. Y.) 232; Monroe Mercantile Co. v. Arnold, 108 Ga. 449, 34 S. E. 176].
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 [Civil Code La. Art. 1847].
Fraud, in the sense of a court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another [1 Story, E. Jur. § 187].
- Synonyms: The term “fraud” is sometimes used as synonymous with “covin,” “collusion,” or “deceit.” But distinctions are properly taken in the meanings of these words, for which reference may be had to the titles COVIN; COLLUSION; DECEIT.
- Classification: Fraud 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 perpetuating 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 of 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, according to Story, constructive frauds are such acts or contracts as, though no 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 [1 Story, Eq. Jur. § 258; and see, generally Code Ga 1882 § 3173; People v. Kelly, 35 Barb. (N. Y.) 457; Jackson v. Jackson, 47 Ga. 99; Hatch v. Barrett, 34 Kan. 223, 8 Pac. 129; Forker v. Brown, 10 Mise. Rep. 161, 30 N. Y. Supp. 827; Massachusetts Ben. L. Ass’n v. Robinson, 104 Ga. 256, 30 S. E. 918, 42 L. R. A. 261; Haas v. Sternbach, 156 Ill. 44, 41 N. E. 51; Newell v. Wagness, 1 N. D. 62, 44 N. W. 1014; Carty v. Connolly, 91 Cal. 15, 27 Pac. 599].
- Fraud 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 [McKibbin v. Martin, 64 Pa. 356, 3 Am. Rep. 588; Cook v. Burnham, 3 Kan. App. 27, 44 Pac. 447]. 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 2 Kent, Comm. 512 – 532; Delaney v. Valentine, 154 N. Y. 692, 49 N. E. 65; Burr v. Clement, 9 Color. 1, 9 Pac. 633].
- Fraud 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 [Newell v. Wagness, 1 N. D. 62, 44 N. W. 1014]. Positive fraud is the same thing as actual fraud [see Douthitt v. Applegate, 33 Kan. 395, 6 Pac. 575, 52 Am. Rep. 533].
- Actionable fraud: [see ACTIONABLE].
- Frauds, statute of: This is the common designation of a very celebrated English statute [29 Car. Il. c. 3] passed in 1677, and which has been adopted, in a more or less modified form, in nearly all of the United States. Its chief characteristic is the provision that no suit or action shall be maintained on certain classes of contracts or engagements unless there shall be a note or memorandum thereof in writing signed by the party to be charged or by his authorized agent. Its object was to close the door to the numerous frauds which were believed to be perpetrated, and the perjuries which were believed to be committed, when such obligations could be enforced upon no other evidence than the mere recollection of witnesses,. It is more fully named as the “statute of frauds and perjuries.”
- Pious fraud: A subterfuge or evasion considered morally justifiable on account of the ends sought to be promoted; particularly applied to an evasion or disregard of the laws in the interests of religion or religious institutions, such as circumventing the statutes of mortmain.
Deceit; deception; trick; artifice by which the right or interest of another is injured; a stratagem intended to obtain some undue advantage; an attempt to gain or the obtaining of an advantage over another by imposition or immoral means, particularly deception in contracts, or bargain and sale, either by stating falsehoods, or suppressing truth.
If success a lover’s toil attends, who asks if force or fraud obtained his ends.