The tort of fraudulent deceit is distinct from the contract defense of fraud and is premised on the fact that one has deceived another, resulting in harm to the other.

Not all deception is actionable, however. To prevail in a claim for fraud, the plaintiff (i.e., the person bringing the lawsuit) must show:

  1. The defendant represented to the plaintiff that a fact was true;
  2. The defendant’s representation was false;
  3. The defendant knew the representation was false when he made it, or that he 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 defendant’s representation;
  6. The plaintiff was harmed; &
  7. The plaintiff’s reliance on the defendant’s representation was a substantial factor in causing his/her/its harm.

The misrepresentation may be a knowingly false representation, the concealment or nondisclosure of certain information, or a promise to perform without the intent to actually perform.

In addition to compensatory damages (i.e., a money award to “make plaintiff whole”), the plaintiff may also, in the appropriate case, recover punitive damages.

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