Fraud can be both a civil tort and a criminal offense. The elements of fraud differ depending on whether the claim is brought in civil or criminal court and the applicable jurisdiction.
In civil litigation, a fraud claim may include an intentional misrepresentation, a negligent misrepresentation, or, in some circumstances, a false promise.
- Intentional misrepresentation occurs when a person makes a false statement of fact knowing that it is false or recklessly disregarding whether it is true, intending that another person rely on the statement. The person to whom the statement was made must reasonably rely on it, and that reliance must cause harm.
- Negligent misrepresentation differs because the person making the false statement may honestly believe it to be true. The problem is that the person lacked reasonable grounds for that belief. Negligent misrepresentation is a separate tort and does not require an intent to defraud, although it generally requires an intent to induce reliance, reasonable reliance, and results in harm. A broken promise is not always fraud.
- A false promise may support a fraud claim when, among other requirements, the person making the promise did not intend performance during consideration, and intended that the other person rely on the promise. The other person must have reasonably relied on the promise, the promise must not have been performed, and the reliance must have caused harm. For example, California recognizes false promise as a form of fraud and describes its elements in California Civil Jury Instructions (CACI) No. 1902.
At times, a contract claim and a fraud claim may arise from the same circumstance. Whether a plaintiff may pursue both claims depends on the jurisdiction and the nature of the alleged misconduct. A plaintiff generally cannot recover twice for the same injury, but a contract does not necessarily prevent a separate tort claim based on fraud or another independent legal obligation. Opinions are not usually actionable as misrepresentations of fact; however, there are important exceptions. Under California law, an opinion may be treated as a representation of fact when the circumstances give the listener a particular reason to regard it as factual. CACI No. 1904 identifies circumstances including when the speaker claims special knowledge that the listener does not have, presents the opinion as a statement of fact rather than a casual expression of belief, occupies a position of trust and confidence, or has some other special reason to expect the listener to rely on the opinion. Even when an opinion is treated as a representation of fact, the plaintiff must still prove the other required elements of the applicable fraud or misrepresentation claim, including reasonable reliance and resulting harm.
Criminal fraud is generally defined by specific statutes rather than by one universal offense. Examples include bankruptcy fraud, credit card fraud, health care fraud, check fraud, access card fraud, insurance fraud, and making false financial statements. Depending on the jurisdiction and the circumstances, fraudulent conduct may also be prosecuted under laws regarding theft, forgery, among other crimes covered by laws for a specific industry, such as insurance or banking laws. Therefore, the specific elements and penalties depend on the applicable statute and jurisdiction.
[Last reviewed in September of 2026 by the Wex Definitions Team]