In civil litigation, allegations of fraud might be based on a misrepresentation of fact that was either intentional or negligent. For a statement to be an intentional misrepresentation, the person who made it must either have known the statement was false or been reckless as to its truth. The speaker must have also intended that the person to whom the statement was made would rely on it. The hearer must then have reasonably relied on the promise and also been harmed because of that reliance.
A claim for fraud based on a negligent misrepresentation differs in that the speaker of the false statement may have actually believed it to be true; however, the speaker lacked reasonable grounds for that belief.
Fraud may be committed based upon withheld information rather than the actual communication. Many laws obligate a person to disclose relevant information and a person may easily defraud another by failing to disclose such information. For example, if a company failed to disclose to new creditors of a previous billion dollar loan, this could be a fraudulent failure to disclose if the lack of disclosure was intended to get the company better financing terms with the new creditors.
A promise that goes unfulfilled may give rise to a claim for fraud only under particular circumstances. For example, in California law, a false promise is only fraudulent if the promisor intended both not to perform on the promise and also that that the promisee would rely on the promise; and, the promisee must have reasonably relied on the promise and been harmed as a result of that reasonable reliance. When the promise was made as part of a contract, most states forbid a plaintiff from recovering under both contract law and tort law.
Lastly, opinions are not usually actionable as fraud except under very specific circumstances defined by either the common law or statutes in each state. In California, for example, a jury may be instructed that an opinion can be considered a representation of fact if it is proven that the speaker “claimed to have special knowledge of the subject matter” that the listener did not have; OR that the representation was made “not in a casual expression of belief, but in a way that declared the matter to be true;” OR if the speaker was in a position of “trust and confidence” over the listener; OR if the listener “had some other special reason to expect” the speaker to be reliable. Once the jury decides that an opinion qualified as a misrepresentation of fact under the circumstances, the plaintiff must still demonstrate all of the other elements of an intentional or negligent misrepresentation already described, such as reasonable reliance and resulting harm.
In criminal law, fraud usually takes very specific forms, such as bankruptcy fraud, credit card fraud, or healthcare fraud. California law, for example, also recognizes distinct crimes for check fraud, access card fraud, insurance fraud, and making false financial statements. Some criminal fraud statutes might be classified under laws forbidding larceny, others under forgery, and others as a crime covered by laws regarding a specific industry, like insurance or banking laws. Suspicions of criminal fraud should be reported to law enforcement authorities.
[Last updated in October of 2022 by the Wex Definitions Team]