deceit

Making a representation of facts by either words or conduct which is false or which the maker genuinely believes not to be true amounts to false representation.

There are generally three aspects of the requirement of false representation of facts and they include:

• a. The false representation may be made by way of written or spoken words or by conduct.

• b. Non-disclosure of the truth or silence about a situation does not constitute fraud as a general rule. However, silence will constitute deceit in the following instance:

• 1. Where facts distort positive truth.
• 2. Where a true representation subsequently becomes untrue and the maker keeps silent about the change.
• 3. Where the duty to disclose is imposed by statute.

• c. The third aspect concerns statements of intention.

A statement of intention is a representation of a fact which the maker intends to carry out in the future. A statement of intention or opinion is usually treated as a representation of fact whenever made and the maker is held liable if it is proven that he never held such intentions or that the opinion or view held out is false. Edgington v. Fitzmaurice (1885) 29 Ch.D 459.

The plaintiff must prove the following in order to succeed in an action for deceit:

• a. That the defendant made a false representation to him.
• b. That the defendant intended that the false representation be acted upon by him.
• c. That he did in fact act upon the false representation made by the defendant.
• d. That the defendant knew that the representation was false.
• e. That he suffered loss as a result of acting on the false representation made by the defendant.

A defendant will not be liable for deceit in the following instances:

• a. Where the plaintiff did not rely on the representation.
• b. Where the plaintiff knew that the representation was false but still acted on it.
• c. Where the plaintiff acted on the representation after an independent contractor’s investigation of the matter.

The tort of deceit is not actionable per se. A plaintiff must prove that he incurred actual damage in order to succeed in an action for deceit. It is irrelevant that the defendant did not benefit from the deceit insofar as the plaintiff suffered damage as a result of the deceit.

The remedies available to a party in an action for deceit are the following:

• a. Award of damages to the party that suffered from the deceit.
• b. Criminal prosecution where the deceit also amounts to a crime.
• c. Restitution of any money or property that may have passed illegally between the parties or any other party.