DECEIT - California Civil Code
section 1710 defines deceit for purposes of an action
for fraud as: 'either: 1. The suggestion, as a fact,
of that which is not true, by one who does not believe
it to be true; 2. The assertion, as a fact, of that
which is not true, by one who has not reasonable ground
for believing it to be true; 3. The suppression of
a fact, by one who is bound to disclose it, or who
gives information of other facts which are likely
to mislead for want of communication of that fact;
or, 4. A promise, made without any intention of performing
it.'
A fraudulent misrepresentation or contrivance, by
which one man deceives another, who has no means of
detecting the fraud, to the injury and damage of the
latter.
Fraud, or the intention to deceive, is the very essence
of this injury, for if the party misrepresenting was
himself mistaken, no blame can attach to him. The
representation must be made malo animo, but whether
or not the party is himself to gain by it is wholly
immaterial.
Deceit may not only be by asserting a falsebood deliberately
to the injury of another as, that Paul is in flourishing
circumstances, whereas he is in truth insolvent; that
Peter is an honest man, when he knew him to be a,
rogue; that property, real or personal, possesses
certain qualities, or belongs to the vendor, whereas
he knew these things to be false; but by any act or
demeanor which would naturally impress the mind of
a careful man with a mistaken belief.
Therefore, if one whose manufactures are of a superior
quality, distinguishes them by a particular mark,
which facts are known to Peter, and Paul counterfeits
this work, and affixes them to articles of the same
description, but not made by such person, and sells
them to Peter as goods of such manufacture, this is
a deceit.
Again, the vendor having a knowledge of a defect
in a commodity which cannot be obvious to the buyer,
does not disclose it, or, if apparent, uses an artifice
and conceals it, he has been guilty of a fraudulent
misrepresentation for there is an implied condition
in every contract that the parties to it act upon
equal terms, and the seller is presumed to have assured
or represented to the vendee that he is not aware
of any secret deficiencies by which the commodity
is impaired, and that he has no advantage which himself
does not possess.
But in all these cases the party injured must have
no means of detecting the fraud, for if he has such
means his ignorance will not avail him in that case
he becomes the willing dupe of the other's artifice,
and volenti non fit injuria. For example, if a horse
is sold wanting an eye, and the defect is visible
to a common observer, the purchaser cannot be said
to be deceived, for by inspection he might discover
it, but if the blindness is only discoverable by one
experienced in such diseases, and the vendee is an
inexperienced person, it is a deceit, provided the
seller knew of the defect.
The remedy for a deceit, unless the right of action
has been suspended or discharged, is by an action
of trespass on the case. The old writ of deceit was
brought for acknowledging a fine or the like, in another
name, and this being a perversion of law to an evil
purpose and a high contempt, the act was laid contra
pacem and a fine imposed upon the offender.
When two or more persons unite in a deceit upon another,
they may be indicted for a conspiracy.
