Fraud: The Necessity for an Intent to Deceive
![handle is hein.journals/uclalr5 and id is 585 raw text is: U.C.L.A. LAW REVIEW
Volume 5 July, 1958 Number 4
Fraud: The Necessity for on Intent to Deceive*
BY PAGE KEETON**
INTRODUCTION
Notwithstanding the wealth of excellent legal literature dealing with
the nature of the fault, if any, required for recovery and with the measure
of that recovery when a disappointed party to a bargaining transaction
seeks damages against a mis-representer for inducing such transaction,'
there is a considerable amount of confusion as well as actual conflict
regarding these problems. Judges and commentators have often given
different interpretations to ambiguous statements that may be found in
many of the judicial opinions, and this in turn has been followed by
inconsistent and conflicting results that might not otherwise have been
reached. A misrepresenter may be regarded as being at fault, within the
meaning of that term as it is customarily used in tort actions, if he made
the misstatement fraudulently or negligently. Other expressions that may
be considered as synonymous with the term fraudulently are dishonest-
ly, with scienter, or with an intent to deceive. A substantial amount
of the uncertainty has resulted from different conceptions as to the mean-
ing of dishonesty or scienter, with many courts, and perhaps a majority,
taking the narrow position that an honest belief on the part of the mis-
representer that the facts are in conformity with his assertion necessarily
*This is a continuation of a study begun ten years ago, with two articles appearing
in Volumes I and II of the Oklahoma Law Review, entitled Actionable Misrepre-
sentation; Legal Fault as a Requirement.
** Dean and Professor of Law, University of Texas. Visiting Professor of Law, Uni-
versity of California, Los Angeles, Spring, 1958.
' HARPER & JAMES, TORTS § 7.3 (1956); MoRIuS, TORTS 258 (1953); PROSSER,
TORTS 537 (2d ed. 1955); Smith, Liability for Negligent Language, 14 HARv. L.
REV. 184 (1900); Williston, Liability for Honest Misrepresentation, 24 HARv. L.
REV. 415 (1911); Bohlen, Misrepresentation as Deceit, Negligence, or Warranty,
42 HARv. L. REV. 733 (1929) ; Carpenter, Responsibility for Intentional, Negligent
and Innocent Misrepresentation, 24 ILL L. REV. 749 (1930) ; Harper and McNealy,
A Synthesis of the Law of Misrepresentation, 22 MINN. L. REV. 939 (1938); GREEN,
Deceit, 16 VA. L. REV. 749 (1930). See note, 21 MINN. L. REV. 434 (1937) dis-
cussing briefly the several views expressed in the foregoing articles. See also,
EWART, ESTOPPEL 83 (1900) ; RESTATEMENT, TORTS §§ 525, 552 (1938).
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Fraud: The Necessity for an Intent to Deceive
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