Mistake vs misrepresentation

Bill Gassett — April 30, Massachusetts Bedroom Misrepresentation With Septic Systems One of the things that Massachusetts home owners who are serviced by a private septic system need to be keenly aware of when selling their home is to make sure they do not misrepresent the bedroom count.

Mistake vs misrepresentation

What is Fraud Mistake vs misrepresentation purposes of a civil lawsuit, the typical elements of fraud also known as fraudulent misrepresentation are: In order to recover damages for fraud, the plaintiff in a fraud lawsuit must prove all of the elements.

What is a Material Fact Fraud involves the misrepresentation of a material fact. In the context of a fraud case, the fact must be sufficiently important that a reasonable person would have been expected to rely upon the fact.


In a typical fraud case a fact must relate to something that may be proved or disproved. A statement by the defendant of belief, opinion, speculation or prediction will not be deemed a material fact. The statement of opinion, "I think our product is the best on the market," will not support a fraud action.

However, if false, the claim that "An independent testing agency evaluated our product and found it to be the best that you can buy" could support a later action for fraud. Knowledge of Falsity Fraud is an intentional act, so in order to constitute fraud the person making a false representation must either know that the statement is false or make the statement with reckless disregard for its truth.

That is, the plaintiff would not have proceeded with the transaction but for the false representation, impression or promise made by the defendant. It is not necessary that the misrepresentation be the only factor that caused the plaintiff to proceed.

For example, if a used car buyer wants to purchase a used, red Ford Mustang, four or five years old, with no more than 60, miles and that had never been in an accident, any one of the items on the wish list could be a deal breaker.

Even if all of the other requirements are met, reliance upon a Mistake vs misrepresentation on any of those items could support a case for fraud. Back to top What is Silent Fraud Silent fraud, also known as misdirection, may occur when a defendant fails to disclose facts that are material to a transaction, when the when the defendant has a duty to disclose and intends that the plaintiff make an incorrect inference from the non-disclosure.

To prove silent fraud, a plaintiff has the burden of proving each of the following elements: For example, the buyer of a used car will reasonably rely upon its odometer to determine how many miles are on the car.

If the person selling the car knows that the odometer has been rolled back, the seller has a legal duty to inform a prospective buyer of that fact. Back to top Fraud vs. Innocent Misrepresentation Although not an act of fraud, an innocent misrepresentation of material fact may support a legal claim by a party to a transaction who was misled by the false claim.

Key Differences Between Fraud and Misrepresentation

A claim based upon a theory of innocent misrepresentation is similar to a claim for fraud, but it is not necessary that the defendant be proved to have acted with intent. To make a claim of innocent misrepresentation, a plaintiff must normally establish the following elements: A plaintiff may bring an innocent misrepresentation claim under circumstances in which the plaintiff is able to prove that the defendant made a misrepresentation of material fact, but is unable to prove that the defendant did so with the intent to defraud.

A lawsuit based upon innocent misrepresentation may seek damages, or may ask the court to set aside the contract. The buyer may not be able to prove that the seller was aware of the accident or repairs, and thus no be able to prove that the seller knew that the statement as false at the time of the deal.

The buyer may nonetheless be able to convince a court to set aside or rescind the contract based upon a finding of mutual mistake of a material fact: That at the time of the transaction both the buyer and seller believed that the vehicle had never been in an accident, and set a price based upon that mistaken belief, and that if the parties had known the actual facts at that time they either would not have entered into the transaction or would have agreed upon a lower price.

In the absence of clear facts and proof, a plaintiff may include in a complaint more than one theory under which a defendant may be liable. That is true even if there is some degree of inconsistency between the theories of liability presented in the complaint. For example, a plaintiff may bring a claim for fraud, but also include in the complaint a second count alleging innocent misrepresentation based upon mutual mistake.

If the plaintiff is unable to prove at trial that fraud occurred, with the defendant having denied knowledge of the actual facts at the time of the transaction, it may be possible to obtain relief based upon mutual mistake. For example, if a car buyer finds out that a vehicle had been in an accident prior to sale, the buyer may sue the seller alleging both fraud and innocent misrepresentation.

If the car seller denies knowledge of the accident, the car buyer may be unable to prove that the seller knew or should have known about the accident at the time of the sale. However, that denial of knowledge may support relief from the contract based upon a theory of mutual mistake.

No portion of this article may be reproduced without the express written permission of the copyright holder.

Mistake vs misrepresentation

If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, Misrepresentation by a third person does not vitiate consent, unless such misrepresentation has created substantial mistake and . Sep 23,  · LIVE: Wild Animals Fight Powerful Lion vs Elephant - Crocodile vs Jaguar - Discovery Animals AniFamily watching Live now Racist Commercials - .

Expert Answers

Misrepresentation is the action which can be easily defined as a false communication of facts made unintentionally or innocently. Misrepresentation is treated as Fraud if there is an intentional false communication of facts to gain the consent of the other party.

The distinction between an honest mistake and the commitment of fraud is one of intent.

Mistake vs misrepresentation

Whether one intends to mislead another individual or group of people is the difference under the laws of the. In order to avoid unilateral mistakes in a contract, it is essential that the contract be written as clearly as possible. During contract negotiations, the parties should review the contract thoroughly and double check each other’s interpretation of the clauses.

Mistake is classified under common mutual and unilateral mistake. Common, Mutual and Unilateral mistake. in which case the vitiating elements (mistake, misrepresentation, non – disclosure) cannot be pleaded later in an attempt to rescind the Contract.

Any non – performance of its obligation by any party shall now be strictly.

How is a mistake different from an act of fraudulent misrepresentation or fraud? | eNotes