"Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent¹ , with intent to deceive another party thereto of his agent, or to induce him to enter into the contract:—

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(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

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(2) the active concealment of a fact by one having knowledge or belief of the fact;

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(3) a promise made without any intention of performing it;

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(4) any other act fitted to deceive;

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(5) any such act or omission as the law specially declares to be fraudulent.

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Explanation.—Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak² , or unless his silence is, in itself, equivalent to speech.

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Illustrations

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(a) A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B about the horses unsoundness. This is not fraud in A.

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(b) B is As daughter and has just come of age. Here, the relation between the parties would make it As duty to tell B if the horse is unsound.

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(c) B says to A—"If you do not deny it, I shall assume that the horse is sound." A says nothing. Here, As silence is equivalent to speech.

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(d) A and B, being traders, enter upon a contract. A has private information of a change in prices which would affect Bs willingness to proceed with the contract. A is not bound to inform B.

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1. Cf. s. 238, infra.

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2. See s. 143, infra.

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