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Bouvier's Law Dictionary, Revised 6th Edition (1856)

FRAUD, contracts, torts. Any trick or artifice employed by one person to
induce another to fall into an error, or to detain him in it, so that he may
make an agreement contrary to his interest. The fraud may consist either,
first, in the misrepresentation, or, secondly, in the concealment of a
material fact. Fraud, force and vexation, are odious in law. Booth, Real
Actions, 250. Fraud gives no action, however, without damage; 3 T. R. 56;
and in matters of contract it is merely a defence; it cannot in any case
constitute a new contract. 7 Vez. 211; 2 Miles' Rep. 229. It is essentially
ad hominem. 4 T. R. 337-8.
2. Fraud avoids a contract, ab initio, both at law and in equity,
whether the object be to deceive the public, or third persons, or one party
endeavor thereby to cheat the other. 1 Fonb. Tr. Equity, 3d ed. 66, note;
6th ed. 122, and notes; Newl. Cont. 352; 1 Bl. R. 465; Dougl. Rep. 450; 3
Burr. Rep. 1909; 3 V. & B. Rep. 42; 3 Chit. Com. Law, 155, 806, 698; 1 Sch.
& Lef. 209; Verpl. Contracts, passim; Domat, Lois Civ. p. 1, 1. 4, t. 6, s.
8, n. 2.
3. The following enumeration of frauds, for which equity will grant
relief, is given by Lord Hardwicke, 2 Ves. 155. 1. Fraud, dolus malus, may
be actual, arising from facts and circumstances of imposition, which is the
plainest case. 2. It may be apparent from the intrinsic nature and subject
of the bargain itself; such as no man in his senses, and not under delusion,
would make on the one hand, and such as no honest and fair man would accept
on the other, which are inequitable and unconscientious bargains. 1 Lev. R.
111. 3. Fraud, which may be presumed from the circumstances and condition of
the parties contracting. 4. Fraud, which may be collected and inferred in
the consideration of a court of equity, from the nature and circumstances of
the transaction, as being an imposition and deceit on other persons, not
parties to the fraudulent agreement. 5. Fraud, in what are called catching
bargains, (q.v.) with heirs, reversioners) or expectants on the life of the
parents. This last seems to fall, naturally, under one or more of the
preceding divisions.
4. Frauds may be also divided into actual or positive and constructive
frauds.
5. An actual or positive fraud is the intentional and successful
employment of any cunning, deception, or artifice, used to circumvent,
cheat, or deceive another. 1 Story, Eq. Jur. Sec. 186; Dig. 4, 3, 1, 2; Id.
2, 14, 7, 9.
6. By constructive fraud is meant such a contract or act, which, though
not originating in any actual evil design or contrivance to perpetrate a
positive fraud or injury upon other persons, yet, by its tendency to deceive
or mislead. them, or to violate private or public confidence, or to impair
or injure the public interests, is deemed equally reprehensible with
positive fraud, and, therefore, is prohibited by law, as within the same
reason and mischief as contracts and acts done malo animo. Constructive
frauds are such as are either against public policy, in violation of some
special confidence or trust, or operate substantially as a fraud upon
private right's, interests, duties, or intentions of third persons; or
unconscientiously compromit, or injuriously affect, the private interests,
rights or duties of the parties themselves. 1 Story, Eq. ch. 7, Sec. 258 to
440.
7. The civilians divide frauds into positive, which consists in doing
one's self, or causing another to do, such things as induce a belief of the
truth of what does not exist or negative, which consists in doing or
dissimulating certain things, in order to induce the opposite party. into
error, or to retain him there. The intention to deceive, which is the
characteristic of fraud, is here present. Fraud is also divided into that
which has induced the contract, dolus dans causum contractui, and incidental
or accidental fraud. The former is that which has been the cause or
determining motive of the contract, that without which the party defrauded
would not have contracted, when the artifices practised by one of the
parties have been such that it is evident, without them, the other would not
have contracted. Incidental or accidental fraud is that by which a person,
otherwise determined to contract, is deceived on some accessories or
incidents of the contract; for example, as to the quality of the object of
the contract, or its price, so that he has made a bad bargain. Accidental
fraud does not, according to the civilians, avoid the contract, but simply
subjects the party to damages. It is otherwise where the fraud has been the
determining cause of the contract, qui causam dedit contractui; in that
case. the contract is void. Toull. Dr. Civ. Fr. Liv. 3, t. 3, c. 2, n. Sec.
5, n. 86, et seq. See also 1 Malleville, Analyse de la, Discussion de Code
Civil, pp. 15, 16; Bouv. Inst. Index, h.t. Vide Catching bargain; Lesion;
Voluntary Conveyance.


FRAUD, TO DEFRAUD, torts. Unlawfully, designedly, and knowingly, to
appropriate the property of another, without a criminal intent.
2. Illustrations. 1. Every appropriation of the right of property of
another is not fraud. It must be unlawful; that is to say, such an
appropriation as is not permitted by law. Property loaned may, during the
time of the loan, be appropriated to the use of the borrower. This is not
fraud, because it is permitted by law. 2. The appropriation must be not only
unlawful, but it must be made with a knowledge that the property belongs to
another, and with a design to deprive him of the same. It is unlawful to
take the property of another; but if it be done with a design of preserving
it for the owners, or if it be taken by mistake, it is not done designedly
or knowingly, and, therefore, does not come within the definition of fraud.
3. Every species of unlawful appropriation, not made with a criminal intent,
enters into this definition, when designedly made, with a knowledge that the
property is another's; therefore, such an appropriation, intended either for
the use of another, or for the benefit of the offender himself, is
comprehended by the term. 4. Fraud, however immoral or illegal, is not in
itself a crime or offence, for want of a criminal intent. It only becomes
such in the cases provided by law. Liv. System of Penal Law, 789.

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