THE OF DECEIT Deceit is simply defined as a false statement or (made either expressly or impliedly) by the Plaintiff willfully, deliberately, knowingly, recklessly or carelessly without even him or her believing in the truth of the representation or statement made, expected the receiver to rely on it, and which he or she actually did to his or her loss or detriment.

Deceit cuts across many areas of such as , , etc.

Thus, false representations or may create concurrent rights of action in these areas; accordingly, a false representation may give rise to the right to rescind a contract as the contract was induced by deceit or fraud. This tort is also known as “Fraudulent Misrepresentation” in the Law of Contract and is some cases, criminal prosecution may be brought against a defendant where the deceit amounts to a criminal offence e.g. Obtaining by False Pretences under S. 419 of the Criminal Code.

The essence of the Defendant’s deceit is to deceive, dupe or defraud the Plaintiff to his or her detriment thereby, occasioning a loss.

Take Notice that it is not necessary that the Defendant benefitted or did not benefit from the deceit or that he did collude or did not collude with the person who benefited from it. See Parsley v. Freeman (1789) 100 ER 450. The tort of Deceit dates back to the decision held in the cases of Parsley v. Freeman

(Supra) and Hedley Byrne v. Heller Partners Ltd. (1984) 3 WLR 350.

Also Take Notice that the Plaintiff must prove damage to succeed in this tort is as it is not actionable per se; see Mullet v. Mason (1866) LR 1 CP 559; Dickes v. Fenne

(1639) 32 ER 411. However, damage need not be proved to obtain an Order for rescission of a contract induced by deceit. See Foucard v. Sinclair (1918) 1 KB 180 at 192; Archer v. Brown (1984) 2 All ER 276.

The Essential Ingredients : These are basically two :

1. Deliberately making a false representation or misrepresentation; 2. The Plaintiff was induced to rely on the statement made to his detriment.

THE ELEMENTS OF DECEIT : The Plaintiff must prove the following in order to succeed in an action for the tort of Deceit;

1. That the Defendant made a false representation;

2. That the Defendant knew that the representation was false;

3. That the Defendant intended the Plaintiff should rely on the information;

4. That the Plaintiff relied on the information; and

5. That the Plaintiff did suffer damage. SILENCE

Generally, mere silence or non-disclosure is not actionable here because silence alone does not amount to fraud except where it has been expressly stated by a or law that certain disclosures are mandatory; however, active concealment is a sufficient ground for a legal action in the tort of Deceit. At , whenever there is silence the applicable rule will be caveat emptor (buyer beware).

This is commonly applied to goods transactions. For consumer goods, the applicable rule is caveat venditor (seller beware). Take Notice that this rule does not apply to leases and that require utmost good faith e.g. insurance. Failure to disclose all or relevant information may render contracts ubberimea fidei

(utmost good faith) voidable, unenforceable, etc.

The instances where silence may amount to deceit include situations where:

1. It distorts a positive representation;

2. There is active concealment of a fact;

3. There is a change of fact, then there is a duty to inform the other party;

4. There is a statutory duty to disclose; and

5. It is a statement of an intention or opinion. AVAILABLE REMEDIES

This include :

1. Award of ;

2. of any property that may have passed between the parties; and

3. Criminal Prosecution, where the deceit also amounts to crime. AVAILABLE DEFENCES

This include :

1. That the Defendant honestly believed the representation was true;

2. That the Plaintiff did not rely on the misrepresentation in taking the action that caused him damage;

3. That the Plaintiff actually knew that the representation was false and could not have been acting on it;

4. That the Plaintiff had constructive notice of the incorrectness of the misrepresentation; 5. That if the independent contractor hired by the Plaintiff to investigate the veracity of the representation had done it properly, the Plaintiff would have known that representation was not correct; and

6. That the Agent of the Defendant who made the representation did not do so in the course of employment and has no actual or ostensible authority to make the representation therefore, the Defendant who is his employer cannot be vicariously liable for the misrepresentation.