Fraudulent misrepresentation - Next Generation Bar Exam

  1. A seller tells a buyer the roof is new, honestly but carelessly, without checking records showing it is 20 years old. What claim fits these facts?
    Negligent misrepresentation, not fraud. The seller lacked knowledge of falsity or reckless disregard.
  2. A seller, asked whether a basement floods, says 'never,' knowing it floods every spring. The buyer relies and buys. What tort did the seller commit?
    Fraudulent misrepresentation. The seller knowingly misrepresented a material fact to induce reliance.
  3. What does scienter require in a fraudulent misrepresentation claim?
    Knowledge that the statement was false or reckless disregard of its truth. An honest but careless belief supports at most negligent misrepresentation.
  4. What is the status of a statement of opinion in a fraud claim?
    It is generally not actionable, unless it implies facts or comes from a person with superior knowledge. Puffery, such as 'the best car in town,' is not actionable.
  5. What damages are typically recoverable for fraudulent misrepresentation?
    Out-of-pocket loss or benefit-of-the-bargain damages, as the jurisdiction permits. Punitive damages may be available for intentional fraud.
  6. What is the general rule on liability for nondisclosure in fraudulent misrepresentation?
    There is generally no liability for silence absent a duty to disclose. A duty may arise from a fiduciary relationship, half-truths, or active concealment.
  7. A seller tells a buyer that a house is 'a great value.' The buyer later concludes it was overpriced. What is the status of the statement?
    It is nonactionable puffery. General statements of value are opinion.
  8. What reliance must a fraud plaintiff show?
    Justifiable reliance. A plaintiff need not investigate unless the falsity is obvious.
  9. What is the status of active concealment of a material fact?
    It is treated as a misrepresentation. Painting over water damage to hide it is a classic example.
  10. What are the elements of fraudulent misrepresentation?
    A misrepresentation of material fact, scienter, intent to induce reliance, justifiable reliance, and damages. Scienter means knowledge of falsity or reckless disregard of truth.
  11. What is the status of a promise made with no intention of performing it?
    It is an actionable misrepresentation of the promisor's present intent. A broken promise alone is a contract matter, not fraud.
  12. What standard of proof applies to fraud in many jurisdictions?
    Clear and convincing evidence. The heightened standard reflects the seriousness of the charge.

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