Page:Harvard Law Review Volume 10.djvu/535

Rh relation to an action to recover money paid upon deceit that an action for a conversion of property by a wrongful detention bears to a similar action upon an originally wrongful taking. Mistake is thus relegated, if the analysis is correct, to the same category as deceit, and the father question is as to the nature of deceit.

Deceit is always, so far as I am aware, classed as a tort; but it will be observed that the duty is positive, not negative. It is to tell the truth. This quality at once differentiates it from all torts. It also differs from torts proper, in that it is not an interference with any person's free activity. By hypothesis, the false statement is addressed to the individual's free volition, influencing it rather than compelling it. If there were compulsion, deceit would reduce itself to duress. Moreover, there is in all cases of deceit a meeting of minds on the point that the defendant is telling the truth. That is the understanding of the plaintiff, and that is the understanding which the defendant wishes the plaintiff to have. Then, too, the plaintiff has either of two remedies: he may rescind the transaction, restoring to the defendant what he has received and taking back what the defendant has received, which is restitution, or he may have damages, which is reparation in value. That is, the plaintiff has a right of precisely the same elements and with precisely the same remedies as those inherent in a formal consensual obligation to tell the truth.

Nor is it difficult to work out such an obligation in fact. Communication is impossible except upon a basis of truth. It is impossible to conceive a being with an intelligence sufficient to make a statement who cannot also understand whether the statement conforms to his own beliefs and realize that the one with whom he is communicating relies upon its truth. In the very nature of communication a mutual understanding between the parties is involved. It is quite as easy, therefore, to find such a mutual understanding in fact, even though it be not expressed in words, as to find a real contract when a householder orders supplies from his grocer and yet does not in words promise to pay for them. In both cases there is a common ground of negotiation, and this common ground, by the consent of the parties, defines their relations with each other.

In every communication, therefore, there is a real understanding that he who makes the representation is telling the truth, and the act of entering upon such a representation, which is a purely