Page:United States Statutes at Large Volume 76A.djvu/212

–116– -116§ 1047. Kinds of fraud Fraud is either actual or constructive. § 1048. Actual fraud Actual fraud, within the meaning of this subchapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: (1) the suggestion, as a fact, of that which is not true, by one who does not oelieve it to be true; (2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true; (3) the suppression of that which is true, by one having knowledge or belief of the fact; (4) a promise made without any intention of performing it; or (5) any other act fitted to deceive. § 1049. Constructive fraud Constructive fraud consists in: (1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or (2) any act or omission which the law specially declares to be fraudulent, without respect to actual fraud. § 1050. Actual fraud as question of fact Actual fraud is always a question of fact. § 1051. Undue influence Undue influence consists in: (1) the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of the confidence or authority for the purpose of obtaining an unfair advantage over him; (2) taking an unfair advantage of another's weakness of mind; or (3) taking a grossly oppressive and unfair advantage of another's necessities or distress. § 1052. Kinds of mistake Mistake may be either of fact or law. § 1053. Mistake of fact Mistake of fact is a mistake, not caused by the neglect of a legal duty on the part of the person making the mistake, and consisting in: (1) an unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or (2) belief in the present existence of a thing material to the contract which does not exist, or in the past existence of such a thing, which has not existed. § 1054. Mistake of law Mistake of law is a mistake, within the meaning of this subchapter, only when it arises from a misapprehension of the law: (1) by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law; or (2) by one party, of which the others are aware at the time of contracting, but which they do not rectify.

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