PJC Business

F RAUD AND N EGLIGENT M ISREPRESENTATION

PJC 105.2

PJC 105.2

Instruction on Common-Law Fraud—Intentional Misrepresentation

Fraud occurs when— 1. a party makes a material misrepresentation, and

2. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, and 3. the misrepresentation is made with the intention that it should be acted on by the other party, and 4. the other party [ justifiably ] relies on the misrepresentation and thereby suffers injury. “Misrepresentation” means— [Insert appropriate definitions from PJC 105.3A–105.3E.] COMMENT When to use. PJC 105.2 should be used in a common-law fraud case if there is a claim of intentional misrepresentation. Accompanying question, definitions. PJC 105.2 is designed to follow PJC 105.1 and to be accompanied by one or more of the definitions of misrepresentation at PJC 105.3A–105.3E. Use of “or.” If more than one definition of misrepresentation is used, each must be separated by the word or , because a finding of any one type of misrepresentation would support recovery. See Lundy v. Masson , 260 S.W.3d 482, 494 (Tex. App.— Houston [14th Dist.] 2008, pet. denied) (approving the use of “or”). Source of instruction. The supreme court has repeatedly identified these ele ments of common-law fraud. See, e.g., Anderson v. Durant , 550 S.W.3d 605, 614 (Tex. 2018); Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 211 n.45 (Tex. 2002) (identifying the recognized elements of common-law fraud); Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc. , 960 S.W.2d 41, 47 (Tex. 1998) (dis cussing recoverable damages sounding in tort); Oilwell Division, United States Steel Corp. v. Fryer , 493 S.W.2d 487, 491 (Tex. 1973) (first announcing the recognized ele ments of common-law fraud and discussing fraudulent inducement as an affirmative defense).

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