An opinion may also be fraudulent if the Defendant knows that the statement of opinion is false, or if the opinion stated is based upon or supported with false statements of fact, that is intertwined with misstatements of fact, or if the opinion is based upon the Defendant’s special knowledge and the Defendant should have known that the Plaintiff was justified in relying upon Defendant’s special knowledge.
Especially in factoring litigation in Texas, a fraudulent misrepresentation may consist of a false promise by the Defendant of future performance. To prove a false promise of future performance, the factor must establish and prove that Defendant made a promise with no intention of performing it. This is not to be confused with a mere breach of contract which would be a situation where the Defendant enters into a contact and then later decides not to perform it. This theory is sometimes difficult to prove because the factor, or judgment creditor must show that the representation was sufficiently certain, and of a type that a person could reasonably and justifiably rely upon. Also, it is often difficult to show that the Defendant had no intention of performing the promises, when they made the promise. A mere breach is not sufficient to support this element. Texas courts have held that even slight circumstantial evidence of fraud, when considered with a breach of contract, is enough to find and infer intent not to perform.
Another sort of fraudulent representation is one made by conduct. Deceptive conduct is equivalent to a false statement of fact. In proving your fraud claim, the other element discussed previously, was that the false representation was made knowingly or recklessly. Again, either direct or circumstantial evidence may be alleged and proved to show that Defendant made a statement with or without knowledge of the representations truth. A “knowingly” representation is made by Defendant who is aware of the statement’s falsity or understands that it is false. A “reckless” representation is made if a Defendant makes the representation without any knowledge of its truth, and makes the representation as a positive assertion of fact. It has been stated that a representation is made recklessly when a Defendant knows that the Defendant does not have sufficient information or a basis to support the representation or if a Defendant realizes it does not know whether the representation is true or not.
If you have any questions about business disparagement or need help with business debt collections in Dallas Texas, We Can Help – Give Us a Call: 214-752-8800 or Email Us: email@example.com
*The foregoing is not intended to provide specific legal advice, but instead only as a generalized discussion
Sam Emerick has over 35 years
experience in Commercial Collections Law,
Factoring Litigation and Wills, Trusts & Probate