Actual fraud is defined in Virginia as a misrepresentation of a material fact, made knowingly and intentionally, with the intent to mislead another person, when the person to whom the misrepresentation was made reasonably relies on that misrepresentation and suffers damages as a result. In other words, you commit fraud when you lie to someone for the purpose of tricking that person into doing something (or refraining from doing something), and the person believes you and falls for it. The misrepresentation does not need to be expressed in words; it can be communicated through nonverbal conduct. Sometimes even silent non-communication can amount to “fraud by omission.” If you know that remaining silent would cause someone to reasonably (but erroneously) infer certain facts and you intentionally fail to speak up, that could be actionable as fraud. If the misrepresentation causes the recipient to do something he would not have done had he not heard the lie, he is said to have relied on the misrepresentation.
If you don’t want your fraud lawsuit to get dismissed at the outset, be sure to allege in the complaint that the misrepresentation was made concerning a present or past fact. A common mistake is to confuse fraudulent misrepresentations with broken promises. You can sometimes sue for a broken promise, but a broken promise is not fraud because a promise is an undertaking to take some action in the future. Assuming you’re not psychic or clairvoyant (which is an assumption the judge is going to make, I assure you), you don’t know what the future holds, so you can’t “misrepresent” the future. If you say you will do something in the future but then you don’t actually do it, you have broken a promise and perhaps breached a contract; you haven’t committed fraud.
As with the law of defamation, fraud claims are based on statements of fact, not expressions of opinion. Moreover, the misrepresentation must pertain to a “material” fact. If a person misrepresents a tangential or irrelevant fact, it will not likely lead to a fraud claim. For there to be actionable fraud, the misrepresented fact must be of the sort that would tend to cause a reasonable person to act in some way.
The requirement that reliance be reasonable protects against frivolous claims based on unpredictable losses not proximately caused by the fraud. A person to whom a misrepresentation is made may be expected to investigate the veracity of the statement if that’s what a reasonably prudent person would do under the circumstances. And if circumstances do call for an investigation, the plaintiff must investigate to the extent that a reasonably prudent person would, and will be presumed to know whatever such an investigation would have revealed. So, for example, if you try to sell me a painting of a black square for $100 million by telling me your name is Kazimir Malevich and your painting is a recognized masterpiece, I probably won’t be successful in a fraud action if I simply took your word for it and paid you the $100 million without doing a little research into your assertions. If a quick Internet search would have revealed that Kazimir Malevich died in 1935 and that his painting in hanging in a museum in Russia, the law will assume I knew those things when I forked over the $100 million and that I was not defrauded in any actionable sense.
Sometimes you can bring a fraud case even if the defendant did not intend to mislead you. Virginia recognizes a claim of “constructive fraud” where all the elements of a fraud claim are there except for “intent to mislead”; thus, constructive fraud is a misrepresentation of a material fact, innocently or negligently made, with the intent that a person will rely on it and which that person relied upon with the result that he was damaged by it.
So remember: just because someone lied to you doesn’t mean you can sue them for fraud. But if they lied to you about something important, knowing that you would act on the information, and you suffered financial harm when you acted exactly as the fraudster anticipated you would act, and your actions were reasonable, then you may very well be entitled to recover damages.