The question is, what known circumstances are enough throw the
risk of a statement upon him who makes it, if it induces another
man to act, and it turns out untrue. Now, it is evident that a
man may take the risk of his statement by express agreement, or
by an implied one which the law reads into his bargain. He may in
legal language warrant the truth of it, and if it is not true,
the law treats it as a fraud, just as much when he makes it fully
believing it, as when he knows that it is untrue, and means to
deceive. If, in selling a horse, the seller warranted him to be
only five years old, and in fact he was thirteen, the seller
could be sued for a deceit at common law, although he thought the
horse was only five. /1/ The common-law liability for the truth
of statements is, therefore, more extensive than the sphere of
actual moral fraud. But, again, it is enough in general if a
representation [136] is made recklessly, without knowing whether
it is true or false. Now what does "recklessly" mean. It does not
mean actual personal indifference to the truth of the statement.
It means only that the data for the statement were so far
insufficient that a prudent man could not have made it without
leading to the inference that he was indifferent. That is to say,
repeating an analysis which has been gone through with before, it
means that the law, applying a general objective standard,
determines that, if a man makes his statement on those data, he
is liable, whatever was the state of his mind, and although he
individually may have been perfectly free from wickedness in
making it.
Hence similar reasoning to that which has been applied already to
intent may be applied to knowledge of falsity. Actual knowledge
may often be easier to prove than that the evidence was
insufficient to warrant the statement, and when proved it
contains the lesser element. But as soon as the lesser element is
shown to be enough, it is shown that the law is ready to apply an
external or objective standard here also.
Courts of equity have laid down the doctrine in terms which are
so wholly irrespective of the actual moral condition of the
defendant as to go to an opposite extreme. It is said that "when
a representation in a matter of business is made by one man to
another calculated to induce him to adapt his conduct to it, it
is perfectly immaterial whether the representation is made
knowing it to be untrue, or whether it is made believing it to be
true, if, in fact, it was untrue." /1/
Public-domain text, read in full here on John Shaqi.
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