§ 18-4 Fraud - Nondisclosure as Representation

• Library: South Carolina Requests to Charge - Civil (SCBar) (2016 Ed.)

§ 18-4 Fraud - Nondisclosure as Representation

A fraudulent or intentional misrepresentation may be made either by an affirmative statement that is itself false, or by concealing or not disclosing certain facts that render the facts that are disclosed misleading. Generally, the failure to disclose is not necessarily a misrepresentation. Yet, at times, nondisclosure may serve as the "representation" underlying fraud. This can occur in four ways:

(1) If the defendant chooses to speak, he must disclose enough of what he knows to prevent his words from being misleading. In situations where the defendant has made an incomplete or ambiguous statement or half truth that he knew was misleading, he is then under a duty to clarify and to disclose the whole truth.
(2) If the defendant subsequently acquires new information that makes his original statement misleading, he is under a duty to disclose the after-acquired facts.
(3) If there is a confidential or fiduciary relationship, the disclosure requirements may be greater. A duty to disclose may arise when one party has information the other party has a right to know because of a fiduciary or other relation of trust or confidence between them. If the plaintiff and the defendant are in some special fiduciary relationship to each other, there is a duty of full disclosure.
(4) The defendant may be held to a higher standard if he has a special knowledge not available to the plaintiff and such knowledge would probably affect the plaintiff's decision. A duty to disclose can arise when one party to a transaction has superior knowledge of certain information and that information is not readily available to the other party and the first party knows the second

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