Section 8.7 Representations of Future Performance

• Library: Tort Law 2016

3. (§8.7) Representations of Future Performance

Generally, to give rise to actionable fraud, a representation must relate to an existing (or past) fact. A misrepresentation that relates to something to be done in the future is usually not actionable. See Grand Lodge of United Bros. of Friendship & Sisters of Mysterious Ten v. Mass. Bonding & Ins. Co., 25 S.W.2d 783, 788 (Mo. banc 1930). Thus, a breach of a promise generally does not constitute actionable fraud. See City of Fenton v. Executive Int’l Inn, Inc., 740 S.W.2d 338 (Mo. App. E.D. 1987) (a promise to rebuild a road to the plaintiff’s specifications was held not per se actionable); McAlpine Co. v. Graham, 320 S.W.2d 951, 955 (Mo. App. E.D. 1959) (same holding regarding a contractor’s promise to complete a performance by a certain date); see also Ryann Spencer Grp., Inc. v. Assurance Co. of Am., 275 S.W.3d 284, 291 (Mo. App. E.D. 2008) (representation is not actionable if it regards future actions of an independent third party).

Despite the foregoing general rule, in the majority of jurisdictions, including Missouri, a promise of future performance coupled with a...