Working Definitions: Slander, Defamation, Fraud

Note: these are not my definitions. They came from a friend of mine who is a lawyer. 

SLANDER, n. 1. A defamatory assertion expressed in a transitory form, esp. speech. • Damages for slander -- unlike those for libel -- are not presumed and thus must be proved by the plaintiff (unless the defamation is slander per se). [Cases: Libel and Slander Key Number graphic1, 24. C.J.S. Libel and Slander; Injurious Falsehood §§ 2, 5-6, 10, 47.] 2. The act of making such a statement. See DEFAMATION. Cf. LIBEL. -- slander, vb. -- slanderous, adj.

• Clarification:
• "Although libel and slander are for the most part governed by the same principles, there are two important differences: (1) Libel is not merely an actionable tort, but also a criminal offence, whereas slander is a civil injury only. (2) Libel is in all cases actionable per se; but slander is, save in special cases, actionable only on proof of actual damage. This distinction has been severely criticised as productive of great injustice." R.F.V. Heuston, Salmond on the Law of Torts 139 (17th ed. 1977).
• X slander per quod. Slander that does not qualify as slander per se, thus forcing the plaintiff to prove special damages. [Cases: Libel and Slander Key Number graphic 11, 33. C.J.S. Libel and Slander; Injurious Falsehood § 198.]
• slander per se. Slander for which special damages need not be proved because it imputes to the plaintiff any one of the following: (1) a crime involving moral turpitude, (2) a loathsome disease (such as a sexually transmitted disease), (3) conduct that would adversely affect one's business or profession, or (4) unchastity (esp. of a woman). [Cases: Libel and Slander Key Number graphic33. C.J.S. Libel and Slander; Injurious Falsehood § 198.]
• trade slander. Trade defamation that is spoken but not recorded. See trade defamation under DEFAMATION. Cf. trade libel under LIBEL.

defamation, n. 1. The act of harming the reputation of another by making a false statement to a third person. • If the alleged defamation involves a matter of public concern, the plaintiff is constitutionally required to prove both the statement's falsity and the defendant's fault. 2. A false written or oral statement that damages another's reputation. See LIBEL; SLANDER. Cf. DISPARAGEMENT. [Cases: Libel and Slander Key Number graphic6-14. C.J.S. Libel and Slander, Injurious Falsehood §§ 2, 5-6, 10-12, 17-42, 47, 104.] -- defame, vb.

• Clarification
• "Defamation is the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person." P.H. Winfield, A Textbook of the Law of Tort § 72, at 242 (5th ed. 1950).
• "The wrong of defamation consists in the publication of a false and defamatory statement concerning another person without lawful justification. That person must be in being. Hence not only does an action of defamation not survive for or against the estate of a deceased person, but a statement about a deceased or unborn person is not actionable at the suit of his relatives, however great their pain and distress, unless the statement is in some way defamatory of them." R.F.V. Heuston, Salmond on the Law of Torts 138 (17th ed. 1977).
• "For entirely too long a period of time, English and American law have recognized two distinct kinds of defamation based solely on the form in which it is published. Oral defamation is slander; written defamation is libel. Libel is a crime and a tort which subjects the defamer to tort liability without proof of special damages. Slander is not a common law crime and, with certain exceptions, does not subject the defamer to liability unless there is proof of special damages. Under this distinction in form alone the defamatory letter read only by its addressee and burned to ashes after being read is a more serious defamation than a defamatory statement spoken to an audience of 3,000 community leaders and molders of public opinion. This is utterly absurd and completely indefensible ...." Laurence H. Eldredge, The Law of Defamation § 12, at 77 (1978).
• "Defamation ... is involved in two related harms, libel and slander. A familiar statement is that libel is written whereas slander is oral. This covers the idea in a general way but tends to mislead because defamation may be published without the use of words and hence be neither written nor oral. Thus libel may be perpetrated by hanging a person in effigy and slander, by sign or gesture." Rollin M. Perkins & Ronald N. Boyce, Criminal Law 489 (3d ed. 1982).
• defamation per quod. Defamation that either (1) is not apparent but is proved by extrinsic evidence showing its injurious meaning or (2) is apparent but is not a statement that is actionable per se. [Cases: Libel and Slander Key Number graphic 33. C.J.S. Libel and Slander, Injurious Falsehood § 198.]
• defamation per se. A statement that is defamatory in and of itself and is not capable of an innocent meaning. [Cases: Libel and Slander Key Number graphic33. C.J.S. Libel and Slander, Injurious Falsehood § 198.]
• trade defamation. The damaging of a business by a false statement that tends to diminish the reputation of that business. • Trade defamation may be trade libel if it is recorded, or trade slander if it is not. -- Also termed commercial defamation. Cf. TRADE DISPARAGEMENT; TRADE LIBEL.

fraud, n. 1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. • Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime. -- Also termed intentional fraud. [Cases: Fraud Key Number graphic1, 3, 16.] 2. A misrepresentation made recklessly without belief in its truth to induce another person to act. [Cases: Fraud Key Number graphic31.] 3. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment. [Cases: Fraud Key Number graphic13(3).] 4. Unconscionable dealing; esp., in contract law, the unfair use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. [Cases: Contracts Key Number graphic 1. C.J.S. Contracts §§ 2-3, 9, 12.] -- fraudulent, adj.

• "[T]he use of the term fraud has been wider and less precise in the chancery than in the common-law courts. This followed necessarily from the remedies which they respectively administered. Common law gave damages for a wrong, and was compelled to define with care the wrong which furnished a cause of action. Equity refused specific performance of a contract, or set aside a transaction, or gave compensation where one party had acted unfairly by the other. Thus 'fraud' at common law is a false statement ... : fraud in equity has often been used as meaning unconscientious dealing -- 'although, I think, unfortunately,' a great equity lawyer has said." William R. Anson, Principles of the Law of Contract 263 (Arthur L. Corbin ed., 3d Am. ed. 1919).
• BANK fraud. The criminal offense of knowingly executing, or attempting to execute, a scheme or artifice to defraud a financial institution, or to obtain property owned by or under the control of a financial institution, by means of false or fraudulent pretenses, representations, or promises. 18 USCA § 1344. [Cases: Banks and Banking Key Number graphic509.10, 509.25. C.J.S. Banks and Banking §§ 687, 746, 749-754, 756-757, 769-783.]
• "In equity law the term fraud has a wider sense, and includes all acts, omissions, or concealments by which one person obtains an advantage against conscience over another, or which equity or public policy forbids as being to another's prejudice; as acts in violation of trust and confidence. This is often called constructive, legal, or equitable fraud, or fraud in equity." Encyclopedia of Criminology 175 (Vernon C. Branham & Samuel B. Kutash eds., 1949), s.v. "Fraud."
• "In equity law the term fraud has a wider sense, and includes all acts, omissions, or concealments by which one person obtains an advantage against conscience over another, or which equity or public policy forbids as being to another's prejudice; as acts in violation of trust and confidence. This is often called constructive, legal, or equitable fraud, or fraud in equity." Encyclopedia of Criminology 175 (Vernon C. Branham & Samuel B. Kutash eds., 1949), s.v. "Fraud."
• civil fraud. 1. FRAUD (3). 2. Tax. An intentional -- but not willful -- evasion of taxes. • The distinction between an intentional (i.e., civil) and willful (i.e., criminal) fraud is not always clear, but civil fraud carries only a monetary, noncriminal penalty. Cf. criminal fraud; TAX EVASION. [Cases: Internal Revenue Key Number graphic5218; Taxation Key Number graphic1103. C.J.S. Internal Revenue § 825; Taxation § 1782.]
• misrepresentation, n. 1. The act of making a false or misleading assertion about something, usu. with the intent to deceive. • The word denotes not just written or spoken words but also any other conduct that amounts to a false assertion. [Cases: Fraud Key Number graphic9.] 2. The assertion so made; an assertion that does not accord with the facts. -- Also termed false representation; (redundantly) false misrepresentation. Cf. REPRESENTATION (1). -- misrepresent, vb.
• "A misrepresentation, being a false assertion of fact, commonly takes the form of spoken or written words. Whether a statement is false depends on the meaning of the words in all the circumstances, including what may fairly be inferred from them. An assertion may also be inferred from conduct other than words. Concealment or even non-disclosure may have the effect of a misrepresentation .... [A]n assertion need not be fraudulent to be a misrepresentation. Thus a statement intended to be truthful may be a misrepresentation because of ignorance or carelessness, as when the word 'not' is inadvertently omitted or when inaccurate language is used. But a misrepresentation that is not fraudulent has no consequences ... unless it is material." Restatement (Second) of Contracts § 159 cmt. a (1979).
• To court (civil)
• fraudulent misrepresentation. A false statement that is known to be false or is made recklessly -- without knowing or caring whether it is true or false -- and that is intended to induce a party to detrimentally rely on it. -- Also termed fraudulent representation; deceit. [Cases: Fraud Key Number graphic8.]
• "A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion." Restatement (Second) of Contracts § 162(1) (1979).
• To Courts (All legal documents she’s ever submitted)
• Other firm, stealing clients (improper means, motives)
• material misrepresentation. 1. Contracts. A false statement that is likely to induce a reasonable person to assent or that the maker knows is likely to induce the recipient to assent. [Cases: Contracts Key Number graphic94. C.J.S. Contracts §§ 136, 139-140, 156, 158-160, 170-171, 173-174.] 2. Torts. A false statement to which a reasonable person would attach importance in deciding how to act in the transaction in question or to which the maker knows or has reason to know that the recipient attaches some importance. See Restatement (Second) of Torts § 538 (1979). [Cases: Fraud Key Number graphic18.]
• "The materiality of a misrepresentation is determined from the viewpoint of the maker, while the justification of reliance is determined from the viewpoint of the recipient.... The requirement of materiality may be met in either of two ways. First, a misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent. Second, it is material if the maker knows that for some special reason it is likely to induce the particular recipient to manifest his assent. There may be personal considerations that the recipient regards as important even though they would not be expected to affect others in his situation, and if the maker is aware of this the misrepresentation may be material even though it would not be expected to induce a reasonable person to make the proposed contract. One who preys upon another's known idiosyncrasies cannot complain if the contract is held voidable when he succeeds in what he is endeavoring to accomplish.... Although a nonfraudulent misrepresentation that is not material does not make the contract voidable under the rules stated in this Chapter, the recipient may have a claim to relief under other rules, such as those relating to breach of warranty." Restatement (Second) of Contracts § 162 cmt. c (1979).
• Also Bank fraud?
• X negligent misrepresentation. A careless or inadvertent false statement in circumstances where care should have been taken. [Cases: Fraud Key Number graphic13(3).]