I previously blogged on the continuing existence of the independent tort doctrine in Florida.  In lawsuits between parties who bargained for their remedies in a contract, the independent tort doctrine will bar tort actions brought simply as a way around contract remedies.  To state a valid tort claim, the independent tort doctrine requires contracting parties to show a breach of a duty that exists separate and distinct from the contract.

Fraud is a tort action.  To state a claim for fraud, a plaintiff must show that:

1. The defendant made a false representation concerning a material fact;
2. The defendant knew the representation was false at the time it was made;
3. The defendant intended that the representation would induce another to rely and act on it; and
4. The plaintiff suffered injury in justifiable reliance on the representation.

Often, a party attempts to assert a fraud action arising from representations made by another party in the course of contract negotiations.  But, false representations as to future conduct made during negotiations do not constitute actionable fraud.  Such a claim, known as “fraud in the performance,” is said to “merge” with the breach of contract claim.

For example, if the defendant promises to pay the plaintiff in the future in exchange for services performed today, and the defendant later fails to pay the plaintiff, the plaintiff would have a breach of contract action against the defendant.  The defendant’s broken promise, however, would not constitute fraud.

An exception exists where a representation is made as to future conduct without any intention of performing or “with the positive intention not to perform.”  Under these circumstances, a plaintiff would have an independent action for fraud.  In the example above, if the defendant did not have any intention of paying the plaintiff at the time the representation was made, the plaintiff would have a fraud action against the defendant.

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