Silent Fraud And Pre-Contractual Duties To Inform

"Fraud destroy everything"(fraus omnia corrumpit), deceptive practices are regulated by law because they are contrary to good faith. If one party improperly intervenes the decision-making process of the other party, the court will give remedy to the victim for the sake of protecting the freedom of will. The victim can cancel the contract and claim for damages caused by the fraudulent behavior. Under circumstance of silent fraud, the destructive interference of the silent party is not obvious. It is extremely difficult to prove the fraudulent intention according to the traditional theory of fraud. Silent fraud is not admitted by legislations and judicial practices of many countries for a long time, however, with the deepening of social division of labor and the arrival of information society, silence of one party alone is enough to mislead the other party in some cases, silent fraud is becoming increasingly common. In order to rectify the unreasonable situation, many countries generally recognize that silence can also constitute fraud under certain conditions.Due to the difficulties of proving fraudulent intention in the situation of silence, the judicial practices of many countries have introduced the concept of ’duties to inform’as a stepping stone to prove the intention of fraud. Therefore, this thesis will unfold the discussion of silent fraud in the perspective of pre-contractual duties to inform. This thesis is divided into three chapters except the introduction and epilogue.The first chapter consists of three sections. Firstly, it discusses the necessity of regulating silent fraud. Secondly, it gives a comparative analysis of the legislations and theories of both common law and civil law. Finally, it comes to the conclusion that silence can constitute fraud only on the premise of pre-contractual duties to inform.The second chapter explains the moral legitimacy and economic rationality of silent fraud. Firstly, it discusses the connection of the principle of good faith and silent fraud. Secondly, it analyses the forms of information that should be disclosed according to economic efficiency. Finally, it discusses the conflict of moral value and economic efficiency and then makes a point that moral value reflected by good faith should come first when establishing pre-contractual duties to inform.The third chapter identifies the concrete sources of pre-contractual duties to inform, and then analyses the relevant factors that should be taken into account when defining pre-contractual duties to inform.