But it will aid in the general
object of showing that the tendency of the law everywhere is to
transcend moral and reach external standards, if this knowledge
of falsehood can be transmuted into a formula not necessarily
importing guilt, although, of course, generally accompanied by it
in fact. The moment we look critically at it, we find the moral
side shade away.
The question is, what known circumstances are enough throw the
risk of a statement upon him who makes it, if it induces another
man to act, and it turns out untrue. Now, it is evident that a
man may take the risk of his statement by express agreement, or
by an implied one which the law reads into his bargain. He may in
legal language warrant the truth of it, and if it is not true,
the law treats it as a fraud, just as much when he makes it fully
believing it, as when he knows that it is untrue, and means to
deceive. If, in selling a horse, the seller warranted him to be
only five years old, and in fact he was thirteen, the seller
could be sued for a deceit at common law, although he thought the
horse was only five. /1/ The common-law liability for the truth
of statements is, therefore, more extensive than the sphere of
actual moral fraud. But, again, it is enough in general if a
representation [136] is made recklessly, without knowing whether
it is true or false.
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