The tort of deceit would have been established only if the misstatements had been fraudulently made.

The tort of deceit, also known as "fraud", dates in its modern development from Pasley v. Freeman.

In cases of fraudulent misrepresentation, a claim for damages is under the tort of deceit, making the damages tortious.

Representations, which are often precontractual, are typically less strictly enforced than terms, and material misrepresentations historically was a cause of action for the tort of deceit.

The tort of deceit for inducement into a contract is a tort in English law, but in practice has been replaced by actions under Misrepresentation Act 1967.

The courts have however been more willing to adopt the law in UK in areas such as the tort of deceit, unlawful interference with trade, intimidation, and malicious falsehood.

But the Court of Appeal held that in any event the test under s 2(1) was the same as in the tort of deceit, that one should be liable for all consequences.

To hold that "reckless" bears a subjective meaning would be consistent with the definition in the tort of deceit: one would not wish a person to be convicted of a crime when he would not be tortiously liable.

The common law refused to grant damages for innocent misrepresentation but would do so in the tort of deceit if the representation was fraudulent, although this is notoriously difficult to prove (Derry v Peek (1889) 14 App Cas 337).

Balcombe LJ and Ralph Gibson LJ held that for innocent misrepresentation under s.2(1), the correct measure of damages was tortious measure, and the same as that for the tort of deceit.

Representations are traditionally precontractual statements which allow for a tort-based action (such as the tort of deceit) if the misrepresentation is negligent or fraudulent; historically a tort was the only action available, but by 1778, breach of warranty became a separate legal contractual action.

This section was enacted to prevent section 4 of the Statute of Frauds being circumvented bringing an action for the tort of deceit (the tort in Freeman v Palsey), by requiring the representation of credit be in writing signed by the party charged.

Derry v Peek (1889) LR 14 App Cas 337 is a case in English law in the tort of deceit, the tort of negligent misstatement in pure economic loss, misrepresentation in contract law, fraud in contract law, and fiduciary duty in equity.

Viscount Haldane LC for the House of Lords held that despite Derry v Peek (which had disallowed any claim for misstatements apart from in the tort of deceit) Mr Nocton was liable for his bad advice given the fiduciary relationship between the solicitor and client.