Written by attorneys · grounded in primary & secondary sources — see below
2 senses
1
in tort law
An assertion of opinion that a recipient may reasonably interpret as carrying an accompanying representation that the facts known to the speaker are not incompatible with the opinion or that the speaker knows facts sufficient to justify forming it. The recipient's belief about whether the speaker holds an adverse interest bears on whether the interpretation is reasonable.
2
Sense 1
1
in tort law
An assertion of opinion that a recipient may reasonably interpret as carrying an accompanying representation that the facts known to the speaker are not incompatible with the opinion or that the speaker knows facts sufficient to justify forming it. The recipient's belief about whether the speaker holds an adverse interest bears on whether the interpretation is reasonable.
Sources & Authorities· 1 source
Select any source to read its text and confirm it supports the definition.
Restatements
Sense 2
2
in evidence law
Conduct or words offered to prove the truth of a matter that the actor or speaker implicitly asserted rather than stated outright. Such evidence is treated as hearsay when the implied assertion would be inadmissible if made directly.
Sources & Authorities· 1 source
Select any source to read its text and confirm it supports the definition.
Conduct or words offered to prove the truth of a matter that the actor or speaker implicitly asserted rather than stated outright. Such evidence is treated as hearsay when the implied assertion would be inadmissible if made directly.
Each sense below has its own examples, sources, and questions.
Examples1
Opinion on Network Reliability
Isaac, Pine Broadband's sales director, told Allied Broadband representatives he was confident they would experience only minimal downtime. Isaac knew internal reports showed chronic outages far above industry averages but said nothing about them. Allied relied on the statement, skipped its own audit, and signed the contract. When frequent interruptions followed, Allied sued for misrepresentation on the ground that Isaac's opinion carried an implied representation that his undisclosed knowledge was compatible with the claimed reliability.
Frequently Asked2
When does an opinion statement become an actionable implied misrepresentation?+
A statement of opinion may be treated as an implied representation that the speaker knows facts compatible with the opinion and sufficient to justify it when the recipient reasonably draws that inference from the circumstances. The recipient's belief that the speaker lacks an adverse interest is a key factor in assessing reasonableness.
Supporting sources
Does the recipient's knowledge of the speaker's adverse interest prevent an opinion from carrying implied facts?+
Yes. When the recipient knows the speaker has a financial or other stake that conflicts with the recipient's interests, it is ordinarily unreasonable to interpret the opinion as implying undisclosed justifying facts. Objective notice of the adverse interest overrides a subjective belief that the speaker will act neutrally.
Supporting sources
1
Incoming Calls as Implied Assertions
Officers answered repeated phone calls at a suspected bookmaking location and heard callers placing bets. The government offered the calls to prove the premises were used for illegal gambling. The defense objected that the calls were hearsay because they implied the callers believed they were reaching a bookmaker. The court treated the calls as implied assertions offered for their truth and analyzed them under the hearsay rule.
United States v. Zenni492 F. Supp. 464, 465 (E.D. Ky. 1980)
Frequently Asked1
Are implied assertions from conduct or calls treated as hearsay?+
Yes. Conduct or statements offered to prove the truth of a matter the actor implicitly asserted are hearsay when the implied assertion would be inadmissible if spoken directly. Courts therefore exclude such evidence unless it falls within a hearsay exception or exclusion.
Supporting sources
492 F. Supp. 464 (E.D. Ky. 1980)Evidence
…therefore, in this case the letters which are offered only to prove the competence of the testator, that is the truth of the implied statements therein contained, were properly rejected, as the mere statement or opinion of the writer would certainly have been inadmissible.” This was the prevailing common law view,[^12] where the…
ContractsDefenses to enforceability · Fraud, misrepresentation, and nondisclosureUBEFoundational