The Illinois First District Appellate Court has defined “constructive fraud” as any act, statement or omission which amounts to positive fraud or which is construed as fraud by the courts because of its detrimental effect upon public interests and public or private confidence. Small v. Sussman, 306 Ill.App.3d 639, 646 (1st Dist. 1999). Essentially, constructive fraud is a breach of a legal or an equitable duty which, irrespective of the moral guilt of the wrongdoer, Illinois courts declare as fraudulent because of its tendency to deceive others. Prodromos v. Everen Securities, Inc., 341 Ill.App.3d 718, 726 (1st Dist. 2003). A cause of action for constructive fraud requires neither actual dishonesty, nor intent to deceive. Cessna v. City of Danville, 296 Ill.App.3d 156, 168 (4th Dist. 1998). On the other hand, a cause of action for constructive fraud can be inferred from the circumstances regardless of any actual dishonesty of purpose. Id.
Constructive fraud can arise only if there is a confidential or fiduciary relationship between the parties. Prodromos, 341 Ill.App.3d at 726. In Illinois, a fiduciary relationship arises when one has influence over a person through the trust and confidence of that person, such as where a person solicits trust by holding himself or herself out as an expert. Illinois Jurisprudence, Personal Injury and Torts § 13:02. In a fiduciary relationship, where there is a breach of a legal or equitable duty, a presumption of fraud arises. Id. Where there has been a breach of a fiduciary duty, a cause of action can lie in constructive fraud. Id.
Once the party claiming constructive fraud has established the existence and breach of a confidential or fiduciary relationship between the parties, the burden of proof shifts to the opposing party to produce evidence to negate the existence and breach of a confidential or fiduciary relationship. Illinois Jurisprudence, Personal Injury and Torts § 13:36. If the opposing party is successful in negating the existence and breach of a confidential or fiduciary relationship, the cause of action for constructive fraud ceases to exist and the party claiming constructive fraud has the burden of proving fraud. Id.
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