The elements of actionable fraud are: 1) a false material misrepresentation, 2) made as a positive assertion which is either known to be false or is made recklessly without knowledge of the truth, 3) with the intention that it be acted upon, and 4) which is relied on by the other party to his (or her) own detriment. Fraud is never presumed and each of its elements must be proved by clear and convincing evidence. Silver v. Slusher, 1988 OK 53, 770 P.2d 878; Bras v. First Bank & Trust Co., 1985 OK 60, 735 P.2d 329; Dawson v. Tindell, 1987 OK 10, 733 P.2d 407; Bowman v. Presley, 212 P.3d 1210, 1218 (Okla. 2009). All the essential elements requisite to constitute actionable fraud need be present, and the absence of any
one is fatal to recovery. Steiger v. Commerce Acceptance of Oklahoma City, Inc., Okla., 455 P.2d 81 (1969).
Actual fraud is defined by statute in 15 O.S. § 58:
Actual fraud, within the meaning of this chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:
1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true.
2. The positive assertion in a manner not warranted by the information of the person making it, of that which is not true, though he believe it to be true.
3. The suppression of that which is true, by one having knowledge or belief of the fact.
4. A promise made without any intention of performing it; or,
5. Any other act fitted to deceive.
Constructive fraud is defined in the statutes by 15 O.S. § 59:
Constructive fraud consists:
1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or,
2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.
Where a party with intent to induce another to enter into contract makes positive assertion, which is material, in a manner not warranted by his information, or where he is not shown to have reasonable
grounds for believing it true where the assertion so made is not true, even though believed by the party making it, he is guilty of actual fraud. Farrar v. Chitwood, 282 P.2d 729 (Okla. 1955).
There is wide distinction between the nonperformance of a promise and a promise made mala fide,
only the latter being actionable fraud. Citation Co. Realtors, Inc. v. Lyon, 610 P.2d 788 (1980). The mere fact that a contract was not performed does not establish actual fraud, since this does not establish an intent not to perform at the time the promise was made. Smith v. Roederer, 516 P.2d 257 (Okla. 1973).