Nor is this all.  The law pursuing its course of specification, as explained in the last Lecture, decides what is the tendency of representations in certain cases,—­as, for instance, that a horse is sound at the time of making a [135] sale; or, in general, of any statement of fact which it is known the other party intends to rely on.  Beyond these scientific rules lies the vague realm of the jury.

The other moral element in deceit is knowledge that the statement was false.  With this I am not strictly concerned, because all that is necessary is accomplished when the elements of risk are reduced to action and knowledge.  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.  Now what does “recklessly” mean.  It does not mean actual personal indifference to the truth of the statement.  It means only that the data for the statement were so far insufficient that a prudent man could not have made it without leading to the inference that he was indifferent.  That is to say, repeating an analysis which has been gone through with before, it means that the law, applying a general objective standard, determines that, if a man makes his statement on those data, he is liable, whatever was the state of his mind, and although he individually may have been perfectly free from wickedness in making it.

Hence similar reasoning to that which has been applied already to intent may be applied to knowledge of falsity.  Actual knowledge may often be easier to prove than that the evidence was insufficient to warrant the statement, and when proved it contains the lesser element.  But as soon as the lesser element is shown to be enough, it is shown that the law is ready to apply an external or objective standard here also.