Is the amount of claimable damages greater during a breach of contract or is it greater during a fraudulent misrepresentation?

If company A wants to sue company B due to them being guilty of a fraudulent misrepresentation, would it be better for company A to sue company B for a breach of contract instead, if the particular fraudulent misrepresentation also created a breach of contract?

2 Answers 2


99% of the time, you don't sue for thing A instead of thing B; you sue for thing A AND thing B. That way if the court or jury decides you didn't win on one, you can still win on the other.

The measure of damages for contract violations is expectation damages (to put you in the position you would have been in if the contract had been performed). The measure of damage for fraudulent misrepresentation is generally "benefit of the bargain" (the benefit you would have gotten had the fraudulent misrepresentation been true), but you can also get consequential (i.e. foreseeable) damages in both cases (depending on how the contract is drafted) so it often works out about the same way.

There may also be tactical reasons to add the fraud charge. For example, there is generally a fraud exception to the parol evidence rule.


Fraud, misrepresentation, and breach of contract are different causes of action.

Fraud is an intentional tort so it is subject to punitive damages.

One generally sues for all things one can.

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