Does the out-of-pocket rule apply in the context of fraudulent misrepresentation or concealment?

California, United States of America


The following excerpt is from Pricaspian Dev. Corp. v. Ficeto, B239435 (Cal. App. 2014):

(Gutterman v. Gally (1933) 131 Cal.App. 647, 652.) This is a straightforward application of the out-of-pocket rule discussed above; it is the difference in actual value at the time of the transaction that determines damages. If the stock purchased by the plaintiff in reliance on the fraudulent misrepresentation (or concealment) was, at the time of the purchase, actually worth what the plaintiff paid for it, the plaintiff was not damaged by the purchase "for even though [it] would not have bought [the shares] had [it] known the truth, [it] nevertheless received property as valuable as that with which [it] parted." (Gagne v. Bertran (1954) 43 Cal.2d 481, 491 [discussing the rule in the context of a purchase of land].)

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