Mont. Code Ann. » TITLE 28. CONTRACTS AND OTHER OBLIGATIONS · CHAPTER 2. CONTRACTS · Part 4. Circumstances Which Affect Validity of Apparent Consent
Montana Code Annotated

Mont. Code Ann. § 28-2-406 (2026)

What Constitutes Constructive Fraud

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 28
  3. CHAPTER 2
  4. Part 4
  5. 28-2-406 What constitutes constructive fraud

TITLE 28. CONTRACTS AND OTHER OBLIGATIONS

CHAPTER 2. CONTRACTS

Part 4. Circumstances Which Affect Validity of Apparent Consent

What Constitutes Constructive Fraud

28-2-406. What constitutes constructive fraud. Constructive fraud consists of:

(1) any breach of duty that, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under the person in fault by misleading another person to that person's prejudice or to the prejudice of anyone claiming under that person; or

(2) any act or omission that the law especially declares to be fraudulent, without respect to actual fraud.

History: En. Sec. 2118, Civ. C. 1895; re-en. Sec. 4979, Rev. C. 1907; re-en. Sec. 7481, R.C.M. 1921; Cal. Civ. C. Sec. 1573; Field Civ. C. Sec. 758; re-en. Sec. 7481, R.C.M. 1935; R.C.M. 1947, 13-309; amd. Sec. 775, Ch. 56, L. 2009.

Notes of Decisions
Cited in 69 cases (9 in the last 5 years), 1980–2025 · leading case: Morrow v. Bank of Am., N.A., 2014 MT 117 (Mont. 2014).
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Morrow v. Bank of Am., N.A., 2014 MT 117 (Mont. 2014). · cites it 41× “¶61 Issue Six: Whether the District Court erred in granting summary judgment to Bank of America on the Morrows’ claim of constructive fraud.”
Daniels v. Thomas, Dean & Hoskins, Inc., 804 P.2d 359 (Mont. 1990). · cites it 16× “Constructive Fraud The District Court concluded Thomas' attempts to gain an unfair advantage over Daniels constituted constructive fraud under § 28-2-406, MCA. Section 28-2-406, MCA, provides that: Constructive fraud consists in: (1) any breach of duty which, without an actually…”
Mattingly v. First Bank of Lincoln, 947 P.2d 66 (Mont. 1997). · cites it 18× “Section 28-2-406, MCA, defines constructive fraud as: (1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under…”
Town of Geraldine v. Montana Mun. Ins. Auth., 2008 MT 411 (Mont. 2008). · cites it 8× “¶ 28 In Montana, constructive fraud is defined in § 28-2-406, MCA, as: (1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone…”
Drilcon, Inc. v. Roil Energy Corp., Inc., 749 P.2d 1058 (Mont. 1988). · cites it 11× “Where a party, by his words or conduct creates a false impression concerning serious impairments or other important matters and subsequently fails to disclose relevant factors, constructive fraud may be found.”
Dewey v. Stringer, 2014 MT 136 (Mont. 2014). · cites it 8× “Section 28-2-406, MCA. In order to make out a prima facie case of constructive fraud, a plaintiff must establish the following elements: a representation; the falsity of that representation; the materiality of that representation; the speaker’s knowledge of that representation’s…”
Deist v. Wachholz, 678 P.2d 188 (Mont. 1984). · cites it 10× “PROOF OF CONSTRUCTIVE FRAUD AND UNDUE INFLUENCE According to Section 28-2-406, MCA, constructive fraud consists of: "(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another…”
Bottrell v. Am. Bank, 773 P.2d 694 (Mont. 1989). · cites it 8× “Section 28-2-406, MCA. Thus, a negligent misrepresentation may constitute a breach of duty, without an actual fraudulent intent, if it gains an advantage to the person at fault by misleading another to his prejudice.”
Harris v. St Vincent & Billings C, 2013 MT 207 (Mont. 2013). · cites it 10× “Vincent Healthcare and Billings 14 Clinic acted in a misleading and deceptive way that sufficiently supports a constructive fraud claim.”
Simmons v. Jenkins, 750 P.2d 1067 (Mont. 1988). · cites it 6× “The statute reads as follows: Constructive fraud consists in: “(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone…”
Tynes v. Bankers Life Co., 730 P.2d 1115 (Mont. 1986). · cites it 6× “" (§ 28-2-406(1), M.C.A.) In order to find liability for constructive fraud, you must find that Bankers Life made false statements of fact or withheld or concealed facts and that such falsely stated or withheld facts misled the plaintiffs or one of them to their prejudice…”
McGregor v. Mommer, 714 P.2d 536 (Mont. 1986). · cites it 6× “Section 28-2-406(1), MCA, defines constructive fraud as "any breach of duty which, without fraudulent intent, gains an advantage to the person in fault .”
Show all 69 citing cases →
— Mont. Code Ann. § 28-2-406(1) — 13 cases
Tynes v. Bankers Life Co., 730 P.2d 1115 (Mont. 1986). “" (§ 28-2-406(1), M.C.A.) In order to find liability for constructive fraud, you must find that Bankers Life made false statements of fact or withheld or concealed facts and that such falsely stated or withheld facts misled the plaintiffs or one of them to their prejudice…”
McGregor v. Mommer, 714 P.2d 536 (Mont. 1986). “Section 28-2-406(1), MCA, defines constructive fraud as "any breach of duty which, without fraudulent intent, gains an advantage to the person in fault .”
Daniels v. Thomas, Dean & Hoskins, Inc., 804 P.2d 359 (Mont. 1990). “Constructive Fraud The District Court concluded Thomas' attempts to gain an unfair advantage over Daniels constituted constructive fraud under § 28-2-406, MCA. Section 28-2-406, MCA, provides that: Constructive fraud consists in: (1) any breach of duty which, without an actually…”
Mattingly v. First Bank of Lincoln, 947 P.2d 66 (Mont. 1997). “Section 28-2-406, MCA, defines constructive fraud as: (1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under…”
Batten v. Watts Cycle & Marine, Inc., 783 P.2d 378 (Mont. 1989).
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