Freedom to Mislead: The Fictitious Freedom to Contract Around Fraud Under Delaware Law

Abstract

In the past 15 years, Delaware courts seem to have created a rule that allowed sophisticated parties to contract around fraud by using an unambiguous disclaimer and integration clause. Supposedly, an extra-contractual fraud claim would be dismissed had there been an unambiguous disclaimer. However, a survey of Delaware cases tells a different story. They have not held that even sophisticated parties who have relied on fraudulent misrepresentations are bound by contract with a clear disclaimer and integration clause. In the cases in which the courts have supposedly done so, either the party seeking to uphold the contract did not make any fraudulent misrepresentations or the other party did not rely on them or the case could as easily have been decided on other grounds.