Definition
Latin: "by fraud." A term of pleading that describes a replication — a plaintiff's reply to a defendant's plea — in which the plaintiff challenges a defense based on discharge or release by asserting that the discharge was fraudulently obtained and therefore void or invalid. The replication per fraudem does not deny that the discharge occurred; it attacks the legal effect of that discharge on the ground that fraud in its procurement strips it of validity.
The phrase appears in pleading records principally as a descriptive label for this type of reply rather than as a standalone substantive doctrine. Its companion phrase, per fraudem et covinam, extends the allegation to include covin — that is, collusive or conspiratorial fraud — and appears in earlier common law pleading.
Common Confusion
Per fraudem should not be confused with a general allegation of fraud in the formation of a contract or obligation. The replication per fraudem operates at a specific procedural moment: it answers a plea that affirmatively raises a discharge (such as release, accord and satisfaction, or a similar bar) and contests not whether the discharge happened, but whether it can stand given the fraud involved in obtaining it. A general fraud defense attacks the original transaction; per fraudem attacks the validity of the defensive exit from liability.
Why It Matters in Research
Researchers will encounter per fraudem almost exclusively in older English and early American common law pleading materials, where the formal structure of declaration, plea, replication, and rejoinder governed civil litigation. The term belongs to the technical vocabulary of special pleading, a system largely abolished in American courts by the Field Code reforms of the mid-nineteenth century and in English practice by the Judicature Acts of 1873–1875.
Two navigational points matter for corpus research:
First, when searching historical case law or pleading manuals, per fraudem will appear as a descriptor applied retrospectively to a type of replication rather than as a phrase the pleader necessarily used in the document itself. You may find the concept described in English and without the Latin tag, particularly in post-Code American sources.
Second, the substantive principle survives the abolition of formal pleading. Modern pleadings routinely challenge releases, settlements, or discharges by alleging they were procured by fraud — this is per fraudem logic operating under modern procedural rules. The label disappears; the concept does not. Researchers tracing fraud-in-procurement arguments in contemporary contract or settlement disputes should be aware they are working with the functional heir of this pleading tradition.
The companion phrase per fraudem et covinam signals the presence of covin — a concept with its own distinct history in fraudulent conveyance and collusion doctrine. When you encounter that fuller phrase, the research trail branches into covin and fraudulent conveyance territory as well as pure pleading history.
Historical Dictionary Support
Black's first and second editions are in complete agreement, offering an identical definition focused on the pleading context: a replication averring fraudulent procurement of a discharge. Neither edition elaborates on the substantive fraud doctrine underlying the plea or on the companion phrase per fraudem et covinam.
Burrill's entry is more useful for historical depth. It confirms the Latin origin and English law application, cites Lord Ellenborough in 12 East 409 as authority, and supplies the extended phrase per fraudem et covinam with a citation to 2 Mod. 36, connecting the term to the older covin doctrine. Burrill's inclusion of these citations positions per fraudem within a traceable line of English case law rather than treating it as a dictionary abstraction. Researchers working with pre-1800 English materials should follow Burrill's citations as entry points into primary sources.
None of the three dictionaries address the term's disappearance from practice after pleading reform, or its functional continuation under modern procedure — a gap researchers should fill by consulting treatises on the history of common law pleading.
Jurisdictional Note
Per fraudem as a named pleading form is effectively a creature of English common law procedure. Its direct application in American courts was limited to the era of common law pleading before code reform, and it never achieved uniform recognition across all American jurisdictions. Modern practitioners across all U.S. jurisdictions and in England would not use this label, though the underlying concept — fraud vitiating a release or discharge — remains universally recognized.