22
Opinion of the Court
730, 739 (1989)); see Standard Oil Co. of N. J. v. United States, 221 U. S. 1, 59 (1911) ("[W]here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense"). Neder contends that "de-fraud" is just such a term, and that Congress implicitly incorporated its common-law meaning, including its requirement of materiality,5 into the statutes at issue.
The Government does not dispute that both at the time of the mail fraud statute's original enactment in 1872, and later when Congress enacted the wire fraud and bank fraud statutes, actionable "fraud" had a well-settled meaning at common law. Nor does it dispute that the well-settled meaning of "fraud" required a misrepresentation or concealment of material fact. Indeed, as the sources we are aware of demonstrate, the common law could not have conceived of "fraud" without proof of materiality. See BMW of North America, Inc. v. Gore, 517 U. S. 559, 579 (1996) ("[A]ctionable fraud requires a material misrepresentation or omission" (citing Restatement (Second) of Torts § 538 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 108 (5th ed. 1984))); Smith v. Richards, 13 Pet. 26, 39 (1839) (in an action "to set aside a contract for fraud" a "misrepresentation must be of something material"); see also 1 J. Story, Commentaries on Equity Jurisprudence § 195 (10th ed. 1870) ("In the first place, the misrepresentation must be of something material, constituting an inducement or motive to the act or omission of the other
5 The Restatement instructs that a matter is material if: "(a) a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question; or "(b) the maker of the representation knows or has reason to know that its recipient regards or is likely to regard the matter as important in determining his choice of action, although a reasonable man would not so regard it." Restatement (Second) of Torts § 538 (1977).
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