“Actual knowledge” typically includes only the information of which the person, or group of persons, whose knowledge is at issue, is consciously aware. It refers only to what the person knows when the statement is made. It does not include facts or information that the person has forgotten or that is in the person’s old files or records.
“Constructive knowledge” includes matters that a person is supposed to know or could have found out. A person may have constructive knowledge of something even if that person does not have, and never had, actual knowledge of it. Black’s Law Dictionary (10th Ed. 2014) defines “constructive knowledge” as “[k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.”
“Imputed knowledge” means knowledge of one person attributed to another person. Knowledge is imputed from one person to another based on their legal relationship. For example, the knowledge of an agent may be imputed to the principal, the knowledge of an employee or officer may be imputed to the employer or company, and the knowledge of a partner may be imputed to other partners and to the partnership.
“Best knowledge” is reflected in a statement such as “the following is true to the best of my knowledge,” or when a written statement or representation begins with “to the best of the knowledge, information, and belief of the undersigned.”
Many commercial lawyers believe that when a person makes a representation in a transactional document to that person’s “best knowledge,” the representation is based on more information than had that person used the phrase “the following is true to the knowledge of the undersigned.” Those lawyers believe that if the phrase “best knowledge” is used, it implies that the knowledge of the person making the representation is based on research, due diligence, or investigation done shortly before the time that the representation is made. But most reported cases about the meaning of “best knowledge” have reached the opposite conclusion and hold that if a person uses the term “best knowledge” in an affidavit, application, or representation the term embodies a level of uncertainty.
If a rule of court requires a statement to the personal knowledge of someone, a statement to the “best knowledge” of a person is insufficient. A statement made to the “best knowledge” of a person does not mean that the person