(concurring). I agree that the case should be remanded. Upon reviewing the instructions on negligent and intentional misrepresentation1 and on fiduciary duty,2 I conclude that the ju*144rors were not adequately advised that it was their duty to determine whether, under the circumstances of this case, there was a relationship of trust and confidence that would give rise to a duty on the broker to disclose material information about the transaction in issue.3 If there was a duty to disclose material information, the failure to disclose could constitute intentional or negligent misrepresentation. I would therefore remand this case for retrial, in the interests of justice, on the issues of negligent and intentional misrepresentation. Restatement (Second) of Torts, sec. *145551(1)(2) (1976). The real controversy was not fully and fairly tried. Sec. 751.06, Stats. 1983-84.
I do not join the majority opinion because it misconstrues the concepts of fiduciary duty and trust and confidence and erroneously limits the issues on remand.4
The central issue in this case concerns the nature of the relation between a customer who has a nondiscretion-ary account and the broker. The relation is one of principal and agent, and the broker, like other agents, is a fiduciary. 1 Restatement (Second) of Agency, sec. 1 (1958). A fiduciary is under a duty to act for the benefit of another as to matters within the scope of the relation, e.g., with respect to matters within the scope of the agency.
The extent of the duties imposed is not identical in all fiduciary relations. 1 Restatement (Second) of Agency, sec. 1 (1958); 1 Restatement (Second) of Trusts, sec. 2, comment b, pp. 6-7 (1976). In a nondiscretionary account the scope of the broker's agency is generally to execute the customer's instructions. Aside from the fiduciary duty arising out of the express agreement that the broker buy and sell investments as instructed, the broker-customer relation is not one traditionally recognized as a fiduciary relation. The majority is correct therefore in holding that the broker-customer relation alone does not, in this case, *146give rise to a fiduciary duty to disclose all material information.
Nevertheless, a "nonfiduciary" business relationship may become a relationship of trust and confidence when one person gains the confidence of the other and purports to act or advise that person with the other's interest in mind. Bogert, Trusts and Trustees Section 482 (1978); Page and Keeton, The Law of Torts sec. 106, p. 738 (1984); James and Gray, Misrepresentation-Part II, 37 Md. L. Rev. 488, 524-525 (1978); Restatement (Second) of Trusts, sec. 2, p. 7 (1957); 1 Scott, Trusts, sec. 2.5, pp 39-42 (1967). In this case a relationship of trust and confidence would impose on the broker the same duty that a traditional fiduciary relationship might impose, namely, a duty to disclose material facts relating to the transaction in question. Restatement (Second) of Trusts, sec. 2, Comment, p. 7; Restatement (Second) of Torts, sec. 551(l)(2)(a).
Brokers may sometimes give incidental advice or information in executing their duties for customers with nondiscretionary accounts. The broker does not gain the trust and confidence of the customer simply by virtue of providing incidental advice. Nevertheless, a broker must use due care in giving advice even where there is no relation of trust and confidence. In exercising due care a broker must disclose subsequently acquired information that he knows will make untrue or misleading a previous representation that was true or believed when made. Restatement (Second) of Torts, sec. 551(l)(2)(c).5
*147A relationship of trust and confidence would place an additional duty upon the broker to disclose material information whether or not the subsequently acquired information makes untrue or misleading a previous representation. Whether a broker placed himself or herself in a position of trust and confidence depends on many circumstances, including the course of conduct between the broker and the customer, the customer's sophistication, the extent to which the broker undertakes to give advice and counsel, whether the customer in fact placed confidence in the broker, and whether the customer was justified in placing confidence in the broker.
*148In sum, there is no special formula for determining whether a relationship of trust and confidence exists. The disposition of this issue depends on the circumstances. In Wisconsin, the question of whether such a relationship exists is for the jury.
The issue in this case, then, is whether there was sufficient evidence for the circuit court to submit to the jury the question whether there were special circumstances which gave rise to a relationship of trust and confidence, thereby imposing on the broker the duty to disclose all material information about the transaction involved.
I conclude that in this case there was sufficient evidence for the question to go to the jury. The broker testified at trial that the customer "regularly" asked "what Merrill Lynch's Research Department had to say about . . . particular commodities" during March, April, and May of 1978. In addition, a letter from the broker to customer Boeck (dated August 9,1977) was admitted into evidence in which the broker described the initiation of a "dual approach concept... to provide your account with continuous attention and monitoring." Boeck also testified that the broker called him every morning and at least twice a day when he was not on the road. Boeck selected the broker on the basis of the firm's advertisements representing the firm's ability to provide advice and counsel. Although the customer's skill and expertise suggest the absence of trust and confidence, the jury, had it been properly instructed, could have found that a relationship of trust and confidence existed.
The majority holds that a broker who provides advice and counsel to a customer with a nondiscretionary account has a fiduciary duty to disclose all material information regarding a customer's transaction if there is an express agreement or special circumstances. Pp. 135-136. The majority opinion repeatedly recognizes — seven times to be precise — that special circumstances can impose a *149fiduciary duty on the broker to disclose material information to a customer with a nondiscretionary account. See pp. 133, 134, 135 and 136-137.6 The majority fails, however, to explain what it means by the phrase special circumstances. Moreover, it then states — without explanation — that there are no special circumstances in this case which could give rise to a relationship of trust and confidence.7 In stating in a conclusory fashion that no special circumstances exist in this case, the majority not only misapplies the law, it fails to provide guidance to the industry and the courts.
Refusing to remand the case for the jury to determine whether any special circumstances existed in this case, *150the court limits the scope of the remand on the issue of negligent misrepresentation: The jury is to consider only affirmative misrepresentations and the broker's failure to disclose information which rendered previously stated information false or misleading. Restatement (Second) of Torts, sec. 551 (1)(2)(c). Majority opinion pp. 142-143.
The critical problem in the majority's opinion is demonstrated in its mischaracterization of the issue presented. The majority poses the issue in the case as follows: "(1) Does a commodities broker who undertakes to provide investment information and counsel to a customer with a nondiscretionary account, and who later learns that previously given information has been changed or was incorrect, have a fiduciary duty to disclose the latest information before the customer invests through the same broker in reliance on the original disclosure?" P. 130. (Emphasis added.) The question of whether a broker who has furnished information has a duty to correct that information is distinct from the question of whether a broker who undertakes to advise and counsel has a fiduciary duty to disclose all material information. Moreover, the question of whether a fiduciary relation exists as a matter of law is distinct from the question of whether there is in fact a relationship of trust and confidence that would give rise to a duty to disclose.
The majority's confusion regarding the nature of the fiduciary duty and the type of information that should be disclosed is also revealed when the majority states: "recognizing the full implications of treating a broker as a fiduciary, we refuse to hold that a broker is liable as a fiduciary for representations to an investor with nondiscretionary account. We would make a broker a guarantor of a customer's investments if we held otherwise." (At 137.) Disclosure of material information would not make the broker a guarantor of a customer's investment. The duty to disclose material information to a cus*151tomer with a nondiscretionary account is distinct from a duty to propose a financially successful course of trading or investment.
In instructing the jury on negligent and intentional misrepresentation in this case, the circuit court correctly advised the jury that a misrepresentation may be made by silence if there is a duty to speak. The circuit court further instructed the jury that it could conclude that the broker had a duty to speak if it determined that the relation between the broker and customer was one of trust and confidence. The circuit court failed, however, to inform the jury what circumstances might give rise to such a relation and probably confused the jury with the erroneous instruction regarding a fiduciary duty to disclose material information. I would therefore remand the case for a new trial on all the issues involved in negligent and intentional misrepresentation, including the question of a duty to speak arising from a relation of trust and confidence.
I cannot join the majority opinion which excludes the element of trust and confidence in the remand for a retrial on the question of negligent misrepresentation.
There are four elements in a cause of action for negligent misrepresentation and five for intentional misrepresentation, and the jury was so instructed. The first element in each cause of action — and the one in issue in this review — is that the broker made a representation of fact. The circuit court correctly instructed the jury that a representation may be made by an affirmative act or by silence if there is a duty to disclose. If there is a duty to speak, a failure to disclose is treated in the law as equivalent to a representation of the nonexistence of the fact. Ollerman v. O'Rourke Co., Inc., 94 Wis. 2d 17, 26, 46, 288 N.W. 2d 95 (1980); Restatement (Second) of Torts, sec. 551 (1).
A duty to speak may arise from a number of circumstances. See Restatement of Torts (Second), sec. 551 (1976). See note 5 infra.
*144In this case, the circuit court following Wis. J.I.-Civil No. 2043, instructed the jury as follows on the first element of negligent and intentional misrepresentation:
"First, that the plaintiff made the representation of fact. Representations of fact do not have to be in writing or even by word of mouth. They may be by acts or conduct on the part of the plaintiff or even by silence, if there is a duty to speak. A duty to speak may arise when information is asked for or where circumstances would call for a response in order that the parties may be on an equal footing, or where there is a relationship of trust or confidence between the parties.
"An expression of opinion which either indicates some doubt as to the speaker's belief in the existence of a state of fact, or merely expresses his judgment on some matter such as quality, value, authenticity and the like, does not constitute a representation of fact. However, a statement of opinion carries with it an implied assertion that the speaker knows that the facts exist which support his opinion, may, in your discretion, be determined by you to be representation of fact. In making your determination, you may consider the form and the manner of expression, or the existence of a trust or confidence relationship between the parties. “ (Emphasis added.)
The circuit court instructed the jury that if the broker undertook to advise and counsel the customer with respect to financial investments, the broker assumed a fiduciary duty to disclose all material information in the broker's possession as to the transactions involved.
Material information is information that a reasonable person would attach importance to in determining a choice of action in the transaction in question. 3 Restatement (Second) of Torts sec. 538. The majority's fear of imposing on brokers too heavy a duty to disclose is based on an erroneous characterization of what such a duty would entail. Pp 134-135.
In summary, I agree with the majority that the circuit court erred in instructing the jury that a broker who undertakes to advise and counsel a customer with a nondiscretionary account has, as a matter of law, a duty to disclose material information relating to the transaction. I also agree with the majority that in the absence of an express agreement or special circumstances, a broker who provided incidental investment information to a customer with a nondiscretionary account has no fiduciary duty, as a matter of law, to disclose all material information regarding the transaction in which the customer engages. In my view, the question of whether giving information, advice or counsel gives rise to a duty to disclose material information depends on the circumstances in the particular case.
Sec. 551, Restatement (Second) of Torts, entitled Liability for Nondisclosure, provides as follows:
"(1) One who fails to disclose to another a fact that he knows may justifiably induce the other to act or to refrain from acting in a business transaction is subject to the same liability to the other as though he had represented the nonexistence of the matter that he has failed to disclose, if, but only if, he is under a duty to the other to exercise reasonable care to disclose the matter in question.
"(2) One party to a business transaction is under a duty to exercise
*147reasonable care to disclose to the other before the transaction is consummated,
"(a) matters known to him that the other is entitled to know because of a fiduciary or other similar relation of trust and confidence between them; and
"(c) subsequently acquired information that he knows will make untrue or misleading a previous representation that when made was true or believed to be so; and
"(e) facts basic to the transaction, if he knows that the other is about to enter it under a mistake as to them, and that the other, because of the relationship between them, the customs of the trade or other objective circumstances, would reasonably expect a disclosure of those facts."
For a discussion of sec. 551, see U.S. Nat. Bank of Oregon v. Fought, 291 Or. 201, 630, p. 2d 337 (1981); Central States Stamping Co. v. Terminal Equipment Co., Inc., 727 F. 2d 1405, 1409 (6th Cir. 1984).
See also, e.g., Briggs v. Goodwin, 698 F.2d 486, 492, rehearing granted and opinion vacated 712 F.2d 1444 (D.C. Cir. 1983), cert. denied 464 U.S. 1040, 104 S.Ct. 704 (1984) (common law tort principles of misrepresentation and deceit impose a duty to correct an incorrect statement to those justifiably relying on it): U.S. Fidelity & Guaranty Co. v. Black, 313 N.W.2d 77, 89 (Mich. 1981) (parties to business transactions are under a general obligation to disclose information that renders previous representations untrue or misleading); Miles v. McSwegin, 388 N.E.2d 1367, 1369 (Ohio 1979) (seller of residential property under duty to disclose information that made earlier representations incorrect).
For a discussion of "special circumstances" creating a relation of trust and confidence which gives rise to a duty to disclose material information, see, e.g., Shearson, Hayden, Stone, Inc. v. Leach, 583 F.2d 367, 371-72 (7th Cir. 1978) (customer made all investment decisions; no requirement to relay market information unless a fiduciary relationship existed); Robinson v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 337 F. Supp. 107, 113 (N.D. Ala. 1971), aff'd, 453 F.2d 417 (5th Cir. 1972) ("absent an express . . . contract there is no fiduciary duty unless the customer is infirm or ignorant of business affairs"); Leib v. Merrill Lynch, Pierce, Fenner & Smith, 461 F. Supp. 951, 954 (E.D. Mich. 1978) (where sophisticated investor had nondiscretionary account, social or personal involvement may give rise to relation of trust and confidence).
The question of whether the facts of a particular case give rise to a duty by the broker to disclose material information is one for the jury to decide on the basis of all the circumstances in the case. See Killeen v. Parent, 23 Wis. 2d 244, 251, 127 N.W.2d 38 (1964); Wis. J.I.-Civil No. 2402, 2403, and the instructions in this case. Without any discussion, the majority opinion deviates from this precedent by deciding whether there are special circumstances from which the law will assume an obligation to act. P. 136. Compare Prosser and Keeton, The Law of Torts, sec. 106, p. 739 (1984), which states that the issue of whether there is a duty of disclosure because the circumstances are such that the failure to disclose something would violate a standard requiring conformity to what the ordinary ethical person would have disclosed has been regarded in some jurisdictions as one for the court rather than the jury. Sec. 551(2)(e), Restatement (Second) of Torts. See also Ollerman v. O'Rourke Co., 94 Wis.2d 17, 27, 31, 288 N.W.2d 95 (1980).