false pretense

Criminal law

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False pretenses or obtaining property by false pretenses^a[›] is when a person or persons obtains property by lying about a past or existing fact. In English law, these were deception offences defined in the Theft Act 1968 and Theft Act 1978, although they have now been repealed by the Fraud Act 2006 which has replaced them with different offences.

The law in the United States Of America

This offence consists of (1) obtaining title (2) to personal property of another (3) by an intentional false statement of past or existing fact (4) with intent to defraud the other.^[1] False Pretenses is a statutory offense in most jurisdictions. The subject matter of false pretenses is not limited to tangible personal property - statutes include intangible personal property and services. For example the North Carolina false pretense statute applies to obtaining "any money, goods, property, services, choses in action, or any other thing of value ..."^[2]

Under common law, false pretense is defined as a representation of a present or past fact, which the thief knows to be false, and which he intends will and does cause the victim to pass title of his property. That is, false pretense is the acquisition of title from a victim by fraud or misrepresentation of a material past or present fact.

Note that it is essential that the victim of the false pretenses must actually be deceived by the misrepresentation, and the fact that the victim is deceived must be a major (if not the only) factor of the victim's transferring title to the defendant. Simply making a false promise or statement is not sufficient. It is not a defense to false pretenses charge that a reasonable person would not have been deceived by the false representation. No matter how gullible the victim, if he/she was in fact deceived the offense has been committed. On the other hand the offense requires the victim believe the representation to be true. If the person to whom the representation has been made has doubts or serious misgivings about the truth of the representation but nonetheless goes through with the transaction he has not been deceived - he has basically assumed the risk of a false representation.

The misrepresentation has to be affirmative. A failure to disclose a fact does not fit this misrepresentation in common law, unless there is a fiduciary duty between the thief and victim. Courts have also held that the representation be of a present or past fact. The policy here is that to rely on a future fact is more foolish. People who deceive using present facts are more dangerous than those who deceive by false promises. At trial, the prosecution must show not only that the misrepresentation was false, but that the thief knew of the falsity. Additionally, the thief must intend to defraud. Moreover, opinion and puffing are not considered misrepresentation as they color the facts but do not misrepresent them.

Additionally, title must pass between parties. So, deceiving a third party to pass property for a specific purpose, courts have held that this is larceny by trick in that larceny by trick simply uses a deception to deprive the owner of possession, not title.

False pretences as a concept in the criminal law is no longer used in English law. It used to refer to the means whereby the defendant obtained any chattel, money or valuable security from any other person with intent to defraud. It used to be an indictable misdemeanour under the Larceny Act 1861 as amended by the Larceny Act 1916. The modern concept is a deception and it is used as the common basis of the actus reus (the Latin for "guilty act") in the deception offences under the Theft Act 1968 and in the Theft Act 1978.

False pretense is conventionally referred to as a crime against “title.” However, this is not to be taken literally for the simple reason that a person who obtains ownership of property by deceit does not obtain full title to the property; only a voidable title.^[3]. False pretense applies to situations where the wrongdoer by deceit obtains “title or ownership – or whatever property interest the victim had in the chattel, if it was less than title.”^[3] Larceny by Trick applies to situations where the wrongdoer by deceit obtains possession only, with the victim retaining ownership or some superior interest in the chattel.^[3]Note that if property is falsely obtained for a specific purpose - for example money to buy a car that does not exist - the crime is larceny by trick rather than false pretenses because the victim intended to pass title to the money only upon completion of the transaction; until such time the victim intended to deliver possession only. ^[4]

The determination as to whether the offense is larceny or false pretenses can have significant effect on the ability of true owner to reclaim the appropriated property. If false pretenses, a bona fide purchaser for value would acquire title superior to the victim; whereas, if the crime is larceny a purchaser from the wrongdoer, bona fide or otherwise, would not acquire any title to the property and would have to return the property to the victim.

The subject matter of false pretense statutes is much broader than larceny. Larceny applies only to the stealing of tangible personal property. False pretense usually applies to all types of property tagible intangible as well as services.

History

The three major theft offenses are larceny, embezzlement and false pretenses. Larceny was a common law offense (created by judicial action) while embezzlement and false pretenses were statutory offenses (created by legislative action). Larceny is by far the oldest. The elements of larceny were “well-settled” by the thirteenth century. The only other theft offense then existing was cheats which was a misdemeanor. Cheats was a primitive version of the crime of false pretenses – the crime applied to obtaining property by the use of false weights or measures. In 1541 a statute was enacted by Parliament that made it a misdemeanor to obtain property by a false token or a counterfeit letter “made in any other man’s name.” ^[5] This statute did not cover obtaining property by the use false spoken words.^[5] The first “modern” false pretense statute was enacted by Parliament in 1757.^[5] The statute prohibited obtaining “money, goods, wares, or merchandise” by “false pretence.”^[5] The first general embezzlement statute was enacted by Parliament in 1799. Neither of these statutes were part of the American common law. However, most states passed laws similar to the English statutes.^[6]

The broad distinction between this offence and larceny is that in the former the owner intends to part with his property, in the latter he does not. This offence dates as a statutory crime practically from 1756. At common law the only remedy originally available for an owner who had been deprived of his goods by fraud was an indictment for the crime of cheating, or a civil action for deceit. These remedies were insufficient to cover all cases where money or other properties had been obtained by false pretences, and the offence was first partially created by a statute of Henry VIII (1541), which enacted that if any person should falsely and deceitfully obtain any money, goods, &c., by means of any false token or counterfeit letter made in any other man's name, the offender should suffer any punishment other than death, at the discretion of the judge. The scope of the offence was enlarged to include practically all false pretences by the act of 1756, the provisions of which were embodied in the Larceny Act 1861.

The principal points to notice are that the pretence must be a false pretence of some existing fact, made for the purpose of inducing the prosecutor to part with his property (e.g. it was held not to be a false pretence to promise to pay for goods on delivery), and it may be by either words or conduct. The property, too, must have been actually obtained by the false pretence. The owner must be induced by the pretence to make over the absolute and immediate ownership of the goods, otherwise it is larceny by means of a trick. It is not always easy, however, to draw a distinction between the various classes of offences. In the case where a man goes into a restaurant and orders a meal, and, after consuming it, says that he has no means of paying for it, it was usual to convict for obtaining food by false pretences. But ??. v. Jones, 1898, L.R. I Q.B. ff9 decided that it is neither larceny nor false pretences, but an offence under the Debtors Act 1869, of obtaining credit by fraud.

United States

United States statutes on this subject are mainly copied from the English statutes, and the courts there in a general way follow the English interpretations. The statutes of each state must be consulted. There is no Federal statute, though there are Federal laws providing penalties for false personation of the lawful owner of public stocks, &c., or of persons entitled to pensions, prize money, &c.,^[7] or the false making of any order purporting to be a money order.^[8]

Arizona

In Arizona, obtaining money or property by falsely personating another is punishable as for larceny.^[9] Obtaining credit by false pretences as to wealth and mercantile character is punishable by six months imprisonment and a fine not exceeding three times the value of the money or property obtained.^[10]

Illinois

In Illinois, whoever by any false representation or writing signed by him, of his own respectability, wealth or mercantile correspondence or connections, obtain; credit and thereby defrauds any person of money, goods, chattels or any valuable thing, or who procures another to make a false report of his honesty, wealth, &c., shall return the money, goods, &c., and be fined and imprisoned for a term not exceeding one year.^[11] Obtaining money or property by bogus cheques, the confidence game,^[12] or three card monte, sleight of hand, fortune-telling, &c., is punishable by imprisonment for from one to ten years.^[13] Obtaining goods from warehouse, mill or wharf by fraudulent receipt wrongly stating amount of goods deposited by imprisonment for not less than one nor more than ten years.^[14] Fraudulent use of railroad passes is a misdemeanour.^[15]

Massachusetts

In Massachusetts it is simple larceny to obtain by false pretences the money or personal chattel of another.^[16] Obtaining by a false pretence with intent to defraud the signature of a person to a written instrument, the false making whereof would be forgery, is punishable by imprisonment in a state prison or by fine.^[17]

New York

In New York, obtaining property by false pretenses, felonious breach of trust and embezzlement are included in the term larceny,^[18][19][20]), but the methods of proof required to establish each crime remain as before the code. Obtaining lodging and food on credit at hotel or lodging house with intent to defraud is a misdemeanour.^[21] Purchase of property by false pretences as to persons means or ability to pay is not criminal when in writing signed by the party to be charged^[22]

Notes

• ^ a: The use of the word "pretenses" here is perhaps slightly confusing to a modern reader since "pretense", in the modern sense of the word, is the conscious creation of fiction, but in the former sense of the word, as it was borrowed from the French language, it simply meant "claim" or sometimes "belief". See also Pretender for another case of confusion on this point. In certain other cases, the distinction between the two definitions affects the meaning only slightly, as in "John pretends to a great knowledge of world history", which to the speaker clearly refers to something untrue, but more in the nature of wishful thinking on the part of John himself than a lie as St Augustine would define it (requiring the liar to be conscious of the untruth).
  

References

• This article incorporates text from the Encyclopædia Britannica, Eleventh Edition, a publication now in the public domain.