False pretenses
Encyclopedia
Obtaining property by false pretenses is when a person obtains property by intentionally misrepresenting a past or existing fact.
(1) a false representation
(2) of a material past or existing fact
(3) which the person making the representation knows is false
(4) made for the purpose of causing
(5) and which does cause
(6) the victim to pass title
(7) to his property [3]
False pretenses is a statutory offense in most jurisdictions; subject matter covered by statute varies accordingly, and is not necessarily limited to tangible personal property - some 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 ..."[4]
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.
a false representation - there must be a description or portrayal of something that is false. If a person makes a statement about something that he mistakenly believes to be untrue there is no false representation. For example, if a person represents that the ring is a diamond solitaire when he believes that is in fact made of cubic zirconium he is not guilty of false pretenses if it turns out that the ring was in fact a diamond. The representation must be false at the time title passes. Thus if the reprentation was false when made but is true at the time title to the property passes there is no crime. For example, representing to a seller that you have funds available in your bank account to pay for the goods when in fact your account has a zero balance is not false pretenses if at the time the transaction takes place adequate funds are present in the account. The representation may be oral or written. 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. Moreover, opinion and puffing are not considered misrepresentation as they color the facts but do not misrepresent them.
of a material past or existing fact - the representation must relate to a material past or existing fact. A representation concerning a future state of facts is not sufficient. Nor is merely an expression of opinion.
which the person making the representation knows is false - A mistaken representation about some past or existing state of facts is not sufficient for false pretense.
made for the purpose of causing and which does cause - It is essential that the victim of the false pretenses must actually be deceived by the misrepresentation that is the vicitm must transfer title to the property in reliance on the representation 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.
Title passes - False pretense is conventionally referred to as a crime against “title” and "title" must pass from the victim to the perpetrator for the crime to be complete. 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. 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.” If the victim has an interest is the property less than full title the acquisition of that interest through false representation can be false pretenses unless the only interest the person has is possession of the property. In such case the crime would be larceny by trick rather than false pretenses. Larceny by Trick also applies to situations where the wrongdoer by deceit obtains possession only, with the victim retaining ownership or some superior interest in the chattel.[5] Determining whether the victim obtained title or possession can present problems. Generally a sell or conditional sell is sufficient to pass title for purposes of false pretenses whereas lending property does not involve a transfer of title. 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.
The essential distinction between false pretenses and larceny and embezzlement is that false pretenses requires that the victim pass title to the defendant whereas the other offenses do not.
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.
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., or the false making of any order purporting to be a money order
.
History
The first “modern” false pretense statute was enacted by Parliament in 1757. The statute prohibited obtaining “money, goods, wares, or merchandise” by “false pretence.” 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.
, obtaining money or property by falsely impersonating another is punishable as for larceny. Obtaining credit by false pretenses 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.
, 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. Obtaining money or property by bogus cheques, the confidence game, or three card monte, sleight of hand, fortune-telling, &c., is punishable by imprisonment for from one to ten years. 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. Fraudulent use of railroad passes is a misdemeanor. A person who knowingly personates a public official, a veteran, the recipient of a medal, the holder of a title, or profits from a false academic degree is unlawful.
it is simple larceny to obtain by false pretenses the money or personal chattel of another. Obtaining by false pretence the making, acceptance or endorsement of a bill of exchange or promissory note, the release or substitution of collateral or other security, an extension of time for payment of an obligation, or the release or alteration of the obligation of a written contract, is larceny and punishable by imprisonment.
, obtaining property by false pretenses, felonious breach of trust and embezzlement are included in the term larceny,), 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 misdemeanor. 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
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, indictable as a 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
. The Fraud Act 2006
repealed these latter two Acts and replaced deception offences with other offences.
, embezzlement
and false pretences. Larceny was a common law offence (created by judicial action) while embezzlement and false pretences were statutory offences (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 offence then existing was cheat which was a misdemeanor. Cheat was a primitive version of the crime of false pretences and involved 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." This statute did not cover obtaining property by the use false spoken words. The first "modern" false pretence statute was enacted by Parliament in 1757. The statute prohibited obtaining "money, goods, wares, or merchandise" by "false pretence." The first general embezzlement statute was enacted by Parliament in 1799.
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 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 in R v Jones , an English court found that it is neither larceny nor false pretences, but an offence under the Debtors Act 1869, of obtaining credit by fraud.
R v Danger revealed a lacuna
in the law. This was remedied by section 90 of the Larceny Act 1861
. That section was replaced by section 32(2) of the Larceny Act 1916.
Section 32 of the Larceny Act 1916
read:
The offence of obtaining by false pretences, contrary to section 32(1) of the Larceny Act 1916
, was replaced by the offence of obtaining property by deception
, contrary to section 15 of the Theft Act 1968
. Section 32(2) of the Larceny Act 1916 was replaced by section 20(2) of the Theft Act 1968.
Elements
The elements of false pretenses are:(1) a false representation
(2) of a material past or existing fact
(3) which the person making the representation knows is false
(4) made for the purpose of causing
(5) and which does cause
(6) the victim to pass title
(7) to his property [3]
False pretenses is a statutory offense in most jurisdictions; subject matter covered by statute varies accordingly, and is not necessarily limited to tangible personal property - some 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 ..."[4]
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.
a false representation - there must be a description or portrayal of something that is false. If a person makes a statement about something that he mistakenly believes to be untrue there is no false representation. For example, if a person represents that the ring is a diamond solitaire when he believes that is in fact made of cubic zirconium he is not guilty of false pretenses if it turns out that the ring was in fact a diamond. The representation must be false at the time title passes. Thus if the reprentation was false when made but is true at the time title to the property passes there is no crime. For example, representing to a seller that you have funds available in your bank account to pay for the goods when in fact your account has a zero balance is not false pretenses if at the time the transaction takes place adequate funds are present in the account. The representation may be oral or written. 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. Moreover, opinion and puffing are not considered misrepresentation as they color the facts but do not misrepresent them.
of a material past or existing fact - the representation must relate to a material past or existing fact. A representation concerning a future state of facts is not sufficient. Nor is merely an expression of opinion.
which the person making the representation knows is false - A mistaken representation about some past or existing state of facts is not sufficient for false pretense.
made for the purpose of causing and which does cause - It is essential that the victim of the false pretenses must actually be deceived by the misrepresentation that is the vicitm must transfer title to the property in reliance on the representation 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.
Title passes - False pretense is conventionally referred to as a crime against “title” and "title" must pass from the victim to the perpetrator for the crime to be complete. 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. 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.” If the victim has an interest is the property less than full title the acquisition of that interest through false representation can be false pretenses unless the only interest the person has is possession of the property. In such case the crime would be larceny by trick rather than false pretenses. Larceny by Trick also applies to situations where the wrongdoer by deceit obtains possession only, with the victim retaining ownership or some superior interest in the chattel.[5] Determining whether the victim obtained title or possession can present problems. Generally a sell or conditional sell is sufficient to pass title for purposes of false pretenses whereas lending property does not involve a transfer of title. 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.
The essential distinction between false pretenses and larceny and embezzlement is that false pretenses requires that the victim pass title to the defendant whereas the other offenses do not.
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.
United States
United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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., or the false making of any order purporting to be a money order
Money order
A money order is a payment order for a pre-specified amount of money. Because it is required that the funds be prepaid for the amount shown on it, it is a more trusted method of payment than a cheque.-History of money orders:...
.
History
The first “modern” false pretense statute was enacted by Parliament in 1757. The statute prohibited obtaining “money, goods, wares, or merchandise” by “false pretence.” 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.
Arizona
In ArizonaArizona
Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...
, obtaining money or property by falsely impersonating another is punishable as for larceny. Obtaining credit by false pretenses 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.
Illinois
In IllinoisIllinois
Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...
, 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. Obtaining money or property by bogus cheques, the confidence game, or three card monte, sleight of hand, fortune-telling, &c., is punishable by imprisonment for from one to ten years. 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. Fraudulent use of railroad passes is a misdemeanor. A person who knowingly personates a public official, a veteran, the recipient of a medal, the holder of a title, or profits from a false academic degree is unlawful.
Massachusetts
In MassachusettsMassachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...
it is simple larceny to obtain by false pretenses the money or personal chattel of another. Obtaining by false pretence the making, acceptance or endorsement of a bill of exchange or promissory note, the release or substitution of collateral or other security, an extension of time for payment of an obligation, or the release or alteration of the obligation of a written contract, is larceny and punishable by imprisonment.
New York
In New YorkNew York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, obtaining property by false pretenses, felonious breach of trust and embezzlement are included in the term larceny,), 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 misdemeanor. 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
United Kingdom
False pretences as a concept in the criminal lawCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
is no longer used in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. It used to refer to the means whereby the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
obtained any chattel, money or valuable security from any other person with intent to defraud, indictable as a 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
Actus reus
Actus reus, sometimes called the external element or the objective element of a crime, is the Latin term for the "guilty act" which, when proved beyond a reasonable doubt in combination with the mens rea, "guilty mind", produces criminal liability in the common law-based criminal law jurisdictions...
(the Latin
Latin
Latin is an Italic language originally spoken in Latium and Ancient Rome. It, along with most European languages, is a descendant of the ancient Proto-Indo-European language. Although it is considered a dead language, a number of scholars and members of the Christian clergy speak it fluently, and...
for "guilty act") in the deception offences under the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
and in the Theft Act 1978
Theft Act 1978
The Theft Act 1978 is an Act of the Parliament of the United Kingdom. It supplemented the earlier deception offences contained in sections 15 and 16 of the Theft Act 1968 by reforming some aspects of those offences and adding new provisions...
. The Fraud Act 2006
Fraud Act 2006
The Fraud Act 2006 is an Act of the Parliament of the United Kingdom. It affects England and Wales and Northern Ireland. It was given Royal Assent on 8 November 2006, and came into effect on 15 January 2007.-Purpose:...
repealed these latter two Acts and replaced deception offences with other offences.
History
The three major theft offences were larcenyLarceny
Larceny is a crime involving the wrongful acquisition of the personal property of another person. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales,...
, embezzlement
Embezzlement
Embezzlement is the act of dishonestly appropriating or secreting assets by one or more individuals to whom such assets have been entrusted....
and false pretences. Larceny was a common law offence (created by judicial action) while embezzlement and false pretences were statutory offences (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 offence then existing was cheat which was a misdemeanor. Cheat was a primitive version of the crime of false pretences and involved 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." This statute did not cover obtaining property by the use false spoken words. The first "modern" false pretence statute was enacted by Parliament in 1757. The statute prohibited obtaining "money, goods, wares, or merchandise" by "false pretence." The first general embezzlement statute was enacted by Parliament in 1799.
The broad distinction between this offence and larceny
Larceny
Larceny is a crime involving the wrongful acquisition of the personal property of another person. It was an offence under the common law of England and became an offence in jurisdictions which incorporated the common law of England into their own law. It has been abolished in England and Wales,...
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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Henry VIII of England
Henry VIII was King of England from 21 April 1509 until his death. He was Lord, and later King, of Ireland, as well as continuing the nominal claim by the English monarchs to the Kingdom of France...
(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
Larceny Act 1861
The Larceny Act 1861 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions related to larceny and similar offences from a number of earlier statutes into a single Act...
.
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 in R v Jones , an English court found that it is neither larceny nor false pretences, but an offence under the Debtors Act 1869, of obtaining credit by fraud.
R v Danger revealed a lacuna
Lacuna
Lacuna may refer to:* Lacuna , a missing section of text* Lacuna , an extended silence in a piece of music* Lacuna , a lexical gap in a language* Lacuna , the lack of a law or legal source addressing a situation...
in the law. This was remedied by section 90 of the Larceny Act 1861
Larceny Act 1861
The Larceny Act 1861 was an Act of the Parliament of the United Kingdom of Great Britain and Ireland . It consolidated provisions related to larceny and similar offences from a number of earlier statutes into a single Act...
. That section was replaced by section 32(2) of the Larceny Act 1916.
Section 32 of the Larceny Act 1916
Larceny Act 1916
The Larceny Act 1916 was an Act of the Parliament of the United Kingdom. Its purpose was to consolidate and simplify the law relating to larceny triable on indictment and to kindred offences ....
read:
The offence of obtaining by false pretences, contrary to section 32(1) of the Larceny Act 1916
Larceny Act 1916
The Larceny Act 1916 was an Act of the Parliament of the United Kingdom. Its purpose was to consolidate and simplify the law relating to larceny triable on indictment and to kindred offences ....
, was replaced by the offence of obtaining property by deception
Obtaining property by deception
Obtaining property by deception was formerly a statutory offence in England and Wales and Northern Ireland.-England and Wales:This offence was created by section 15 of the Theft Act 1968...
, contrary to section 15 of the Theft Act 1968
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
. Section 32(2) of the Larceny Act 1916 was replaced by section 20(2) of the Theft Act 1968.