False Pretenses

Obtaining property by false pretenses is when a person obtains property by intentionally misrepresenting a past or existing fact. 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.

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 ..." 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.

For 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.