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False Pretenses

(See, MPC § 223.3)
False pretenses is generally defined by statute as the making of false representations, knowing that they are false, with intent to thereby deceive and cause transfer of title to property.

Mnemonic: FAKING IT

A. False Representations

Originally, false statements had to concern a present or past material fact; false promises were not punishable. Some courts now accept false statements as to future facts when the statements are made knowingly and with intent to deceive.

B. Knowing

It is necessary to show that one knew or should have reasonably known that the representations one made were false. False statements or promises made unknowingly are not punishable.

C. Intent to Defraud

One must have the intent to deceive through the use of false representations. An intent to repay or restore will not negate intent to deceive, because this offense is complete when title passes due to deception.

D. Title

False pretenses is concerned with the transfer of title rather than possession. If title has not passed due to a material false representation, the offense of false pretenses has not been committed.

1. Transfer of Possession Due to Fraud
In general, if fraud is used to induce voluntary transfer of possession but not title, possession does not transfer. One is then guilty of larceny by trick rather than embezzlement.

2. Transfer for Special Purposes
Although title to money usually passes with possession, if money is to be used for a specific purpose, possession passes, but title does not pass until the specific purpose is completed. Thus, if fraud is used in an inducement to a transfer of money for special purposes, possession does not transfer either, and one is guilty of larceny by trick instead of false pretenses.

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