Fraud

FRAUD. - I. NOTION. - The word fraud (from fraus, deceit, cunning, malice) generally means any artifice or trick capable of leading others into error.

Early Roman law, concerned only with the external fact, used this term to indicate simply a prejudice, a wrong or a damage inflicted on others, prescinding from the intention to harm (cf. Law of the Twelve Tables, VIII, 21). Later the psychological element also began to be taken into account, so that the word fraud came to denote every maneuver employed to deceive others for one's own advantage. And so in the laws, decrees, glosses and texts of law, fraud and dolus (v.) became synonyms, with the sole difference that dolus is a generic term and means the deception carried out either in words or in deeds, while fraud is a specific term indicating deception by means of actions (Summa Theol., 2ᵃ-2ᵃ, q. 55, a. 5). In civil matters, on the other hand, dolus consists in deceiving the persons with whom one contracts, fraud in violating the laws, deceiving the magistrates and third persons by the form of the acts (Italian Civil Code, arts. 1439, 1344). The ancient jurisconsults distinguished accusable fraud and bad fraud. The first, called dolus bonus, or defensive fraud, consists in using dexterity and skill against violence or injustice. This is the case of a kind of legitimate defense and of the so-called pious frauds, to which ecclesiastical bodies, deprived of juridical personality by the eversive laws, resorted before the Lateran Concordat. The second, dolus malus, or offensive and unjust fraud, consists in resorting to means contrary to honesty in order to deceive others for one's own profit or that of third parties. This is fraud properly so called.

By natural law fraud does not affect contracts except insofar as it brings about error; only then does it at least generate the obligation to repair the damage. If therefore the error, brought about by the fraud of one of the two parties, is substantial, the contract is invalid; if it is accidental and antecedent, the contract, provided it is dissoluble, can be rescinded, by sentence of a judge, at the request of the injured party; if the accidental and antecedent error was brought about by the fraud of a person outside the contract, without the knowledge of both contracting parties, the contract, since no injury of one party against the other has occurred, is not rescindable. In every case the obligation to repair the damage falls upon the author of the fraud, to that one of the contracting parties to whom it was unjustly caused. And this by the principle already enunciated in the Decretals of Gregory IX: Fraus et dolus alicui patrocinari non debent (16, X, I, 3).

The CIC expressly declares null certain acts and contracts of special importance determined by fraud, such as the vote in elections (can. 169), the resignation of ecclesiastical offices (can. 185), admission to the novitiate (can. 542, 1), religious profession (can. 572); and against fraud it admits an action or exception of: a) rescission against rescindable acts and contracts (cann. 103 § 2, 1684); b) nullity against null acts and contracts (cann. 169, 185, 542, 572, 1679); c) revocation against illegitimate alienations of ecclesiastical goods (can. 1534).

It is the cunning of which the merchant renders himself guilty who harms the rights of buyers by supplying them with goods in smaller quantity by means of false weights, or of inferior quality, or by repaying them with false coin. Understood in this way, fraud is not distinguished from theft (v.) properly so called, and in this special form it is illicit because it bears the character of theft and of lying together, from which one can hardly guard oneself, since it is the weapon used by the cunning against the simple in the most common and necessary relations of social life.

It is the resort to stratagems or to false enterprises necessary or useful for victory. In a just war it is lawful to resort to such means, provided they conflict neither with natural law, nor with international pacts, nor with the law of nations. It is therefore held permissible to do everything that is foreseeable, such as simulated flight, feigned aggression, the use of false signals, discovering the adversary's plans, etc.; on the other hand, betrayals, violations of pacts and in general frauds that are in no way foreseeable are not permitted, such as bombing cities declared open, killing the innocent, seizing secrets by violent and unjust means, poisoning drinking water, etc.

Besides frauds against persons and against justice, moralists, like the ancient jurists and the legists of various modern nations, also consider the case of fraud against the law. This occurs when actions are performed with the precise purpose either of withdrawing from the dominion of the law or at least of placing oneself in the condition of being unable to observe it. Thus, for example, he is said to act "in fraudem legis" who, having committed sins reserved in his diocese, goes elsewhere to escape the law of reservation; or who, in order to be able to declare himself dispensed from the law of fasting on a day on which it is in force, performs without reason a work that of itself suffices to cause exemption from fasting. In the first case there is nothing wrong, because the law obliges as long as one remains subject to it, and on the other hand it does not prohibit withdrawing from its dominion (can. 900, 3). In the second case, on the other hand, a true transgression is committed, because one explicitly intends to violate the law while remaining subject to it. It is one thing to act in order to cease being under the law and another to place oneself deliberately in the impossibility of observing it.

Luigi Fini