FRODE

**FRAUD**

**I. Concept**

The word *f.* (from *fraus*, deceit, cunning, malice) generally signifies any artifice or trick capable of inducing others to error.

Primitive Roman law, concerned only with the external act, used this term simply to indicate harm, wrong, or damage inflicted on another, regardless of intent to harm (cf. Law of the Twelve Tables, VIII, 21). Later, attention began to be paid also to the psychological element, so that the word *f.* came to denote any maneuver employed to deceive others for one’s own advantage. Thus, in laws, decrees, glosses, and legal texts, *f.* and deceit (*dolus*, q.v.) became synonymous, with the sole difference that *dolus* is a general term meaning deception carried out either in words or deeds, while *f.* is a specific term for deception through actions (Sum. Theol., 2a-2ae, q. 55, a. 5). In civil matters, however, deceit consists in deceiving those with whom one contracts, while *f.* consists in violating the law by deceiving magistrates and third parties through the use of artifices (Italian Civil Code, arts. 1439, 1344). Ancient jurists distinguished between permissible *f.* and culpable *f.* The former, called *dolus bonus* or defensive *f.*, consists in using skill and cunning against violence or injustice. It is a case of a kind of legitimate defense and of the so-called *pia fraus*, to which ecclesiastical entities resorted when deprived of legal personality by anticlerical laws prior to the Lateran Concordat. The latter, *dolus malus* or offensive and unjust *f.*, consists in resorting to dishonest means to deceive others for one’s own or a third party’s profit. This is *f.* in the proper sense.

**II. Fraud in Contracts**

By natural law, *f.* does not affect contracts unless it determines error; only then does it at least generate an obligation to compensate for damages. If, therefore, the error determined by the *f.* of one of the parties is substantial, the contract is invalid; if it is accidental and antecedent, the contract, provided it is dissoluble, may be rescinded by judicial sentence at the instance of the aggrieved party; if the accidental and antecedent error was determined by the *f.* of a third party unbeknownst to both contracting parties, the contract, since no injury was inflicted by one party against the other, is not rescindable. In any case, the author of the *f.* is bound to compensate the damage unjustly inflicted on one of the contracting parties. This follows from the principle already enunciated in Gregory IX’s Decretals: *Fraus et dolus alicui patrocinari non debent* (16, X, 1, 3).

The Italian Civil Code expressly declares null certain acts and contracts of special importance determined by *f.*, such as voting in elections (can. 169), renunciation of ecclesiastical offices (can. 185), admission to novitiate (can. 542, §1), and religious profession (can. 572); against *f.*, the following actions or exceptions are granted: a) rescission against rescindable acts and contracts (can. 103, §2, 168, §1); b) nullity against null acts and contracts (can. 169, 185, 542, 572, 1679); c) revocation against illegitimate alienations of ecclesiastical goods (can. 1534).

**III. Fraud in Merchandise**

This is the cunning by which a merchant, violating the rights of buyers, supplies them with goods of lesser quantity through false weights, or of inferior quality, or pays them with counterfeit money. Understood in this way, *f.* does not differ from theft (*furto*, q.v.) in its proper sense and in this special form is illicit because it combines the character of theft and of lying, from which it is difficult to guard oneself, since it is the weapon used by the cunning against the simple in the most common and necessary relations of social life.

**IV. Fraud in War**

This consists in resorting to stratagems or false enterprises necessary or useful for victory. In a just war, such means are permissible provided they do not conflict with natural law, international agreements, or the law of nations. Thus, everything that is foreseeable is considered permissible, such as feigned retreat, sham attack, use of false signals, discerning the enemy’s plans, etc.; betrayals and violations of agreements in general, however, are not permitted, nor are unforeseeable acts such as bombarding declared open cities, killing the innocent, extracting secrets by violent and unjust means, or poisoning water supplies, etc.

**V. Fraud Against the Law**

In addition to *f.* against persons and against justice, moralists, like ancient jurists and legal scholars of various modern nations, consider the case of *f.* against the law. This occurs when actions are performed with the precise aim either of evading the burden of the law or at least of placing oneself in a condition in which it cannot be observed. Thus, for example, one is said to act *in fraudem legis* who, having committed reserved sins in his diocese, travels 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 when it is in force, performs without cause some work that by itself excuses from fasting. In the first case there is nothing wrong because the law obliges only as long as one remains subject to it, and on the other hand it does not prohibit escaping its dominion (can. 900, §3). In the second case, however, a true transgression is committed because one explicitly intends to violate the law while remaining subject to II. It is one thing to act in order to cease being under the law, and another to deliberately place oneself in the impossibility of observing II.
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