FRAUD. - Under art. 640 of the Italian Penal Code, "whoever, by artifices or deceits, inducing someone into error, procures for himself or for others an unjust profit with harm to another" constitutes the offense of t. and is punished with imprisonment from six months to three years and with a fine from four thousand to eighty thousand lire.
T. falls among the crimes against property by means of fraud, since it resolves itself into a deception by which the victim is induced to perform an act prejudicial to his property and advantageous to others. This consent of the victim, fraudulently obtained, sharply differentiates t. from theft and from misappropriation, offenses that presuppose the dissent of the passive subject. The provision of art. 640 therefore aims to protect, beyond property, also the freedom of consent in transactions involving property.
A considerable quantity of facts can fall within the figure of t., given that the forms the matter in question can assume are extremely varied. Despite this, the best doctrine considers the definition too narrow: not a few frauds that would deserve punishment are in fact excluded. Therefore, the future legislator will have to either broaden the scope of the provision or supplement it with another of a more generic character. Under the current Italian code, for the integration of the objective element of t. it is necessary that: 1) the agent bring about artifices or deceits (an artifice would be a disguising of reality, a deceit an ingenious entanglement of words: by doctrine and jurisprudence, however, the two expressions are understood in a much broader sense, to the point that it is admitted that even a simple lie or silence itself can give rise to t.; according to a recent clarification [Antolisei], however, it must not be one of those petty stratagems that very frequently occur in a given environment and in certain determined relationships, stratagems that the social conscience disapproves of but considers simple improprieties); 2) these artifices or deceits cause a given person, that is, the victim, to fall into error (it being of no relevance that the latter facilitated this through his ignorance or carelessness); 3) this error give rise to an act of patrimonial disposition on the part of the deceived person (such an act may have as its object any element of the patrimony and even the performance of services); 4) this act resolve itself into a harm for the victim or perhaps for another person and into an advantage for another (it must be a harm, that is, a diminution of patrimony, considering as such also one that involves things having a purely sentimental value; to the harm there must correspond a profit for another, of whatever nature, provided it is unjust). The psychological element is constituted by intent, for whose existence it is required that the agent: 1) have voluntarily brought about artifices and deceits with awareness of their fraudulent character; 2) have intended to induce the victim into error; 3) have intended that the latter perform an act of patrimonial disposition; 4) have intended to realize a profit and have had awareness of the injustice of the profit and of the harm deriving to the deceived person. As a consequence of this multiplicity of elements, error of fact finds a wide field of application. From what has been said thus far, it follows that the moment of consummation of t. coincides with the realization of the profit; which has given occasion for numerous criticisms. It should be noted, however, that it is not necessary that the agent obtain precisely the advantage he was promising himself; it suffices that he or a third party realize any patrimonial improvement whatsoever.
According to the most recent orientations, the crime in question is configurable even if the deceived person was tricked while seeking to achieve an unlawful end. This is because the criminalization of t. is dictated by reasons of social interest.
Under the second paragraph of art. 640, t. is aggravated (imprisonment from one to five years and fine from 24,000 to 120,000 lire) if the act is committed to the detriment of the State or of another public body, or under the pretext of having someone exempted from military service, or by engendering in the offended person the fear of an imaginary danger or the erroneous conviction of having to carry out an order of the Authority.
In arts. 641, 642, 643, three hypotheses are contemplated (respectively rubricated as fraudulent insolvency; fraudulent destruction of one's own thing or mutilation of one's own person; circumvention of incapable persons) that doctrine is accustomed to call minor t. Except for fraudulent insolvency, however, the penalties provided are no lighter than those of t.: indeed, for the circumvention of incapable persons, imprisonment from two to six years is prescribed in addition to the fine.