The notions of breach of trust and fraud are very often confused by the vast majority of the public. However, these two concepts are nevertheless different and are to be distinguished, particularly in legal matters, as explained to us by Antoine Beraud, a renowned lawyer of the Marseilles Bar Association for 39 years. Let us discover in detail what differentiates fraud from breach of trust.
What is a swindle?
According to the Penal Code (paragraph 1 of article 313-1), fraud is defined as “the fact, either by the use of a false name or a false quality, or by the abuse of a true quality, or by the use of fraudulent maneuvers, to deceive a natural or legal person and thus determine it, to its prejudice or to the prejudice of a third party, to hand over funds, securities or any property whatsoever, to provide a service or to consent to an act operating obligation or discharge”.
In fact, fraud represents the implementation and use of fraudulent devices in order to obtain something from someone. This can be the case in particular for a sum of money, a good, a right… It should be noted that the distinctive feature of fraud, unlike theft, is that the victim hands over the good concerned of his own free will, the action takes place with his full will.
In order to achieve his ends, the swindler uses various tricks which may concern his name (using a false identity), his quality (pretending to have a function which is not his own), or by presenting false documents.
Characteristics of a breach of trust
The Penal Code (Article 314-1) defines breach of trust as “the act by a person of misappropriating, to the prejudice of others, funds, securities or property that have been handed over to him or her and which he or she has accepted on condition that he or she returns them, represents them or makes specific use of them”.
We are here in the case where the disposition and use of property differs from what was previously agreed to in a contract.
What is the difference between fraud and breach of trust?
In view of the elements cited above to define fraud and breach of confidence, it is clear that, on the one hand, fraud concerns a fraudulent action or transaction from the outset, while on the other hand, breach of confidence is characterised by a subsequent misappropriation, i.e. once the property is in the perpetrator’s possession.
It should be noted that both are subject to heavy penalties. A person found guilty of breach of trust may incur a sentence of up to 3 years’ imprisonment and a fine of up to 375,000 euros. In case of aggravating circumstances, the fine may be up to 750,000 euros and the imprisonment sentence up to 7 years.
As regards fraud, the person is liable to 5 years’ imprisonment and a fine of up to 375,000 euros. In case of aggravating circumstances, the amount can be up to 750,000 euros and the prison sentence up to 7 years.
