False Pretenses


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False Pretenses:
The obtaining of title to property by false representations made with the intent to defraud the original owner of the property into conveying title to the perpetrator of the fraud.

Material Fact:
A fact that would influence a reasonable person in the process of making a decision.


The crime of "false pretenses" is the obtaining of title to property by false representation with the intent to defraud the victim. Embezzlement as you'll recall, was the conversion of property without actually having title to that property. To commit the crime of false pretenses on the other hand, a defendant must actually obtain title to the property.

It is important to remember that in order to be convicted for false pretenses, a defendant must fraudulently acquire actual title to the property. It is not enough that the victim only gives over possession. If the defendant only obtains possession, but not title, he can be convicted of larceny but not false pretenses.

As with embezzlement, the property that can be the subject of false pretenses is broader than that which can be the subject of larceny so that real and intangible property can be the subject of false pretenses as well a personal property.

In order to be convicted of false pretenses, the defendant must have obtained the property by false representations. However, there are several limitations on this requirement. First, the misrepresentation must pertain to a past or existing fact. Misrepresentations of future facts or false promises cannot be the basis for a false pretense conviction even if the defendant did not intend to keep the promise at the time that he made it. See Chaplin v. United States, 157 F.2d 697 (D.C. Cir. 1946).

Second, the misrepresentation must concern a material fact.

Third, the victim must have relied on the misrepresentation. In other words, the misrepresentation must have caused the victim to transfer the property to the defendant. For example:

Michael has just purchased thirty acres of land in rural Nevada on which he plans to plant wheat and corn. Fredo would like very much to get his hands on Michael’s land. So, he goes to visit Michael one day and pretends to be a geologist. Fredo tells Michael that the land he has bought is a worthless piece of hard scrabble that will never grow anything. Michael believes Fredo and jumps at Fredo’s offer to buy the land from Michael at a price significantly below market value. Later, Michael finds out that the thirty acres he owned were one of the most fertile plots of land in all of Nevada. In this case, Fredo can be convicted of false pretenses. First, he actually obtained title to the land. Second, he did it through false representations that pertained to existing facts. Finally, the misrepresentation certainly pertained to a material fact and Michael relied on it. Therefore, Fredo can be convicted.

The mens rea element of false pretenses has two prongs to it. First, the defendant must know that the representations he is making to the victim is false. If he believes that the representations are true he cannot be convicted of false pretenses even if his belief is unreasonable. Second, the defendant must have intended to defraud the victim at the time he made his representations. In our last example, Fredo clearly has met both prongs of the mens rea requirement. First, he knew that the representations he was making to Michael regarding the land were false, and, second, he made those misrepresentations with the intent of defrauding Michael.



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