GDL - Fraud Flashcards
(12 cards)
An implied representation can arise from (3)
The defendant’s words, conduct and/or pure silence
Pure silence, without an accompanying action
cannot amount to a representation
How does unequal bargaining power impact a representation?
If the defendant is in a better position to express the belief or opinion than the other party, this may also amount to a false representation
Who determines whether a representation is untrue?
the jury
When might overcharging constitute fraud by false representation?
one party takes dishonest advantage by representing as a fair charge that which he knows is dishonestly excessive, particularly if the victim is a ‘trusted friend’
Can you commit fraud by “deceiving a machine”?
Yes, eg committing theft of a credit card and then falsely representing to the machine that you are the cardholder
when will mens rea for the false statement be satisfied?
if D is subjectively aware of the possibility that what they are saying or implying is false
How can you make a true statement, rather than a false one?
Give a caveat - if a person knows the statement they are making might be false, then they should make that clear to the person they are making it to.
Mens rea - intention to make a gain or cause a loss
All that is required is that the defendant intended to make a gain, even if no such gain arose.
How many offences of fraud are there?
1 offence of fraud but there are 3 ways of committing fraud
Who decides whether the defendant occupies a position for the purposes of fraud by abuse of position?
First, the judge will consider whether the particular facts are capable of giving rise to D occupying a position and may give specific directions to the jury on this point.
Then, the jury will decide whether D occupied a position in which they were expected to safeguard or not act against the financial interests of another person.
What would amount to abuse of position?
‘uses incorrectly’ or ‘puts to improper use’ the position held in a manner that is contrary to the expectation that arises because of that position
