Commentary on Judgment No. 26190 of 2023: Contractual Fraud and Instantaneous Performance Contracts

Judgment No. 26190 of May 26, 2023, offers important clarifications on the configurability of the crime of fraud in instantaneous performance contracts. In particular, the Court of Cassation has emphasized that fraud can only be established if the artifices or deceptions are carried out at the time of negotiation and conclusion of the contract, thus excluding criminal relevance for deceptive conduct occurring subsequently.

Legal Context

The case dealt with by the Court concerns a situation where the defendants had leased an apartment, issuing checks without funds as a deposit. However, the contract was subsequently terminated due to impossibility of performance. The Court overturned the conviction, highlighting that no artifices or deceptions had occurred at the time of signing, making subsequent conduct irrelevant.

Contractual fraud - Instantaneous performance contracts - Configurability of the crime - Conditions - Artifices and deceptions committed during the contract performance phase - Irrelevance - Conditions - Factual circumstances. In instantaneous performance contracts, artifices and deceptions carried out at the time of negotiation and conclusion of the legal transaction, which deceive the passive subject, inducing them to give consent that they would not otherwise have given, constitute the crime of fraud. Therefore, in the case of a contract signed without any artifice or deception, deceptive activity committed after signing and during contract performance is criminally irrelevant, unless it leads the victim to undertake further legal action that would not have been taken without that deceptive conduct. (Factual circumstances in which the Court annulled, for lack of the act, the conviction issued against individuals who had leased an apartment owned by the injured parties through the mediation of a real estate agency, issuing two checks without funds as a deposit, only to later withdraw from the contract due to the impossibility of meeting the related costs, with the commitment to return the apartment within three days).

Implications of the Judgment

This judgment has several practical implications. Firstly, it clarifies that fraud, to be established, must manifest at the time of contract conclusion, not in subsequent phases. This principle is fundamental for legal professionals and anyone involved in contract signing, as it clearly defines the limits of criminally relevant behavior.

• Artifices and deceptions must be present at the time of contract conclusion.
• Deceptive conduct occurring after signing does not constitute a crime, unless it induces the victim to take further legal action.
• A careful assessment of contractual circumstances is necessary to determine the existence of the crime.

Conclusions

In conclusion, judgment No. 26190 of 2023 establishes an important precedent regarding contractual fraud, emphasizing the need for a precise analysis of the circumstances surrounding contract conclusion. Legal professionals must pay attention to these aspects to ensure the correct application of norms and effective protection of their rights and interests.