Judgment No. 33588 of 2023: Contractual Fraud and the Consummation of the Offense

The recent judgment No. 33588 of July 13, 2023, by the Court of Cassation has provided important clarifications regarding contractual fraud, particularly concerning the moment of consummation of the offense. This topic, of great relevance for those involved in criminal law and asset protection, highlights the need to analyze the specific circumstances of each case to determine when the actual prejudice to the victim occurs.

The Principle of Offense Consummation

The Court emphasizes that, in matters of contractual fraud, the moment the offense is consummated must be assessed based on the peculiarities of the individual agreement. This implies a careful analysis of the methods and timing of the conduct to establish when the damage to the defrauded party occurs and the consequent unjust profit for the perpetrator. Specifically, the judgment clarifies that, in cases where the products subject to negotiation do not exist, the offense is perfected upon the signing of the contract.

Contractual Fraud - Non-existence of the Contract's Subject Matter - Moment of Consummation - Signing of the Contract - Factual Scenario. In matters of contractual fraud, the moment of consummation of the offense must be identified in light of the peculiarities of the individual agreement and the specific contractual intent, considering the methods and timing of the conduct, in order to establish when the actual prejudice to the defrauded party has occurred in correlation with the perpetrator's attainment of unjust profit. Therefore, in cases where the products subject to negotiation do not exist, the offense is perfected upon the signing of the contract, as it is at the moment the passive subject assumes a legally actionable obligation that the perpetrator effectively obtains unjust profit. (Factual scenario in which the defendant, by assuring a significant economic return and the seriousness of the operation, misled the victim, who, by depositing a sum into a foreign bank account indicated to them, believed they were participating in an investment guaranteed by a foreign company, without receiving anything in return, given that the products were inherently unsuitable "ab origine" to generate returns).

Practical Implications of the Judgment

This decision has significant implications for the fight against contractual fraud. Legal professionals must pay particular attention to the contract signing phase, as it is at that moment that the commission of the offense can be ascertained. Some key points to consider are:

• The need to verify the existence and validity of the contract's subject matter.
• The evaluation of promises made by the perpetrator and their correspondence with reality.
• The relevance of documentation and communication between the parties to demonstrate fraudulent intent.

Conclusions

In summary, judgment No. 33588 of 2023 represents an important step in defining contractual fraud, clarifying the moment of consummation of the offense and the need for a thorough analysis of the contracts in question. It is crucial for victims of contractual fraud to understand their rights and how to protect themselves, and for legal professionals to stay updated on such jurisprudential developments.