Not a minute too soon, two cases have come down from the Appeals Court that restate what I had thought was a well-understood law school basic, namely that intent to defraud by false pretenses must be proven as of the time of the reliance-inducing promise complained of, not at some later point in time, and certainly not by mere non-performance.

The first case, Com. v. Long, involved a home improvement contractor who accepted a deposit for work, did a few days’ worth of work, and then abandoned the job.  The defendant was convicted of larceny over $250.00 by false pretenses, a felony, but the Appeals Court reversed, holding that the government failed to prove that – at the time the defendant promised to do the work – he never intended to do so.  That is, that he made the promise with the specific intent to defraud the homeowner.  “Where . . . a specific intent is an element of the crime charged, that intent must be proved. . . .”  The court then stated what should have been obvious to the government from the beginning, to wit: “nonperformance of a contract . . . is not a crime . . . [and] [n]ot every private fraud warrants criminal prosecution.”

The second case, Com. v. Trafton, involved a defendant who was given a trailer and sander in exchange for his promise to pay $1,400.00 for them at a later date.  The agreement was that upon payment, the defendant would also be given a title and a bill of sale for the items.  The defendant ultimately did not make the payment and was convicted of larceny by false pretenses.  Even in the absence of the kind of partial performance shown in Long, the Appeals Court made short work of the government’s arguments, holding that mere evidence that the defendant didn’t end up making the payment did not prove specific intent to defraud at the time he made the promise: “[a] mere failure to fulfil a promise does not constitute a misrepresentation . . . [t]he seller’s remedy is civil, not criminal.”

Hopefully, the government takes direction from the Appeals Court in this realm, and confines its future prosecutions to cases that go beyond mere breach of contract.

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