Pecuniary Advantage By Deception

tiktock7aclock

I have been reading case law to better familiarise myself with this legal concept, but there is a grey area I have considered in my mind which stills remains unanswered.

If the main elements of this fraud are to be met as laid down by the statute books, is it fraud hypothetically speaking if a person claims a drivers licence on an application for monetary gain, but at a time following the signing of say a local food delivery contract, the licence is revoked? Would that still constitute Fraud through deception?

Peregrinus

Yes, I think it would. Obviously the contractor's interest is in getting the food delivered, and if the driver delivers it while not having a current licence the food is still getting delivered. But the regular delivery of the food is liable to be interrupted at any time, if the driver's unlicensed status comes to light, and this imperils the contractor's business. So he wouldn't award the delivery contract to the driver if he knew the driver was unlicensed. So if you form the contract on the basis that you have a licence and in fact you don't, you are deceiving the contractor in order to get a valuable appointment which you wouldn't get if truth were known.

tiktock7aclock

Peregrinus wrote: »

Yes, I think it would. Obviously the contractor's interest is in getting the food delivered, and if the driver delivers it while not having a current licence the food is still getting delivered. But the regular delivery of the food is liable to be interrupted at any time, if the driver's unlicensed status comes to light, and this imperils the contractor's business. So he wouldn't award the delivery contract to the driver if he knew the driver was unlicensed. So if you form the contract on the basis that you have a licence and in fact you don't, you are deceiving the contractor in order to get a valuable appointment which you wouldn't get if truth were known.

But what if the contract was signed when the licence was still in legal standing? How could that be a deliberate misrepresentation of fact if he stated "yes, I have a drivers licence" only to have it revoked 2 days later for reckless driving? It's an extreme example, but it is a grey area I have considered in my mind. Technically, that situation is entirely factual, and thus stands as a defence against conspiracy/deception through Fraud. There isn't really an element of deception here. I think.

Peregrinus

tiktock7aclock wrote: »

But what if the contract was signed when the licence was still in legal standing? How could that be a deliberate misrepresentation of fact if he stated "yes, I have a drivers licence" only to have it revoked 2 days later for reckless driving? It's an extreme example, but it is a grey area I have considered in my mind. Technically, that situation is entirely factual, and thus stands as a defence against conspiracy/deception through Fraud. There isn't really an element of deception here. I think.

Mmm. On closer reading of your original post I see you specified revocation of the licence after formation of the contract. Sorry.

That does change things. If it’s not an express, then it’s almost certainly an implied, term of the contract that the driver will continue to have a current licence of whatever class is required, and if he fails to do so he’s in breach of contract. But obviously that doesn’t necessarily mean he is committing the offence of obtaining p.a. by d. (He is obviously committing the offence of driving while unlicensed.)

Suppose the contract stipulates that it terminates if the driver ceases to be licensed. The driver says nothing, continues to deliver the food and to accept payment. Is “saying nothing” in this circumstance a sufficient deception to constitute the offence?

My guess - and it’s no more than that - is not. He gets paid for delivering the food, and he does in fact deliver the food; no deception there. I don’t think he is at risk of prosecution for obtaining pecuniary advantage by deception until he gets a renewal of the contract.

tiktock7aclock

Peregrinus wrote: »

Mmm. On closer reading of your original post I see you specified revocation of the licence after formation of the contract. Sorry.

That does change things. If it’s not an express, then it’s almost certainly an implied, term of the contract that the driver will continue to have a current licence of whatever class is required, and if he fails to do so he’s in breach of contract. But obviously that doesn’t necessarily mean he is committing the offence of obtaining p.a. by d. (He is obviously committing the offence of driving while unlicensed.)

Suppose the contract stipulates that it terminates if the driver ceases to be licensed. The driver says nothing, continues to deliver the food and to accept payment. Is “saying nothing” in this circumstance a sufficient deception to constitute the offence?

My guess - and it’s no more than that - is not. He gets paid for delivering the food, and he does in fact deliver the food; no deception there. I don’t think he is at risk of prosecution for obtaining pecuniary advantage by deception until he gets a renewal of the contract.

Makes sense I guess. Thanks for your contribution:)

Victor

What are the tests for fraud?

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I take it that you mean a driver's licence not a road haulage licence and that the driver is operating as a contractor, not an employee.

I wouldn't see it as fraud. Assuming he stops driving when he is banned, the food company would just stop paying him. If he ignored the ban and kept driving and delivering, the food company has not been defrauded.

I imagine it would potentially be a matter of contract frustrated by operation of law if the food company insisted on personal service by the contractor*. However, (a) the driver might be able to use another driver to deliver the goods and (b) the food company would be able to sue for damages.


* If for example, the food company had given the driver special training on food handling or a security clearance was provided.

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Now, it might be seen as being close to fraud if the driver knew he was about to be banned and it was merely a matter of formality, e.g. in the case of the mutual recognition of driving bans between countries.

Similarly, if the driver claimed to have special training on food handling and suitable vehicles, but didn't and the food company suffered losses and the quality chain was broken, then that might be fraudulent.

odds_on

tiktock7aclock wrote: »

But what if the contract was signed when the licence was still in legal standing? How could that be a deliberate misrepresentation of fact if he stated "yes, I have a drivers licence" only to have it revoked 2 days later for reckless driving? It's an extreme example, but it is a grey area I have considered in my mind. Technically, that situation is entirely factual, and thus stands as a defence against conspiracy/deception through Fraud. There isn't really an element of deception here. I think.

If he had it revoked two days later, surely he would have had a strong idea that this was likely to happen, as there must have been a court case re the reckless driving and therefore would be misleading?

Victor

odds_on wrote: »

If he had it revoked two days later, surely he would have had a strong idea that this was likely to happen, as there must have been a court case re the reckless driving and therefore would be misleading?

What if his solicitor told him that the most he would get is a fine?

Or he went out that night and got caught drink driving and ended up in court, pled guilty and was banned?

tiktock7aclock

odds_on wrote: »

If he had it revoked two days later, surely he would have had a strong idea that this was likely to happen, as there must have been a court case re the reckless driving and therefore would be misleading?

This has to be considered, as a notification of revocation intent must be served by a judge so the defendant can represent him/herself in due course. Where it gets dodgy, is say the driver moves address on a regular basis through rent living. If the order was served at the last known address and not the current unregistered address, he/she could simply claim that they never recieved the order, thus invalidating the reciept of the affidavit.