Breach of trust

The breach of trust is, in France, “the fact for a person of diverting money or movable goods, which were entrusted to him by their owner with an aim of restoring them to him or of making later on a given use of it”. The article of the Penal code French punishes this offense of a sorrow which can go up to 375.000 € of fine and 3 years of prison.

This offense is consisted three components: a diversion, a damage and an intention, and suppose as a preliminary the meeting of two conditions.

Two conditions

Agreement of will

One needs an agreement of will, a Contrat, concluded between the owner and the agent, by which this last must restore the entrusted thing to him or make a given use of it. This contract appears in the list given by the code or not. The list is not exhaustive. For example returns within this framework a commitment to sell with handing-over of an amount of money by the future purchaser under the condition precedent that the sale will be done, but the salesman keeps the sum and refuses to sell.

Unquestionable, voluntary and precarious handing-over

One needs an unquestionable, voluntary and precarious handing-over of the thing by the owner, an involuntary handing-over constituting a flight and not a breach of trust. For example a sale contract cannot be a contract concerned with this offense since the handing-over of the thing is final, the sale being a translative contract of property. What is it sale with clause of reserve of property? There is no jurisprudential solution but it would seem that the spirit of this clause is to paralyze the translative effect of property, therefore one could consider it here.

Components

If these prerequisites are filled, it is necessary to check the presence of the three components:

The diversion

It can take 4 different forms:

the improper use insincerely of the entrusted thing
intentional in the restitution
the refusal to restore, inevitably intentional delay
impossibility of restoring

The damage

Jurisprudence considers that it is " carried out since the owner is private of his rights on the chose". (crim 15 5 68) It is a presumption of damage which reverses the burden of proof

The intention

It is an intentional infringement. A general Dol is required, i.e. the conscience of the precariousness of detention and the obligation while rising from restitution, and the will to contradict with the rights of the owner on his thing. Jurisprudence considers that " the fraudulent intention can result from the circumstances retained by the judge, the intentional element being necessarily included in the observation of détournement" (Case. Crim., 1878).

See too

Businesses of breach of trust

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