While evading payment for an invoice when the service has been rendered may constitute the subject of a civil dispute (default) and give rise to a claim for payment, it may also constitute a criminal offense commonly referred to as fraud.
Pursuant to Article 286(1) of the Penal Code, whoever, in order to gain a material profit, leads another person to a disadvantageous disposal of his own or another person’s property by deceiving that person or by exploiting a mistake or an inability to grasp the intended action, shall be subject to the penalty of deprivation of liberty for a term of between 6 months and 8 years.
Failure to pay an invoice, therefore, constitutes an offense when the following conditions are simultaneously met:
- The perpetrator, i.e., in the above case it will be e.g., the recipient of the service, the buyer, etc., must act with the aim of achieving a pecuniary benefit. This means that this goal must already exist in the perpetrator’s mind at the time of the cooperation or conclusion of the contract. Someone who wants to deceive a business partner intends to enrich themselves at someone else’s expense from the very beginning. What is important – the material benefit may also accrue to an entity other than the perpetrator, i.e., he/she may gain benefit for someone else, e.g., for the company on behalf of which they act or for another entity. A financial benefit has many forms. It may be: obtaining a service for which the perpetrator had not planned to pay from the beginning, or a thing or in any other that leads to enrichment of some entity.
- The offender must bring another person to a disadvantageous disposition of their own or another person’s property. Undoubtedly, e.g., sending a concert ticket to someone hoping for a payment, which is not made, constitutes an unfavorable disposal of property. In this case, the wronged party voluntarily makes a disposal in such a way, that he decides to send a given product, and thus transfers its ownership to another person. Another example of disposal of property is the provision of a service for which the victim hopes to receive payment. In such a case the victim allocates certain funds, time, pays employees and finally issues an invoice hoping to be paid. If it was not for the lack of awareness of the real intentions of the perpetrator, the service would not have been performed.
- The perpetrator shall mislead the person making the disposal of property, or exploits the error or inability to comprehend the action. This means that the person making the property disposal, if not for being misled, would not perform a specific action. As an example, we can mention a situation, where an offender using a counterfeited identity card comes to a bank and on the basis of the counterfeited identity document asks the cashier to withdraw cash from the account of a person whose data is contained in the document. The cashier, remaining unaware that the presented identity card is a forgery and the person claiming to be the account holder is in fact not, acts in accordance with the perpetrator’s instructions and gives him the demanded money. If the cashier was aware that the presented document is not genuine – he would not withdraw the money.
Not every failure to pay an invoice will therefore constitute a criminal offense. The only difference between the crime of fraud and simple non-payment, which falls under the jurisdiction of the civil courts, is whether, at the time of entering into the agreement, on the basis of which the invoice is later issued, the perpetrator fulfilled all the elements of the offense under Article 286 § 1 of the Criminal Code. What is important – in criminal proceedings the culpability of the perpetrator must be proven, i.e., it must be proved that already at the moment of concluding the agreement the perpetrator had no intention to pay. Moreover, the perpetrator must undertake a specific activity and cannot remain passive.