The fraud according to § 263 StGB

Furthermore, it is important to distinguish between real statements of fact and merely subjective expressions of opinion or value judgments. An own statement about a thing is e.g. "I like your ring very much". Here the opposite still enough clearance is made available, in order to make itself the picture of the ring and to form its own opinion. Do you agree or disagree? 

A statement in a jewelry store, for example, "This white gold ring is very beautiful, due to its set diamond with, high resale value." could well be assumed to be a deception if the facts are not true. The statement about the ring includes not only the subjective opinion of the seller, but also statements about business relevant facts and authenticity. The boundaries between expressions of opinion or value judgments and facts are fluid and thus individual control is always required.

Advertising statements are also unsuitable for the assumption of fraud. It is not uncommon for an advertising statement to be deliberately and purposefully exaggerated with praise. In contrast to a fact, these statements are also called "advertising statements of opinion". The borderline to fraud is also fluid here. A possible fraud begins when a thing is deliberately promised certain properties that do not exist. It remains important here to consider whether and to what extent the environment will regard a statement as a "promise" or as a purely fact-neutral expression.

As already mentioned above, it is important to mention deception by means of explicit words that are expressed verbally and implied deception. The former includes, among other things, deception through words and writing (not only from person to person, but also via telephone, e-mail, SMS, etc.), but also non-verbal expressions such as signs or gestures. 

On the other hand, the person who does not explicitly express the untruth, but who declares it according to the general understanding (the traffic perception), deceives implicitly. The third and final type of deception is deception by omission. The prerequisite for this is the guarantor's duty, which a person must have and must inform the other person, for example, about certain things. He must consciously omit this. The clarification itself must have been reasonable and possible for the offender. The punishment of the perpetrator is made possible by § 13 of the StGB.

It states:

A person who omits to avert a success that is part of the elements of a criminal act shall be liable to punishment under that act only if he is legally responsible for the fact that the success does not occur and if the omission corresponds to the realization of the legal element of the offense by an act.

The consequence of the guarantor's failure to disclose must therefore be a reduction in the victim's assets, which occurs because the victim did not know better, but could have known better through the perpetrator.

In order for the perpetrator to remain liable to prosecution for fraud, the intention to enrich must be unlawful. The intention to enrich or the pecuniary advantage is unlawful if the perpetrator does not have his own legally well-founded and due, plea-free claim to it. In assessing this, it is solely a matter of substantive law, i.e. civil, public or tax law. It does not matter what kind of claim it is. 

If the intention to enrich should not be unlawful due to the claim that is due and without defense, criminal liability for fraud does not apply. If, for example, a contract is null and void, criminal liability for fraud continues to exist because a claim never ex tunc existed. In this respect, it is only decisive whether the final objective was unlawful and, in this respect, no longer the path of realization.

However, it could be problematic if the perpetrator believes that he has a claim to the enrichment, but in fact this does not exist. In this case, the perpetrator is subject to an error of fact pursuant to Section 16 of the Criminal Code.

A person who, when committing the act, is unaware of a circumstance that is part of the statutory offense does not act intentionally. Criminal liability for negligent commission remains unaffected.

In this case, the perpetrator wants to enforce a claim that is in reality illegal, but lawful according to his or her ideas. However, the perpetrator does not commit an attempt to defraud. Criminal liability is therefore not applicable when considering the subjective aspect of the perpetrator's conception. The perpetrator must have a clear idea about the claim and not only vague ideas. For this purpose, one can make use of the fact that the perpetrator subjectively believes that he can also enforce his claim before a civil court and that this claim would be recognized by the courts.