Flaw theory

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The so-called flaw theory in criminal law deals with the question of whether, when applying Section 263 of the Criminal Code ( fraud ), financial loss is to be assumed if the perpetrator sells his victim an object that does not belong to him and deceives him as to his ownership status, so that this acquires property from unauthorized persons (§§ 932 ff. BGB) in accordance with the regulations on acquisition in good faith .

In a decision (RGSt 73, 61 et seq.), The Reichsgericht took the view that property damage had occurred because the object acquired by the unauthorized person had a moral flaw (hence flaw theory ). It was largely based on the standard of "healthy people's feeling", which forbids a purely economic approach (RGSt 73, 63).

This line of argument is predominantly rejected today in case law (BGHSt 3, 370, 372) and teaching. However, in some cases pecuniary damage is assumed in the form of endangering damage if the purchaser is threatened with litigation about the property.

With the decision of the BGH - 3 StR 115/11 - it is made clear that a guilty verdict for fraud can no longer be based on a damage-equivalent financial risk due to suffering a litigation risk, unless a quantifiable loss of assets as a result of this litigation risk can be determined according to economically comprehensible standards would.