[quote name='javeryh'][quote name='Duo_Maxwell']But by a legal definition both your reasons are wrong. Like it or not the $45 the store is losing is considered a damage. And the material misrepresentation IS the receipt and the game. It's not an issue of who bought the $5 game or the $50 game, but an issue of the reciept does not belong to the purchase involving the $5 game therefore you are indeed misrepresenting the material in this case. [/quote]
I'm not sure I understand what you are trying to say. I'd be curious to hear your legal definition of fraud... Also, no one is losing $45 - the only thing lost here - and it's a stretch - is the profit from selling one copy of Ace Combat 5.[/quote]
One is liable for fraud when using a false statement or misrepresentation of material importance to induce reliance from another and harm or damages result from the reliance. Also, there are damages, while it's possible the store could indeed sell the game again there's no gaurentee they'd be able to sell that game at all let alone for $50. The fact is Walmart is giving him $45 dollars for something he contractually purchased for $5 (yes, a purchase is technically a contract between buyer & seller for an item at that price), not only are they giving him $45 but under false pretenses. Now say Walmart doesn't move that copy of AC 5 til the next time it's on clearance (not uncommon for a big retail store) for $25, Walmart has technically lost $20. It's no doubt picky, but you wanted legal so I'm giving you a straightfoward legal argument. Yet, legality doesn't always factor in future maybes, so it is indeed a grey area. But the fact remains he's taking $45 in profit from Walmart by misrepresenting that purchase, he's taking it right from their cash drawer, and even if they sell it later like you suggest they are at least taking a temporary loss.
[quote name='javeryh'][quote name='Duo_Maxwell']Also you ending examples are totally different because of the same reason for the misrepresentation. Assuming that someone's wife or brother gave them premission to do return it, the fraud has nothing to do with his friend giving him premission to use that receipt. A case for fraud would be based upon the fact that the receipt he gave you isn't the correct one and is being misused and misrepresented. An argument for fraud could indeed be made, but considering it's only $45 the real argument is whether or not the case for fraud would be made.[/quote]
Permission doesn't matter at all. If he gave the "extra $45" to his friend who gave him the reciept would the "fraud" (by your definition) magically disappear? At that point there is no harm to anyone because the store got it's game back and the friend got his $50 - but wouldn't a crime have already occurred prior to handing over the $45? See - that just doesn't make any sense.[/quote]
Permission doesn't matter in the case of fraud, No you're right, and I believe I mentioned that. However, it's certainly illegal to return something someone else purchased without their permission be it a spouse, family member, etc. In fact it's theft, that's whay I wanted to clarify it.
You misunderstood what I said, I'll give a definition of misrepresentation to clear things up though. It's simply an assertion that isn't in line iwth the truth. There are really two flavors though, innocent and fraudulent. In this case seeing how it's being done with the knowledge that it's false, it would of the fraudulent variety. Knowingly using a reciept that isn't from his purchase (thus making it a false one) is techinically fraudulent misrepresentation.
But to answer your question, no any and all claims of fraud wouldn't disappear, but actually things would only change a little. Why? Well because his friend is at even more fault for taking a profit in the deal. Your example makes sense, you just assumed that it didnt because you beleived the answer was yes. It makes perfect sense that'd they'd both technically be liable for the fraud now on the basis that he is now the middle man in the whole scheme and his friend is the one actually making $45 from Walmart. Our man only gets his $5 dollars back and all may seem right save for the fact that he knowingly misrepresented fact from a purchase to gain $45, the only that really changed is he gave the $45 to someone, who then knowingly accepted it. Nothing really changed except the $45 ended up in someone else's hand. Let's take the example to me giving you a bat (totally hypothetical btw we all know we're good folk here), knowing you're using to it rob somebody. You hit them, rob them, take their money, etc. Only now you come back and give me most of the money, well now I'm twice as liable not only for providing you with the tool for your misdeed, bu also from profitting from it and you're still liable for robbing someone. Here someone gave him a tool for misuse in the framework of fraud, no matter what happens afterwards the fraud is still there.
[quote name='javeryh'][quote name='Duo_Maxwell']because there is no intent to misrepresent and defraud[/quote]
In a fraud based analysis you have to prove each of the elements to successfully make your case - intent isn't the only element and the argument fails for other reasons...
OK I'm done discussing this...[/quote]
Intent isn't obviously the only thing you look at, but is quite major. If a judge looked at example like you provided he/she would probably trhow it out citing there's no intent a major component of any fraud case. I mean theoretically the elements behind fraud are still there yet without intent, fraud really doesn't exist in the sense that you liable for it. And yes, the example you mentioned fails for one other big reason. There is no room for damage. If you return one copy to EB then you get the $50 back you purchased it with there and you keep what you bought for $5 from Walmart. Or you return both. Either way, even if you mix up the games upon returning them, you aren't gaining anything and the stores aren't losing anything. Where is this case here, Wlamrt would potentially be losing $45 and he'd be making $50 from a falsity.
Alright, so if you're done so am I, just figured I'd throw out my counter point. Sorry about this but I'm a sucker for a legal argument...must be hereditary or something I dunno. Anyways I wish you the best.
