1

In which of the following scenarios has a crime been committed by Jane?

  1. John puts a chair on the street curb at his house. Jane drives by, sees the chair, and loads it in her car and drives away.

  2. John puts a chair on the street curb at his house with a sign saying "$5". Jane drives by, sees the chair, and loads it in her car and leaves no money.

  3. John bakes cookies, puts out a chair at the street curb at his house, sets the cookies on the chair with a sign saying "Cookies $5/dozen". Jane drives by, sees the cookies, take a dozen and leaves no money.

Assume US, thought I'd be interested to hear of differences around the world.

Edit:
Jane sees the signs and knows that payment is expected (in 2 & 3).
Jane intends to keep the chair permanently/indefinitely.
Jane intends to eat the cookies.

4
  • 1
    There's not enough information to answer this from an E&W perspective. Such as: What is Jane's mens rea? Does she intend to permanently deprive John of these items? etc
    – Rock Ape
    Dec 22 '20 at 6:33
  • 1
    @RickApe in most jurisdictions the active taking of something belonging to somebody else creates a rebuttable presumption of mens rea
    – Dale M
    Dec 22 '20 at 7:19
  • 2
    I'm just seeking clarity from the OP. In E&W "dishonesty" is the first ingredient of theft. For example: does she take it because she believes she has a right in law to do so; because she believes she has the owner's consent; because she believes it's causing an obstruction to the highway (or any other danger) etc. The final ingredient is the "intention to permanently deprive" which is made not clear in the OP beyond Jane drives away - then what does she do? (I write police exam questions which require precise details and enough information to negate making assumptions about unknown facts.)
    – Rock Ape
    Dec 22 '20 at 7:47
  • @RickApe: Thanks for your comments. I find these kind of legal details interesting. I've added to the question in hopes of addressing the issues you raise. Dec 22 '20 at 16:02
4

Generally: Theft. All Three times. With only one exception.

  1. I assume that John declared "Sperrmüll" and put it out for collection or was put into the black bin. The chair thus was properly intended to be given to the trash collection service. The declared item was put out for collection or chucked into the bin. Till the moment the waste truck arrives, the item is property of John, then he relinquishes ownership via § 959 BGB Abandonment of Ownership the moment the declared item is pricked up by the intended recipient, which has (prospect) ownership interest1. For example, waste disposal services could burn a wood chair for its thermic value, a metal one would be scrapped etc. Jane isn't allowed to take it, so she steals from them2 under § 242 StGB Theft3.

  2. The chair was John's property for sale. Jane took it without the required payment to make it a sale contract and the intent to deprive him of chair and money. So she steals it under § 242 StGB Theft.

  3. It's exactly the same case as 2, but replace "chair" with "cookies".


1 - if John doesn't own the item, he can't relinquish the item and so technically the waste disposal service does commit theft, yet in declaring the item for collection, John also declared he would own all items or have the allowance to put them for collection or pay for any and all damages that result from him disposing of the items.

2 - the collective of both John and the Waste Disposal Service - technically both can sue jointly and separately

3 - As an extra caveat: John also needs to make sure that his Sperrmüll doesn't create dangers or harms anyone, as he is liable for damages from it till it is collected. Even if Jane would throw around the waste and create the danger. The best he might manage is to get part of the fines back from Jane for contributing to the danger, but he is technically required to prevent or remove the danger.

7
  • I find it exceedingly unlikely that the trash collection service would pursue claims on that chair, however... even if they knew a chair had been stolen from them in the first place, which is also exceedingly unlikely. Dec 22 '20 at 16:03
  • @JohnDvorak: I suspect you are correct, the trash collection service would be unlikely to pursue. As a matter of law, though, Trish is saying it would be theft. Dec 22 '20 at 16:29
  • @Trish: So in Germany you don't have to put your trash in a bin, you can just set it out? Dec 22 '20 at 16:29
  • 1
    @AlLelopath no, but there is "Sperrmüll", which you have to declare. Then, the sperrmüll becomes property of the waste disposal the moment it stands on the street. They have a property interest in the chair, because it might be wood and burned, or it might be metal and sold as scrap.
    – Trish
    Dec 22 '20 at 16:32
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    Typically the garbage collectors will drive through the streets on a specific day of the months and pick up large items that don't fit into your garbage bin. In some places, some people would go through this rubbish, pick up any items of value, and leave a complete mess behind that needed cleaning up by someone, so some towns declared that anything you put outside to be collected immediately becomes their property. So if you pick up stuff AND leave a mess behind they charge you with theft. If you pick up my old sofa cleanly then they could sue you for theft, but they won't.
    – gnasher729
    Dec 23 '20 at 22:58
2

Larceny (at least twice)

The essential elements of that offence are —

  1. that the property must belong to someone other than the accused;

  2. it must be taken and carried away; and

  3. the taking must be without the consent of the owner of the property.

Beyond those three elements or requirements, there are an additional three elements which relate to the accused’s mental state at the time of the taking, namely —

  1. the property must be taken with the intention of permanently depriving the owner of it;

  2. the property must be taken without a claim of right made in good faith; and

  3. the property must be taken dishonestly.

In all cases, 1, 2, 3 are all satisfied. 4 is also satisfied since the act of appropriating property for your own use satisfies this even if you intend to return it.

For cases 2 & 3, 5 & 6 are satisfied the fact that the property is indicated as being for sale means that the taker neither has a claim of right in good faith nor that they are acting honestly.

For case 1, the prosecution would need to prove that the accused did not have a good faith belief that the chair was abandoned to satisfy 5. If they can do that, 6 probably follows.

2
  • does NSW have a law/ordnance that dictates who owns waste that is put out for collection (as Germany does)?
    – Trish
    Dec 23 '20 at 10:47
  • 1
    @Trish yes - it belongs to the property owner until it is legally put out for collection when it transfers to the council. If it is illegally dumped then the property is abandoned and belongs to whoever chooses to claim it but the dumper remains liable for the clean up costs and can also be prosecuted for littering. But, the OP made no suggestion that this stuff is refuse.
    – Dale M
    Dec 23 '20 at 20:45
1

In which of the following scenarios has a crime been committed?

The first scenario is inconclusive. The circumstances might support the argument that John just wanted to get rid of the chair. For instance, he might have posted an ad on the Free webpage of Craigslist.

Scenarios two and three support a finding of theft, conversion, or the like. Jane knew or should have known that the sign "$5" reflects John's intent to obtain money in exchange for the good(s) at issue. In terms of contract law, the sign is indicative of John's offer, one of the elements of a contract.

A finding of liability does not depend that much on whether Jane's intent was to permanently deprive John of the goods. Jane's retention of the cookies for two months will have caused as much harm as if she kept them permanently (or ate them) because nobody would buy rancid or bitten cookies. Even if retention lasted only few minutes, John himself might no longer want the cookies for fear that now they might be adulterated, poisonous, etc.

Likewise, Jane's temporary retention of the chair might also have prevented John from getting revenues because now cheaper chairs might be for sale at the retail store, or because the chair got damaged while under Jane's unauthorized possession.

6
  • 1
    One oddity in s.6(1) Theft Act 1968 is permanent does not necessarily mean indefinitely (!!) A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal.
    – Rock Ape
    Dec 22 '20 at 13:46
  • I ran out of characters to post the link for s.6 legislation.gov.uk/ukpga/1968/60/section/6?timeline=false
    – Rock Ape
    Dec 22 '20 at 13:48
  • which Jurisdiction is this?
    – Trish
    Dec 22 '20 at 19:04
  • 1
    @Trish "which Jurisdiction is this?" The US, which is the OP's primary jurisdiction(s) of interest. See the Black's Law Dictionary definition of conversion, misappropriation, and so forth. Dec 22 '20 at 20:27
  • 1
    @Trish "Then add that to the answer". There is no need to because the OP himself asked primarily about the US. Only had I focused on another country I would have to make that explicit. The fact that each jurisdiction in the US may have its own definition does not imply that the definitions are materially different, and I do not intend to make an encyclopedic survey of the 50+ statutory definitions. Dec 22 '20 at 20:52
0

The first one would not be considered theft if jurisdiction considers the property as abandoned. Numerous rulings, including federal. Discarding item relinquishes property rights.

Here is one. Many others available

The Defendants argue that the trash in Dilling's dumpster was abandoned property. They cite the holdings of various criminal cases dealing with Fourth Amendment ... Although numerous issues were raised on appeal, we find one issue dispositive: Whether the bags of trash Long took from Dilling's dumpster were abandoned property. We answer in the affirmative, and reverse and remand with instructions.

2
  • can you cite a law that explains it? For example, as shown in Germany simply letting it at the curb does not count as "abandoning" that easily.
    – Trish
    Dec 23 '20 at 15:05
  • @Trish as stated previously, depends on jurisdiction where the act occurred.
    – paulj
    Dec 23 '20 at 15:27

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