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I sometimes see this happen in supermarkets; parents of bored children will give them some non-specific snack while shopping or while standing in line to pay, and will then scan the wrapper of the item at the checkout and pay for it with the rest of their items.

While I understand that realistically it's unlikely that someone would be charged with a criminal offence for doing this, technically speaking, does this satisfy the definition of theft? As far as I'm aware, theft requires the perpetrator to

(1) take control of property, and

(2) intend to deprive the rightful owner of it.

This would seem to be satisfied in the example above, as once the product is consumed the rightful owner (the supermarket) is deprived of it. Does the intent to pay eventually make a difference to (2)?

Please assume that the intent to pay for the goods at checkout is not in dispute.

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  • This is standard practice, say, in restaurants. Unless it's a fast food situation, you typically pay for your meal after eating it, not before. Dec 20, 2022 at 17:59
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    @DarrelHoffman That isn't the same situation. Items on display in a shop are an invitation to treat, not an offer. The offer is made by the customer to the cashier and a contract is only formed when the cashier accepts. You don't have the shop's consent to eat the item until that time. In a restaurant on the other hand, you make an offer when you place your order with the waiter who then accepts it. By the time the food arrives at the table the restaurant has already consented to you eating it.
    – JBentley
    Dec 20, 2022 at 19:58

1 Answer 1

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It depends on whether one honestly believes that the supermarket would consent to them eating a snack before paying for it.

If there is no consent, either explicit or implied, then it is theft as no contract has been performed or fulfilled so ownership hasn't transferred, as follows:

Theft is defined by section 1Theft Act 1968 as:

(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly.

The two elements relevant here are "dishonestly" and "intention of permanently depriving".

Section 2 offers three defences to being dishonest, with this being the only one applicable here:

(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest—

...

  • (b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it...

The definition of intention to permanently deprive may be found at section 6:

(1) 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...

See this article by News Shopper that explains it in a much better way than I could without me commiting plagiarism:

Buying a product at the till is what transfers the ownership from the product belonging to the shopkeeper, to it belonging to you.

And only when that sale is complete do you have the legal right to consume or use it.

If you eat the chocolate before you legally own it, you are permanently depriving the owner of his right to the product – he can no longer refuse you the sale or take the item off the shelves.

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    @gnasher729 I'd assume it's more anything that would make it unsaleable - if you just open the wrapper, that'd be enough.
    – Bobson
    Dec 20, 2022 at 7:35
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    In the US, courts generally understand that to permanently deprive someone of something, you must permanently deprive them of the benefit of owning it. If your intent is that they get full value for it, you don't intend to deprive them of the benefit of owning it. So "I intended to pay for it" would be a defense to theft if the jury believed you. While it's true he can no longer refuse you the sale or take the item off the shelves, that's just a loss of some of the privileges of ownership and is not a crime in most of the US (may be a tort, like trespass to chattels). Dec 20, 2022 at 7:35
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    The "refuse the sale" option is quite important in some places. E.g. the seller could be banned from selling alcohol at night and the ban is actually enforced at the cash desk.
    – fraxinus
    Dec 20, 2022 at 9:51
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    @fraxinus Sometimes I see "lifehacks" like that: "If you want to buy alcohol at night, just open the bottle, then compensate for damaged goods, it is not a sale so it is legal, and they won't refuse you since they don't want a loss". It is so annoying. Dec 20, 2022 at 12:06
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    @Bobson That isn't a scenario where we'd be considering theft though. It lacks appropriation, intention, etc.
    – JBentley
    Dec 20, 2022 at 20:25

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