The major issue in the law of false pretenses is whether the crime must be objectively discernible at the time of commission. This problem is expressed, doctrinally, in the question whether misrepresentations of future facts or even silence may satisfy the required element of a fraudulent misrepresentation. If a misrepresentation about one's willingness to repay a loan is sufficient to constitute the required pretense, then it is obviously possible to commit the crime at a moment at which one's conduct appears to be in the ordinary course of business. Penalizing these un-manifested intentions to defraud is the clear trend of the law, in Continental as well as Anglo-American jurisdictions.6 As such, the trend conforms neatly to the pattern of subjective criminality, for the essence of fraud then reduces to the twin elements of fraudulent intent and the harm suffered by the deceived victim.
Though the modern trend conforms to the principle of subjective criminality, it is not so clear that the older rule reflects the principle of manifest criminality. Requiring a pretense about a past or present fact provides an external anchor for the crime. Yet the offender's lie is not immediately discernible as false; if it were, we should regard the victim as a fool and personally at fault in suffering his loss. This externalized false pretense resembles the falsehood in libel per quod rather than libel per se.7 The lie is documentably false, but only after researching the true state of affairs, say, of the offender's credit situation or of the quality of the goods. It is external criminality, but not manifest criminality. Thus we see that our two patterns of criminality do not fit perfectly in accounting for this dispute about the required false pretense.
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