Expert Insight

Breach of Trust The Kuwaiti Lawyer . Nevin Abdel Wahed Marafi

The Kuwaiti legislator meant the preservation of people's rights and the imposition of sanctions, and among other crimes related to the financial rights of people is the breach of trust.

The breach of trust is "the act of the one who embezzles something transmitted to it as a matter of trust, in order to harm its owner or to take it over."

It is one of the crimes that falls on the funds and is among the most widespread, so the Kuwaiti legislator developed a penal legal provision to deal with such crimes. Article 240 of the Penal Code stipulates that "anyone who has acquired money owned by others, based on a deposit, rent, mortgage, power of attorney or any other contract that obliges it to preserve the funds, to return it in kind or to use it in a particular matter for the benefit of its owner or any other person, and to provide an account for this use or based on a legal provision or a judicial judgment requiring this person to do so,  but he took the money over, acted in it for himself or deliberately destruction. In the previous paragraph, money is considered documents that prove to the owner a right or discharge of its right.

The crime of breach of trust, like other crimes, shall have some elements and elements of this crime:

First: seizing the money, disposing of it, destructing

Achieving that element in every act that indicates that the perpetrator (the trustee) considered the money entrusted to it to be disposed of as the owner's act in its property.

Whether, these acts will be carried out on all or some of the money, but in the case of partial damage, it is required that making the money unusable, and the crime of breach of trust is a temporary crime that takes place and ends as soon as the perpetrator commits one of the pictures of the physical element, which is to seize the money or dispose of it or deliberately destruction.

Second: criminal intent

Science and will are the two sides of criminal intent, and the availability of this intention shall be that the perpetrator has spent money knowing that he is acting in money doesn't belong to it but he has only incomplete possession, and that its will tends to deprive the owner of the money of its rights.

Third: is the delivery of money based on a contract of the trust or any other contract

The perpetrator is obliged to maintain it, and it is clear from this element that the money shall have handed over on the basis of a contract of the trust or any other contract in which the perpetrator is obliged to maintain it, including:

1- Deposit: It is a contract whereby a person is obliged to receive something else to be saved, and he has to return it in kind, and does not require that the delivery be real, so it could be legal, so he is considered to be a waster who embezzles part of the sold goods that remain in his hand as a deposit and is taken over by the thief against the will of the owner or without its knowledge, but in the breach of trust, the object is found in the possession of the perpetrator legally, as the owner handed over to perpetrator with the consent and then the perpetrator embezzles that object or acts in it contrary to the bond which he received thereunder, the breach of trust commits to change the capacity of possession and transfer it from incomplete possession to full possession, contrary to theft, it requires the embezzlement of the possession of itself.

The crime of theft is considered an assault on both possession and ownership, as the object is in the possession of the victim at the time of theft, and the crime of breach of trust is an assault on the right of ownership without possession, if the object is in the possession of the perpetrator of the crime of breach of trust at the time of committing its crime.

1- Breach of trust and Deception

Breach of trust differs from the deception that the extradition in the deception crime is the result of the use of fraudulent methods by the perpetrator with the intention of the embezzlement of the object in which the crime is achieved, while in breach of trust, the object is handed over in effect of a civil contract of the credit contract and without the use of the fraudulent methods and there aren’t  fraudulent methods in it, unless it is proved that the person who received the object betrayed the contract of the trust and embezzled the object for itself or the owner acted in it.

The similarity between the breach of trust and deception is that the delivery of the object in terms of the consent of the victim and its choice, and the occurrence of the assault on the right of ownership without possession. The difference is that the delivery in breach of trust which be under a contract of trust contractors and what is delivered as a matter of trust documents after the ownership has been transferred to the purchaser. The real delivery does not require to have happened to the depositor directly, but all who have been to save something for being a public successor and has squandered it or taken it and he knows its truth is considered dishonest. if it is embezzled or squandered, he is dishonest.

2- Leasing: It is a contract under which the lessor is obliged to enable the lessee to use a certain object for a certain period in return for a known fee and the crime of breach of trust falls on the material transfers in the lease.

3- Secondment Contract: it is a contract under which a person gives something to another person to benefit of it for a certain period, provided that the borrower returns what he borrowed so that this reply to the same thing is not worth it, other than the consumed secondment contract.

4- Possessory Mortgage: It is a contract in which a person is obliged, as a guarantee of a debt owed by it or other, to deliver to the creditor or for a foreign appointed by the contracting parties, something that gives the creditor an in-kind right that entitles it to hold something until the debt is paid…

The mortgagee is obligated under, this contract, to keep the mortgaged object and return it in kind after its right fulfillment. Therefore, the possession mortgage is in the deficient possession of the mortgagee; so it commits a breach of trust if it embezzles, disperses or refrains from returning the mortgaged thing after fulfilling what he has.

5- Power of Attorney:  It is a contract under which the Attorney is obliged to perform legal work on behalf of the Grantor; and its subject is always a legal work performed by the Attorney on behalf of the Grantor. The Power of Attorney’s source does not require being the contract; rather, it stipulates that the money has been delivered to the trustee based on a Power of Attorney.

This extends to include the Power of Attorney in accordance with a contract and the legal and judicial Power of Attorney, and it is equal to commit the crime against the Attorney, whether it is a free Power of Attorney or with a fee, explicit or implicit. The Attorney commits a breach of trust if he embezzles or disperses the things that were delivered to it based on a Power of Attorney contract; namely the things that it be in trusted on behalf of its Grantor.

6- Using something for the owner or others benefit (doing material work): if the subject of a breach of trust is delivered to a trustworthy "to use it" in a specific matter for the benefit of its owner or any other person; this term means the "worker" who receives something to perform material work, in favor of the owner of the thing or in favor others, if it seizes the thing that he received as in trust.

It is considered as money; and in the case of trust contracts, it is considered as documents that prove the owner of a right or absolve it from a right.

Here, a question arises regarding some crimes that are very similar to the breach of trust crime.

Breach of Trust and Theft:

Breach of trust is similar to theft as it happens in others money, but it differs from theft in that the latter is committed by stealing money; in which the thing is taken surreptitiously or by force while delivery in the deception is the result of fraudulent methods initiated by the Accused and affected the will and choice of the Victim.

Finally, what are the penal penalties decided by the legislator to deter the breach of trust perpetrator? It shall be punished by imprisonment for a period not exceeding three years and by a fine not exceeding 2250 dinars, or by one of these two penalties.  The breach of trust crime is the same as any other crime that the Kuwaiti legislator intended to fight and deal with, but the seriousness of this crime is that it is more influential; as it leads to loss trust between people, which, therefore, leads to transactions disruption between them; and one of its consequences is instability of social security.

Therefore, it was necessary for everyone to beware of the consequences of these crimes because they are widespread in society.

It was a simple glimpse in which I wanted to show some of the issues that significantly affects the majority in society.

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