1. Any person who, pretending to be owner of any real property,
shall convey, sell, encumber or mortgage the same.
2. Any person, who, knowing that real property is encumbered,
shall dispose of the same, although such encumbrance be not
3. The owner of any personal property who shall wrongfully take
it from its lawful possessor, to the prejudice of the latter
or any third person.
4. Any person who, to the prejudice of another, shall execute
any fictitious contract.
5. Any person who shall accept any compensation given him under
the belief that it was in payment of services rendered or
labor performed by him, when in fact he did not actually
perform such services or labor.
6. Any person who, while being a surety in a bond given in a
criminal or civil action, without express authority from the
court or before the cancellation of his bond or before being
relieved from the obligation contracted by him, shall sell,
mortgage, or, in any other manner, encumber the real property
or properties with which he guaranteed the fulfillment of
ELEMENTS OF SWINDLING BY CONVEYING, SELLING, ENCUMBERING, OR
MORTGAGING ANY REAL PROPERTY, PRETENDING TO BE THE
OWNER OF THE SAME:
1. That the thing be immovable, such as a parcel of land or a
2. That the offender, who is not the owner of said property,
represented that he is the owner thereof;
3. That the offender should have executed an act of ownership
(selling, leasing, encumbering or mortgaging the real
4. That the act be made to the prejudice of the owner or a
ESTAFA INFIDELITY IN THE
CUSTODY OF DOCUMENTS
1. Private individual 1. Public Officer Entrusted
2. Intent to defraud 2. No Intent to defraud
The thing disposed of must be real property. If it’s
chattel, crime is Estafa.
Even if the deceit is practiced against the second purchaser
but damage is incurred by the first purchaser, there
is violation of par.1 of Art. 316.
Since the penalty is based on the “value of the damage”
there must be actual damage caused.
ELEMENTS of SWINDLING BY DISPOSING OF REAL PROPERTY AS FREE FROM
ENCUMBRANCE, ALTHOUGH SUCH ENCUMBRANCE BE NOT RECORDED:
1. That the thing disposed of be real property;
2. That the offender knew that the real property was encumbered,
whether the encumbrance is recorded or not.
3. That there must be express representation by the offender that
the real property is free from encumbrance; and
4. That the act of disposing of the real property be made to the
damage of another.
Encumbrance: includes every right or interest in the land
which exists in favor of third persons.
The offended party would not have granted the loan had he
known that the property was already encumbered.
When the loan had already been granted when defendant
offered the property as security for the loan, Art. 316
par. 2 is not applicable.
Usurious loan with equitable mortgage is not an encumbrance
on the property.
There must be damage caused. It is not necessary that act
prejudice the owner of the land.
ELEMENTS of SWINDLING BY WRONGFULLY TAKING BY THE OWNER HIS
PERSONAL FROM ITS LAWFUL POSSESSOR:
1. That the offender is the owner of personal property;
2. That said personal property is in the lawful possession of
3. That the offender wrongfully takes it from its lawful
4. That prejudice is thereby caused to the possessor or third
US vs Albao
If the owner took the personal property from its lawful
possessor without the latter’s knowledge and later
charged him with the value of the property, the crime
If the thing is taken by means of violence, without
intent to gain, it is not estafa, but grave coercion.
BY EXECUTING ANY FICTITIOUS CONTRACT TO THE PREJUDICE OF ANOTHER
A person who simulates a conveyance of his property to
another, to defraud his creditors. If the conveyance is
real and not simulated, the crime is fraudulent
BY ACCEPTING ANY COMPENSATION FOR SERVICES NOT RENDERED
OR FOR LABOR NOT PERFORMED
1. Accepting a compensation given to accused for service not
2. Malicious failure to return the compensation wrongfully
There must be fraud otherwise it will only be solutio
indebiti, with civil obligation to return the wrong
If the money in payment of a debt was delivered to a
wrong person, Art. 316 par 5 is not applicable, in
case the person who received it later refused or failed
to return it to the owner of the money. Art. 315
subdivision 1(b) is applicable.
ELEMENTS of SWINDLING BY SELLING, MORTGAGING OR ENCUMBERING REAL
PROPERTY OR PROPERTIES WITH WHICH THE OFFENDER GUARANTEED
THE FULFILLMENT OF HIS OBLIGATION AS SURETY:
1. That the offender is a surety in a bond given in a criminal
or civil action;
2. That he guaranteed the fulfillment of such obligation with
his real property or properties;
3. That he sells, mortgages, or, in any other manner encumbers
said real property;
4. That such sale, mortgage or encumbrance is
(a) without express authority from the court, or
(b) made before the cancellation of his bond, or
(c) before being relieved from the obligation contracted by him.