Fraud (§ 263 StGB): Elements, Concept of Damage, Case Groups & Defence Strategies

Fraud under Section 263 of the German Criminal Code (StGB) is the central property offence in German criminal law. It covers any deception-induced self-damaging action by the victim resulting in an immediate financial loss – ranging from everyday cases (online shops, subscription traps, fake debt collection) to complex economic constellations (credit fraud, investment fraud, billing fraud or subsidy fraud).

A commercial assessment applies: the decisive factor is the market or special market value, and in borderline cases the concretely quantifiable risk of loss. Subjectively, fraud requires intent as well as the purpose of unlawful, equivalent enrichment. Civil and public law aspects (such as entitlement or billing requirements) strongly influence the assessment of damage.

Given the high sentencing range and frequent evidentiary issues, early criminal defence is essential, focusing on deception, causality, calculation of damages and concurrence with other offences.

In short: Fraud requires deception, error, disposition of property, financial loss, intent and the intention of unlawful, equivalent enrichment. Attacking the calculation of damages and causality at an early stage is often decisive in the defence.

1) Legal Framework in Brief

The objective elements: deception → error → property disposition → immediate financial loss.
The subjective elements: (at least conditional) intent regarding all elements plus an intent to gain an unlawful enrichment that directly corresponds to the victim’s loss.

A distinction must be made between contractual fraud (Eingehungsbetrug) and performance fraud (Erfüllungsbetrug).

2) Financial Loss: Market Value, Special Markets & Difficult Cases

The assessment is economic: what counts is the market value – which can be general or specialised (stock exchange, second-hand trade, art auctions).

Examples:

• Goods of different origin or quality, or with price-determining factors (reputation, trade bans, provenance), may be deemed less valuable even if functional.
• Services provided without proper payment cause damage, even if spare capacity existed (e.g. half-empty train journey).

Contentious borderline cases:

• Discount fraud: debate between a reduced gain versus an actual loss.
• Bid rigging/collusion: damage arises from collusive price increases, not simply the manipulated market price.
• Art auctions/fake bids: manipulated prices → overpayment = damage; not every breach of rules suffices.

3) Endangerment Loss (Gefährdungsschaden)

A concrete, quantifiable risk can already constitute damage if the ultimate loss becomes significantly more likely.

Examples:

• Worthless or unenforceable claims (loan, cheque, direct debit).
• High-risk investments without genuine security.
• Manipulated sports bets (“odds manipulation”).
• Litigation fraud: moving from a secure to an insecure litigation position (e.g. provisionally enforceable judgment).

4) Contractual Fraud vs. Performance Fraud

• Contractual fraud: comparing the value of mutual claims at contract conclusion.
• Performance fraud: comparing the agreed service with the actual service rendered.

If deception at contract conclusion continues into performance, courts treat it as one continuous offence.

5) Personal Loss Impact & Purpose Defeat

Generally, the objective standard applies. Personal circumstances only matter where the service is unusable for the intended purpose and not reasonably exploitable (e.g. useless product despite apparent market value).

For donations, grants or subsidies without entitlement, the key is whether the intended purpose was achieved at the time of approval. Formal breaches without purpose-related relevance are insufficient.

6) Typical Case Groups

• Employment fraud: mismatch between work quality and salary, especially in trust-based roles.
• Credit/payment fraud: worthless claims, lack of security; no damage if sufficiently secured.
• Good faith acquisition: usually no loss for the purchaser, unless a concrete litigation risk exists.
• Healthcare/billing fraud: billing requirements can shape the definition of damage.
• Betting/sports manipulation: risk shifted to the organiser, measurable as damage.
• Subsidy/welfare fraud: the decisive factor is the material eligibility criteria; excessive claims = damage.
• Tax vs. fraud: Section 370 Fiscal Code (tax evasion) takes precedence, but fraud scenarios outside tax law remain relevant.

7) Intent, Enrichment & Equivalence

Intent must cover all elements and causation. The intent to enrich requires that the intended benefit corresponds to the victim’s loss (functional equivalence). Follow-on advantages are not sufficient.

Defence points: absence of equivalence, altruistic motives instead of self-interest, or differing entitlement situations.

8) Attempt, Completion, Termination

• Attempt: begins with a deceptive act (e.g. fraudulent contract offer).
• Completion: occurs once (partial) damage is sustained.
• Termination: usually with the final financial loss (relevant for limitation and participation).

9) Particularly Serious Cases (§ 263 (3) StGB)

Examples include:

• Commercial or gang-related fraud.
• Large-scale damage (generally from €50,000).
• Abuse of authority.
• Insurance fraud.

10) Distinctions & Concurrences

• Tax offences: often take precedence as special provisions.
• Theft vs. fraud: theft = taking, fraud = voluntary disposition.
• Insolvency offences: may apply alongside fraud (e.g. bankruptcy under § 283 StGB).

11) Defence Strategies

Effective defence focuses on:

• Deception/error/disposition: scope, attribution, third-party knowledge.
• Damage/endangerment: quantification, market vs. special price, securities, creditworthiness.
• Equivalence of benefit: functional connection, possible altruistic motives.
• Timing: correct classification of contractual vs. performance fraud.
• Concurrences & formalities: overlap with tax or insolvency law, procedural strategy.

Our fraud and white-collar crime defence lawyers in Frankfurt assess every case individually and develop tailored strategies.

FAQ: Fraud under Section 263 StGB

What counts as financial loss?
A reduction in wealth measured by objective market value, including specialised markets.

Does a mere risk count as damage?
Yes, if it is concrete and quantifiable (e.g. worthless loan claim, manipulated betting odds).

What is the difference between contractual and performance fraud?
Contractual fraud compares claims at contract conclusion; performance fraud compares services delivered.

When is a particularly serious case given?
For example, if the damage exceeds €50,000, or if fraud is committed commercially or in a gang.

How can fraud charges be defended?
By challenging the deception, causality, calculation of damage, or equivalence of enrichment, as well as by raising procedural objections.

Contact Us – Your Criminal Defence Lawyers in Frankfurt and Nationwide

• Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
• Frank M. Peter, Specialist Lawyer for Criminal Law
• Dr. Sven Henseler, Criminal Defence Lawyer, Diplom-Finanzwirt (FH)
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Consultant and former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been specialising in criminal defence and white collar cases for over 25 years in Frankfurt am Main. We represent clients nationwide.

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