Originally Posted by
Flying Lawyer
Wait and see what the BGH will say one day
. Just rememeber the "sitting-on-a-train-without-a-ticket-and-not-notifiying-the-conductor-case". It is fraud. Or the "ordering-a-beer-in-a-pub-without-having-the-ability-to-pay-case". It is fraud. It is very simple to alledge without and reasoning that I am "wrong claiming". The German BGH developed a great creativity to define unethical behaviour as fraud. I really do not believe that you would advise your clients - if being asked as professional - that there is no risk. If so, your are a brave guy but should increase your professional indemnity insurance.
Your examples have no bearing on this case. The facts are distinctly different. You seem to remember some cases from law school and you are desperately trying to make the facts of this case fit to those cases, which is a typical mistake called "Tatbestandsquetsche" by some. I wouldn't even bother explaining it to you as it should be obvious, but since you felt the need to make comments about increasing professional indemnity insurance, I will address your false legal opinion briefly.
As was already pointed out, if you follow the facts as stated by the OP, there was no misrepresentation, and there was no error.
Originally Posted by kevinsac
However, for what it's worth, I acted in full disclosure. Both the ticket agent and the warden(s) knew what I was doing. The ticket agent told me to come to the front of the line when I was ready to return the ticket; she knew I would be back in a few hours and had no intent of flying because I only wanted the ticket for lounge entry. She told me not to stand in the long line.
The lounge warden(s) also knew that I had no intent to fly. Warden 1 refused me entry, according to the rules. She stated I had to have an onward flight. (Skip the first ticket to MUC.) When I presented my Hong Kong ticket at the counter, Warden 1 was busy, so I gave the ticket to Warden 2. She asked if I had any baggage (huh?) and when I replied "No", she offered to check me in. When I asked her not to check me in (did not know if I could still get a refund then), Warden 1 turned to Warden 2 and said "This is the gentlemen who was here a few minutes ago...." and then told her that I only wanted to use the lounge but was not eligible until I had an onward ticket. I specifically told Warden 2 (with Warden 1 listening) that I was returning the ticket upon leaving the lounge. I did not have a boarding pass. They let me in only with an onward ticket and without a boarding pass.
There was no misrepresentation there, no matter how much you wish to construe it.
Originally Posted by Flying Lawyer
For those who like a quick lesson in German criminal law.
Fraud requires:
* Missrepresentation: At the latest the moment he asked for a boarding pass in the clear intention not to fly and at the very latest he presented the pass to the lounge dragon he conducted a missprepresentation.
Fact: He didn't even ask for a boarding pass. He told the lounge dragon he wanted to return the ticket, so there was full disclosure = no misrepresentation.
Originally Posted by Flying Lawyer
* Creating an error: The lounge dragon obviously was in error about his real intentions.
Fact: Since he told the lounge dragon he wanted to return the ticket later, she was not in error. It rather seems like she "gave in because she got tired of arguing with him".
Check facts first - give lessons in law later.
(Moreover, if he had purchased a ticket and had had the boarding pass which entitles him to enter the lounge, he would have had a contractual right to enter the lounge with it, so the "Rechtswidrigkeit des Vermögensvorteils" would have been missing at the time the boarding pass would be presented to the lounge dragon. And if you want to construe fraud at the moment of the ticket purchase, there was no misrepresentation to the LH ticket agent either (and no error), if he expressly tells her he only wants the ticket to get into the lounge and that he'll return it later.)