The Client, having reached for the milk one morning expecting a quarter-gallon and finding instead a vessel containing what she estimated to be one tablespoon, was moved to make inquiries. The inquiries became, by the end of the week, a docket.
A pantry audit conducted the following Saturday revealed: one empty milk carton (returned to the refrigerator), one cereal box containing approximately seven crumbs, one snack-bag of pretzels containing two pretzel fragments and approximately fifteen grams of salt, one peanut-butter jar containing what could be called a smear, and one box of granola bars containing exactly one wrapper. All five items had been replaced in their original positions — in the refrigerator and on the pantry shelves respectively — in a manner that suggested they had been returned by someone who had used them, but had not yet been registered, by the same someone, as empty.
The Respondent's Defense
The Respondent, when confronted, offered what we will allow was a creative defense. She had returned each empty container to its position, she said, because she had thought there was more. The thought, she conceded under questioning, had been informed primarily by the desire that there should be more, and only secondarily by the available evidence of remaining contents. She had also, she allowed, not actually opened the cereal box to check; she had judged its likely fullness by hefting it briefly in her hand. The hefting test, the Journal must note, is not an instrument of scientific precision.
The "I thought there was more" defense is, the Journal will allow, an interesting one. It is not, technically, a denial of the conduct: the Respondent stipulated that the empty containers had been replaced in the pantry by her, and stipulated further that she had been in possession of the relevant containers at the moment of their emptying. The defense, instead, frames the conduct as the byproduct of an unintentional misperception — a kind of negligence-as-optimism — rather than an act of bad faith.
Fraud by Omission
We were obliged, in evaluating the defense, to introduce a useful technical category. Fraud by omission — the concept that an actor can deceive not only through positive statement but also through the strategic non-disclosure of material facts — has a long history in the law of consumer protection and corporate disclosure. The Journal's view, after considerable deliberation, was that the Respondent's conduct had drifted across the line from negligence into the borderlands of omission. The Respondent had, on at least one occasion, looked into the cereal box, observed its actual state, and chosen to return it to the pantry rather than disclose the state to the household. The non-disclosure was material because the Client, in the absence of disclosure, had built her morning around the assumption of available cereal.
The Respondent disputed the characterization. She had not, she said, intended to deceive. She had simply not wanted to be the bearer of the bad news that the cereal was gone, given that this would inevitably lead to a discussion about whether she had eaten more than her share, which she did not wish to have. The Journal will note, here, that the desire to avoid an awkward conversation is among the most common drivers of small household fraud, and is among the most fully resolvable by the simple alternative of having the conversation.
Disposition
The matter was resolved by the introduction of a household rule of the Client's drafting. Any empty container returned to the pantry or refrigerator must be either disposed of in the recycling or relabeled in permanent marker as "EMPTY," in capital letters, on the face of the container. Compliance has been variable. The Client has, however, observed a notable improvement in the morning-cereal experience. The marker, when used, has tended to be hers. The Respondent has indicated, when asked, that she will "do better." This formulation, the Journal must observe, is roughly equivalent to filing a continuance. The Client has, by way of supplementing the rule, taken to checking the cereal box herself before pouring. She does this with the resigned efficiency of a creditor who has learned not to expect remittance, but who still, by reflex, audits the books. The Respondent has not yet, the Journal is given to understand, marked a container "EMPTY." She has, however, on one occasion observed the marker on the kitchen counter and moved it.