Insurance Fraud: A Material and Intellectual Harm

Insurance fraud is widespread, yet it attracts little public disapproval. Unlike several European legislations, the Moroccan legislator has not created a specific offence for it in either insurance law or criminal law. Insurance fraud is therefore prosecuted under the general offence of swindling in Article 540 of the Moroccan Penal Code, a provision inspired by former Article 148 of the Swiss Penal Code. Its broad and flexible wording gives the judge considerable discretion. This article examines insurance fraud as a twofold harm, material and intellectual. The first part analyses the material element of the offence. A simple lie is not enough: there must be fraudulent means, namely false assertions, concealment of true facts or the cunning exploitation of another's error, supported by external facts that give the lie credibility. The deception must also lead the insurer to hand over funds or valuables to its own detriment. The second part addresses the intellectual element. It distinguishes intent from motive and intent from purpose, and highlights the special intent required, namely the pursuit of unjust enrichment for oneself or a third party. It also considers how to identify attempted insurance fraud and how to tell voluntary withdrawal apart from interruption by external circumstances. The study concludes that swindling has a dual nature. It is an offence against property and also against the freedom of consent, which is particularly significant in the insurance contract, a contract of utmost good faith.