Theft vs Estafa

The crime of theft is closely related to the crime of estafa. Oftentimes, it creates confusion to the victim as
to what should be charged against his offender. However, although having similarities, these two crimes are
very much different from each other.

Theft

Theft is committed when the offender has taken a personal property of another, without the owner’s
consent. Such taking, since it is unknown to the owner, only gives the offender material possession of the
property. To define, material possession means the actual physical possession of the personal property,
where the possessor does not have a better right over such property than the owner. Then, after taking the
property, the offender misappropriates the property. The offender takes the property and uses it as if he is
really the owner.

For example, if Ana takes the mobile phone of Maria from Maria’s pouch without her consent, then Ana
should be liable for theft. In this case, Ana has physical possession of the mobile phone, and after taking it
she may use it as if it was her own.

Estafa

If the possession of the property by the offender arouse from a contract or an agreement, then the
possessor has juridical possession of the property – a right over the property, which he can claim and set
up even against the owner.

The juridical possession contemplated for the estafa refers to the delivery of the thing to the offender in
trust, or on commission, or for administration or under any other circumstance involving the duty to deliver
or to return the same thing received. If the delivery, is therefore, not made under any of said concepts, the
crime is theft.

To distinguish theft from estafa, it is important to know whether the possession of the property by
the offender is only material or if it is coupled with juridical possession. For example, in the case of Ana and
Maria, if Maria agrees to lend Ana her mobile phone for a week, then Ana has a right over the mobile phone
for that week. Maria cannot take the mobile phone from Ana during the week that they have agreed upon.
Because of their agreement, Ana acquired juridical possession over the property. But, if Ana sells the phone
during the week that it was within her possession, then it is obvious that she has converted the use of the
property. She was permitted to use it, but she was not authorized to sell it. If this happens, estafa is
committed.

Qualified Theft and Estafa

Both qualified theft and estafa may be committed by abuse of confidence. However, it will be easier to
determine whether the crime is qualified theft or estafa once it is settled if the possession is merely material
or juridical. If it is only material possession and there was misappropriation, then the crime committed is
qualified theft. If there was juridical possession and it was misappropriated or converted, then the crime
committed is estafa.
Where only the material possession is transferred, conversion of the property gives rise to the crime of
theft; where both material and juridical possession are transferred, misappropriation of the property would
constitute estafa; and, where in addition to the material and juridical possession, the ownership of the
property is transferred, misappropriation would only give rise to a civil obligation. (People vs Aquino, [CA]
36 O.G. 1886)

Theft = Material Possession + Misappropriation

Estafa = Material Possession + Juridical Possession + Misappropriation/Conversion

Civil obligation = Material Possession + Juridical Possession + Ownership

Case in point is Sheala Matrido vs. People of the Philippines, GR. No. 179061, July 13, 2009. In this case,
Sheala was the credit and collection assistant of Empire East Land Holdings, Inc. whose duty was to collect
payments from buyers of real estate properties developed by Empire East Land Holdings, Inc., issue
receipts therefor, and remit the payments to employer in Makati City. Sheala failed to remit payments
received from its clients, so she was charged with estafa.

The Supreme Court ruled that Sheala is liable for qualified theft, not estafa. She did not have
juridical possession over the amount involved. A sum of money received by an employee in behalf of the
employer is considered to be only in the material possession of the employee. For there to be
juridical possession, the employer must recognize such, otherwise the crime committed remains to be
qualified theft.

Possession of agent vs possession of employee

The conversion of personal property in the case of an employee having material possession of the said
property constitutes theft, whereas in the case of an agent to whom both material and juridical possession
have been transferred, misappropriation of the same property constitutes estafa.

A sum of money received by an employee in behalf of an employer is considered to be only in the material
possession of the employee. The material possession of an employee is adjunct, by reason of his
employment, to a recognition of the juridical possession of the employer. So long as the juridical
possession of the thing appropriated did not pass to the employee-perpetrator, the offense committed
remains to be theft, qualified or otherwise.