Theft vs Estafa: What Is the Difference?
Quick answer
Theft and estafa are both ways of depriving another person of money or property. The difference is how the offender gets it. In theft, he takes it without the owner's consent. In estafa, the owner hands it over, because it was entrusted to the offender or because the offender lied, and the offender then cheats the owner out of it. Both are punished mainly according to the value involved.
| Aspect | Theft | Estafa (swindling) | Legal basis |
|---|---|---|---|
| Definition | Taking personal property of another, with intent to gain, without violence or intimidation against persons nor force upon things, and without the owner's consent (Art. 308). | Defrauding another by one of the means listed in Article 315: unfaithfulness or abuse of confidence, false pretenses or fraudulent acts done before or at the time of the fraud, or other fraudulent means. | Article 308, Revised Penal Code, Article 315, Revised Penal Code |
| How the offender gets the property | He takes it. The owner does not hand it over. | The owner hands it over: in trust, on commission, for administration or with a duty to return it, and the offender then misappropriates it or denies receiving it; or because of a lie told before or at the time it was given. | Article 308, Revised Penal Code, Article 315, Revised Penal Code |
| Common examples | Shoplifting; taking a phone left on a table; keeping lost property instead of delivering it to the owner or the local authorities (Art. 308). | Selling goods received on consignment and keeping the money; collecting a fee by falsely pretending to have influence or qualifications; paying with a check while having no funds in the bank (Art. 315). | Article 308, Revised Penal Code, Article 315, Revised Penal Code |
| What sets the penalty | Mainly the value of the property stolen, under the scale of Article 309 as amended by Republic Act No. 10951. Two degrees higher for qualified theft (Art. 310). | The amount of the fraud, under the brackets of Article 315 as amended by Republic Act No. 10951, with a total of no more than 20 years. Estafa by postdated or bouncing check has its own, heavier scale. | Article 309, Revised Penal Code, Article 310, Revised Penal Code, Article 315, Revised Penal Code |
| Stages | Attempted or consummated only. Theft is consummated once the offender gains possession of the thing, even without a chance to dispose of it (Valenzuela v. People, 2007). | Valenzuela was a theft case. This page does not cover the stages of estafa. | Article 6, Revised Penal Code |
| Between close relatives | Only civil liability, not criminal, for the relatives listed in Article 332. Strangers who take part are not exempt. | The same rule: Article 332 names swindling. It does not cover estafa complexed with falsification (Carungcong v. People, 2010). | Article 332, Revised Penal Code |
| Civil liability | Every person criminally liable for a felony is also civilly liable (Art. 100), so the court also rules on returning the property or paying for the loss. | Same rule (Art. 100). | Article 100, Revised Penal Code |
What do the two articles say?
Article 308 defines theft:
Theft is committed by any person who, with intent to gain but without violence against or intimidation of persons nor force upon things, shall take personal property of another without the latter's consent.
Article 315 punishes "Any person who shall defraud another" by one of the means it lists. The two most common are abuse of confidence and deceit:
(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other personal property received by the offender in trust or on commission, or for administration, or under any other obligation involving the duty to make delivery of or to return the same, even though such obligation be totally or partially guaranteed by a bond: or by denying having received such money, goods, or other property.
- By means of any of the following false pretenses or fraudulent acts executed prior to or simultaneously with the commission of the fraud: (a) By using fictitious name, or falsely pretending to possess power, influence, qualifications, property, credit, agency, business or imaginary transactions, or by means of other similar deceits.
How do you tell them apart?
The key is how the property left the owner's hands.
- The owner did not give it. The offender took it, quietly and without violence or force. This points to theft.
- The owner gave it, with a duty to return or deliver it. Goods on consignment, money to pay a bill for the owner, an item to repair. If the offender keeps it or denies receiving it, this points to estafa by abuse of confidence.
- The owner gave it because of a lie. A fake job slot, a false claim of influence, a made-up business. The lie came before or at the time of the payment. This points to estafa by deceit.
If the taking was done with violence, intimidation or force upon things, such as breaking a lock, the crime may be robbery instead. See robbery vs theft.
What about an employee who keeps money?
This is where the two crimes come closest. Article 310 makes theft "qualified", with a penalty two degrees higher, when it is committed by a domestic servant or "with grave abuse of confidence". Article 315 makes it estafa to misappropriate property received in trust or with a duty to return it. Both speak of confidence. Which one applies depends on how the person held the property and on the facts the court finds proven. This page does not cover the court rulings that draw this line. See qualified theft.
How are the penalties set?
Both crimes use value scales that Republic Act No. 10951 (2017) raised from the 1930 amounts.
- Theft follows the scale of Article 309 by the value of the thing stolen. Qualified theft under Article 310 is two degrees higher. See theft penalty in the Philippines and the theft penalties by amount table.
- Estafa follows the brackets of Article 315 by the amount of the fraud, and the total penalty cannot exceed 20 years. Estafa by postdated or bouncing check (paragraph 2(d)) has its own, heavier scale. See estafa in the Philippines and the estafa penalties by amount table.
Can theft or estafa be frustrated?
Theft cannot. In Valenzuela v. People (2007), the Supreme Court held that "there is no crime of frustrated theft": theft is consummated once the offender gains possession of the thing, even if he had no chance to dispose of it. Valenzuela did not deal with estafa.
What if the offender is a relative?
Article 332 applies to both crimes:
No criminal, but only civil liability, shall result from the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the following persons:
The persons listed are spouses, ascendants and descendants, relatives by affinity in the same line, the widowed spouse as to the property of the deceased spouse before it passes to another, and brothers, sisters and in-laws if living together. Strangers who take part are not exempt. In Carungcong v. People (2010), the Supreme Court held that the article "applies exclusively to the simple crimes of theft, swindling and malicious mischief" and not to estafa through falsification of public documents. See theft between family members.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Rico slips a phone from a store shelf into his pocket and is stopped at the exit. Nobody gave him the phone, so this is theft, and under Valenzuela it is already consummated.
Liza gives Ana bags on consignment: sell them within a month or return them. Ana sells the bags, keeps the money and says she never received them. The bags were handed over with a duty to return them or their price, so this may be estafa by abuse of confidence.
Ramon tells Jun he can get him a job abroad through a contact and collects a fee. There is no contact. The lie came before the payment, so this may be estafa by deceit. Other laws on recruitment may also apply.
Nilo borrows money from his cousin and cannot pay on the due date. He told no lie and held nothing in trust. This may not be estafa or theft at all; the cousin's remedy may be a civil case to collect.
See also the topic page on crimes against property.
When do you need a lawyer?
Talk to a lawyer before filing a complaint for theft or estafa, or as soon as you receive a subpoena. Whether the property was taken or handed over, whether there was a lie before the payment, and the exact amount decide which crime applies and the penalty, and some disputes turn out to be civil cases only. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.
Which provisions does this answer rest on?
- Article 308, Revised Penal CodeWho are liable for theft
- Article 309, Revised Penal CodePenalties for theft by amount
- Article 310, Revised Penal CodeQualified theft
- Article 315, Revised Penal CodeSwindling (estafa)
- Article 332, Revised Penal CodeRelatives exempt for theft, swindling, mischief
- Article 6, Revised Penal CodeConsummated, frustrated and attempted felonies
- Article 100, Revised Penal CodeCivil liability of the offender
Which Supreme Court rulings are relevant?
Frequently asked questions
What is the main difference between theft and estafa?
In theft, the offender takes the property without the owner's consent (Article 308). In estafa, the owner hands the property over, either in trust or with a duty to return it, or because of a lie told before or at the time, and the offender then defrauds the owner (Article 315).
Is keeping money that was entrusted to you theft or estafa?
Article 315 treats misappropriating or converting money, goods or other property received in trust, on commission, for administration or with a duty to deliver or return it as estafa by abuse of confidence. Qualified theft under Article 310 also mentions grave abuse of confidence. Which crime fits depends on how the person held the property and on the facts the court finds.
Is not paying a loan estafa?
Not by itself. Simply failing to pay a debt is not one of the means listed in Article 315. It can be estafa only if one of those means is present, such as a lie told before or at the time the money was given.
Is theft or estafa punished more heavily?
Both scales depend on value, as amended by Republic Act No. 10951. Theft follows Article 309 and is two degrees higher when qualified under Article 310. Estafa follows the brackets of Article 315, and estafa by bouncing check has a heavier scale. The penalty in a real case depends on the amount and the facts proven.
Can a family member be jailed for theft or estafa against a relative?
Article 332 says no criminal, only civil, liability results from theft, swindling or malicious mischief between spouses, ascendants and descendants, relatives by affinity in the same line, and brothers, sisters and in-laws living together. In Carungcong v. People (2010), the Supreme Court held that the rule does not cover estafa through falsification of public documents.
Can theft or estafa be frustrated?
Theft cannot. In Valenzuela v. People (2007), the Supreme Court held that there is no crime of frustrated theft. This page does not cover the stages of estafa.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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