In business relationships, trust plays a fundamental role. When goods, funds or responsibilities are entrusted to a business partner, a minimum level of honesty and care is assumed on their part. There are, however, situations where this trust is breached, leading to patrimonial damage and the breakdown of business relations. Two offences regulated by the Romanian Criminal Code that sanction such conduct are abuse of trust and fraudulent management. This article compares the two offences: we will look at their legal definitions, similarities and differences, practical examples (loans not repaid, stock management, money collected on behalf of another, etc.), and the effects such acts have on commercial relationships. We will also refer to relevant legislation and case law from Romania and other European jurisdictions to give a broader perspective on the topic.
The offences of abuse of trust and fraudulent management are part of the category of offences against property, more specifically those involving a breach of trust placed in the perpetrator by the victim. Such acts are not only found in Romanian law but also in the law of other states. For instance, in France there is the offence of abus de confiance, punishable by up to three years of imprisonment (or seven years in the aggravated form) according to Article 314-1 of the French Criminal Code. In Germany, similar situations are classified as Unterschlagung (misappropriation of entrusted property, generally punishable by up to five years of imprisonment) or Untreue (breach of trust / fraudulent management in a broad sense, punishable by up to ten years of imprisonment) under §246 and §266 of the German Criminal Code. In what follows, we will focus on the definitions and provisions under Romanian law, then analyse the two offences comparatively and explain their practical implications.
What is abuse of trust?
Abuse of trust is an offence that essentially consists in the unlawful appropriation or use of another person’s property that has been entrusted for a specific purpose. The current Criminal Code defines abuse of trust as “the unjust appropriation, disposal or use of a movable property belonging to another, by the person to whom it was entrusted on the basis of a title and for a specific purpose, or refusal to return it”. In other words, if someone entrusts you with a movable asset (for example, an object, a vehicle or a sum of money to be used for a specific purpose) and you later use it for another purpose, unlawfully keep it or refuse to give it back, you are committing abuse of trust.
From a legal perspective, abuse of trust is regulated by Article 238 of the Romanian Criminal Code. The offence is punishable by imprisonment from 3 months to 2 years or a criminal fine. It is important to note that prosecution for abuse of trust is initiated only upon the prior complaint of the injured person. This means that the victim must file a complaint within the statutory period (generally 3 months from learning of the act and of the perpetrator) for the criminal investigation bodies to be able to start the investigation. In the absence of such a complaint, or if it is later withdrawn, the perpetrator can no longer be held criminally liable for this offence.
Examples: A typical case of abuse of trust is when you lend someone a chattel (for example, a piece of equipment or a vehicle) for a certain period, and when the agreed term expires, that person refuses to give it back. If the property was given for use and not as a transfer of ownership, retaining it unlawfully fulfils the elements of abuse of trust. Another example: the owner of a car entrusts it to a mechanic for repairs, and the mechanic uses the car for his personal trips, without the owner’s consent. The car was entrusted for the specific purpose of being repaired, and the mechanic’s behaviour – using it for personal purposes – is a classic example of abuse of trust. Similarly, if a company consigns goods to a distributor for sale and the distributor appropriates some of the goods or some of the money collected from customers instead of returning them to the owner, this can constitute abuse of trust.
It is useful to distinguish abuse of trust from other similar offences. Compared to theft, the main difference lies in how the perpetrator takes possession of the property: in theft, the property is taken without the owner’s consent, while in abuse of trust the property is voluntarily handed over by the owner to the perpetrator, to be used for a certain purpose. Abuse of trust is also different from fraud (swindling): in fraud, the perpetrator deceives the victim (through lies or fraudulent misrepresentations) in order to obtain the property, whereas in abuse of trust the victim entrusts the property legitimately (without being misled) and it is only later that the property is used against its assigned purpose. In other words, in abuse of trust there is no initial deceit – the victim trusts the perpetrator and voluntarily delivers the property – but that trust is subsequently betrayed.
What is fraudulent management?
Fraudulent management is another offence against property, which arises when a person entrusted with another’s property or interests manages them improperly or fraudulently, thus causing damage. According to Article 242 of the Romanian Criminal Code, fraudulent management consists in “causing damage to a person, in the course of managing or preserving his or her property, by the person who has or must have the duty to manage or preserve such property”. In other words, if you are responsible for someone else’s goods – for example, you are a manager, a custodian, a trustee or a guardian of another person’s assets – and through your actions or omissions you cause damage to the owner, breaching the duties you had, you may be criminally liable for fraudulent management.
Unlike abuse of trust, which generally concerns a specific asset or specific assets, fraudulent management often involves the administration of an entire estate or a universality of assets. The perpetrator has the position of manager or administrator of the victim’s property and acts contrary to the victim’s interests, intentionally or with bad faith, causing patrimonial damage. A simple example is that of a warehouse manager who fails to store the goods for which he is responsible in proper conditions (for instance, perishable goods are left in unsuitable conditions and degrade), thereby causing financial loss to the owner of the goods. This conduct falls within the scope of fraudulent management because the manager was under a duty to preserve the goods and prevent damage.
The Criminal Code punishes fraudulent management with imprisonment from 6 months to 3 years or a criminal fine, in its basic form. However, the law provides for aggravated forms of the offence, with heavier penalties, where the offender has a certain status or acts with a certain purpose. Thus, if fraudulent management is committed by a judicial administrator or a liquidator of the debtor’s assets in insolvency proceedings, or by their representatives, the penalty is imprisonment from 1 to 5 years. Also, if the offence is committed with the purpose of obtaining a patrimonial gain for the perpetrator or another person, the penalty range is imprisonment from 2 to 7 years. As with abuse of trust, the criminal action for fraudulent management is initiated upon the prior complaint of the injured party, meaning that the victim must file a complaint within the legal time limit for the perpetrator to be prosecuted.
Examples: Typical situations of fraudulent management arise where a person is entrusted with managing another’s assets and fails to perform that role in good faith. A common example is the company storekeeper: assume that an employee is responsible for managing stocks and keeping inventory. If that person fails to keep proper records, sells goods “off the books” or does not deliver the money collected from customers to the company, thereby causing stock shortages and financial loss, his conduct may constitute fraudulent management (he has caused damage to the company through improper management of the assets entrusted to him). Another example: a company director who uses company funds for personal expenses and thereby damages the shareholders’ interests commits fraudulent management. Likewise, a liquidator who sells the debtor company’s assets to related parties at derisory prices, reducing the chances of creditors recovering their claims, may be guilty of aggravated fraudulent management due to his special status. All these examples have in common the existence of trust placed in the perpetrator – to manage the property in the owner’s interest – and the breach of that trust through actions that cause damage.
Similarities between abuse of trust and fraudulent management
Although abuse of trust and fraudulent management are distinct offences, they show many similarities, which is why they are sometimes confused in practice. The main common points are the following:
- Common protected interest: Both offences protect property relations based on trust. Abuse of trust and fraudulent management are both offences against property and presuppose a breach of trust granted by the victim to the perpetrator. In both cases, the offender infringes the minimum good faith and loyalty expected in commercial relationships.
- Precondition – entrustment of property: Another common element is that, for both offences, the property must initially have been handed over to the perpetrator by the victim on a lawful basis. In the absence of a legal relationship in which the property is entrusted voluntarily to the perpetrator, there can be no abuse of trust or fraudulent management (but other offences, such as theft, may be engaged). Thus, in both offences the victim legitimately grants possession or authority over the property, and the offender later abuses that position of trust.
- Nature of the damage and of the act: In both offences, the result is a patrimonial loss to the victim, consisting in the loss of the asset, a decrease in its value or the loss of money. The perpetrator acts intentionally (with direct or indirect intent) to infringe the proprietary rights of another. Both offences are result offences, with the damage being an essential element: without an actual loss, the conduct would not reach the level of criminal gravity. Neither abuse of trust nor fraudulent management involves physical coercion or violence; the method typically consists of abusive acts, concealment or omissions in the management of assets.
- Prior complaint and possibility of settlement: Both abuse of trust and fraudulent management are offences for which prosecution is conditional upon a prior complaint by the victim. Thus, in both cases, the victim plays a decisive role: if he or she does not file a complaint in time (or withdraws it), the criminal proceedings will not continue. This system encourages compensation and settlement of disputes in the commercial sphere. In practice, if the perpetrator compensates the victim (by returning the property or paying the value of the loss) and the victim is satisfied, the latter may withdraw the complaint, thereby avoiding a lengthy criminal trial. In that sense, these offences are “private complaint offences”, giving the parties an additional chance to resolve the dispute amicably.
- Business and commercial context: Both offences frequently arise in the business environment and in commercial transactions. Situations of abuse of trust or fraudulent management may appear between contracting parties, partners, agents, sales representatives, administrators of other persons or entities, etc. In general, anywhere one party places its property or interests in the hands of another, there is both the opportunity and the risk that the trust will be abused. Legislation and case law confirm that these offences aim to sanction reprehensible conduct which would otherwise undermine legal certainty in commerce and the safety of business relations based on trust.
Differences between abuse of trust and fraudulent management
Despite the common elements, there are clear differences between the two offences, relating to the type of property entrusted, the way the offence is committed and the status of the perpetrator. The main differences are:
- Nature of the property entrusted: Abuse of trust presupposes the entrustment of one or more specific, individualised items to the perpetrator. For example, a particular machine is lent, a specific amount of money is handed over for a given purpose, a specific vehicle is given to be used, and so on. By contrast, fraudulent management usually concerns the entrustment of a universality of assets or an estate (or part of it). In other words, abuse of trust refers to a particular item (or clearly specified items), whereas fraudulent management concerns a broader pool of assets and values over which the perpetrator has powers of administration. To illustrate: if you entrust someone with your car and that person appropriates it, the offence is abuse of trust; if you entrust someone with the management of your entire business (including assets, stock, funds) and they manage that business fraudulently, the offence is fraudulent management.
- Position and status of the perpetrator: In abuse of trust, the perpetrator can be any person who receives a property for safekeeping, temporary use or for a particular purpose (for example, a friend to whom you lend your car, a neighbour who stores an object for you, a collaborator who receives equipment to use for your project). There is no need for the perpetrator to have a particular official status; it is enough that they have received the property under a non-transfer-of-ownership title (such as a loan for use, a deposit, a mandate, etc.). In fraudulent management, the perpetrator typically holds a more formal position: he or she is a manager, administrator or trustee of the victim’s assets. For instance, this may be a company director managing the shareholders’ property, a tutor managing a minor’s estate, a liquidator administering the debtor’s assets, etc. The law expressly provides for special statuses that aggravate fraudulent management (judicial administrator, liquidator, their representatives). However, fraudulent management can also be committed by a person without any formal title, where he or she is entrusted with managing another’s assets by a civil contract. The essential point is that in fraudulent management the perpetrator has a general responsibility to take care of another’s property, not just temporary possession of a specific item.
- Modus operandi – the illicit conduct: In the case of abuse of trust, the typical conduct is either appropriating the property (taking ownership of it, although it belongs to another), disposing of it (for instance, selling or pledging it as if it were one’s own), using the property unlawfully (using it for a purpose other than that agreed) or refusing to return it at the agreed time. Essentially, the perpetrator behaves like an owner with respect to another’s property, in breach of the terms of entrustment. In fraudulent management, the illicit conduct is broader: any action or omission whereby the person entrusted with managing the property causes damage by exceeding or disregarding their mandate may constitute the material element. This may involve mismanagement (gross negligence in safeguarding or preserving the assets, failure to perform necessary acts, failure to collect receivables, failure to insure the assets, etc.) or fraudulent management acts (misappropriating managed funds, selling managed assets in one’s own interest, making unnecessary expenditures that impoverish the estate). In other words, in abuse of trust the wrongful conduct directly concerns the entrusted property (taking it, using it, refusing to return it), while in fraudulent management the wrongful conduct may also consist in omissions or management decisions that are contrary to the owner’s interests and cause damage.
- Result and purpose of the offence: Both offences result in damage to the victim, but there is a nuance concerning purpose. In abuse of trust, the law does not require a specific purpose (it is sufficient that the conduct is intentional and causes damage). In fraudulent management, the law provides an aggravated form where the offence is committed for the purpose of obtaining a patrimonial benefit (practically, an unlawful gain for the perpetrator or another person). If a manager commits negligent acts and does not derive any advantage, the simple form applies (up to 3 years of imprisonment); if he deliberately commits acts in order to obtain money or other benefits, the higher penalty range applies (up to 7 years). For abuse of trust there is no distinct aggravated form based on the purpose of obtaining an illicit gain, although in practice the perpetrator almost always seeks to retain the property or to obtain an advantage.
- Penalty ranges: As follows from the legal texts, the two offences have different penalty regimes. Abuse of trust is generally less severely punished: the maximum penalty is 2 years of imprisonment (or a fine), reflecting the usually more individual and limited scope of the damage. Fraudulent management has potentially higher penalties, especially in its aggravated forms: from a maximum of 3 years (simple form) up to 5 years (if committed by a judicial administrator or liquidator) and up to 7 years of imprisonment (if committed for a material gain). This suggests that the legislature sees fraudulent management as potentially causing more serious harm or posing a higher social danger (for example, affecting the interests of multiple parties – such as the creditors of a company, all the shareholders, etc. – or involving larger amounts), while abuse of trust typically affects a single person in a specific transaction. In practice, however, the concrete gravity depends on the amount of the loss and the circumstances: there may be abuse of trust with very large losses and fraudulent management with relatively minor losses.
Practical examples and relevant scenarios
To illustrate more clearly how these offences arise in reality, we will go through several concrete examples, inspired by case law or common business scenarios:
- A loaned item that is not returned: Person A lends an object (for example, a piece of equipment or a vehicle) to person B for a fixed period. When the term expires, B refuses to return it. If the property was given for use and not as a transfer of ownership, B’s refusal to return it fulfils the elements of abuse of trust. Example: X lends Y a welding machine until a job is completed; at the end, Y refuses to give it back and keeps it as if it were his own. X can file a complaint for abuse of trust.
- Using a good for a different purpose than agreed: A movable asset is handed over for safekeeping or a specific purpose, but the person entrusted with it uses it in his own interest, causing damage or unlawful wear. A real example: the owner of a car leaves it with a mechanic friend for repairs, but the mechanic uses the car daily for personal travel and damages it. The car was entrusted for repair, and the mechanic’s use of it for his own purposes amounts to abuse of trust: he used the property in a way not agreed and contrary to the owner’s interest.
- Money collected on behalf of another, not remitted: It is common in commerce for a person (agent, representative) to collect money from third parties on behalf of someone else. If the agent does not remit the sums collected to the beneficiary but appropriates them or “loses” them through improper management, criminal liability may arise. Example: a sales agent collects from customers the price of goods delivered and is supposed to deposit the money with the company’s cashier. Instead, he uses a part of the money for personal purposes and does not pay it over to the company. His conduct – secretly appropriating part of the sums – fulfils the elements of fraudulent management, as the agent had the function of managing those sums on behalf of the company. The company can file a complaint against him.
- Fraud in stock management: A storekeeper or stock manager has a duty to ensure the integrity and proper recording of the goods he manages. If, intentionally, he breaches those duties and causes shortages, the offence is engaged. Example: the manager of a warehouse leaves perishable goods in unsuitable storage conditions, so that a significant quantity spoils and must be discarded. This causes a financial loss to the owner of the goods, resulting from the failure to conserve the assets – conduct that constitutes fraudulent management (even if the manager did not gain personally, he acted with disregard for the property of another).
- Diverting company funds: In practice, an administrator may withdraw money from company accounts or use company funds for personal expenses without the shareholders’ approval, causing damage to the company. This is an example of fraudulent management because the administrator had a duty to manage the funds in the company’s interest, not his own. For instance, an administrator who transfers money from one company he manages to another company he controls, to the detriment of the first company and its creditors, may be found guilty of fraudulent management, as he jeopardises the patrimonial interests of those he represents.
- Assets disappearing from the estate: In insolvency proceedings, a former director of the debtor company may be accused of “losing” or disposing of part of the company’s assets, so that at the time of the creditors’ meeting valuable goods are missing from the estate. One real case involved the disappearance of thousands of tons of goods from a company’s reserves, with a loss of millions of lei – the conduct was classified as fraudulent management, as damage had been caused in the management of another’s property. Even if in that particular case the defendants were eventually acquitted (due to lack of evidence or limitation issues), the scenario illustrates the typical pattern: persons entrusted with taking care of the company’s property cause significant loss through illicit acts or omissions.
The above list is not exhaustive but shows the variety of situations that may constitute abuse of trust or fraudulent management. Whether we are dealing with physical assets (cars, equipment, stock) or fungible assets (money, funds in accounts), any breach of entrusted duties towards the owner, resulting in damage, may fall within the scope of the criminal law.
Effects of these offences in commercial relationships
Abuse of trust and fraudulent management have consequences not only for the individuals directly involved but also for the general business climate. First, when such acts occur, the business relationship between the parties is severely damaged or ends altogether. A business partnership built on mutual trust can be destroyed by discovering an abuse: the injured party loses confidence and will probably end any future cooperation with the person who betrayed that trust. The perpetrator’s reputation also suffers; in the business community, news spreads quickly about someone who has defrauded partners, and that person or their company will have difficulty finding other partners willing to collaborate.
From a legal perspective, the main effect of these offences is criminal liability for the perpetrator, with all related consequences: the risk of imprisonment or a criminal fine, a criminal record, possible precautionary measures over their assets to secure recovery of the loss, etc. In addition, the victim has the right to join the criminal proceedings as a civil party and claim damages for the loss suffered. The criminal court may order the perpetrator to fully compensate the damage, either by returning the property (if still possible) or by paying its value and any additional losses (interest, loss of profit, moral damages where applicable).
It is important to note that, often, when the loss is recovered or the parties come to an agreement, the conflict may be resolved without a conviction. As already mentioned, both abuse of trust and fraudulent management are offences prosecuted upon prior complaint. This means that up to a certain point the victim can influence the outcome: if they recover their loss and no longer have an interest in the perpetrator’s punishment, they may withdraw the complaint, which leads to the termination of the criminal proceedings. In practice, many such commercial disputes are settled amicably: the perpetrator returns the assets or pays damages, and the parties decide not to pursue criminal charges. This does not mean that the act is not serious, but that the law encourages repair of damage and avoidance of lengthy and costly judicial proceedings when possible.
On the other hand, the existence of these offences and the risk of criminal sanctions also have a preventive role in the business environment. Knowing that abuse of trust and fraudulent management are punishable, persons entrusted with others’ property or the management of businesses are theoretically discouraged from abusing their position. Companies and individuals likewise adopt additional safeguards: they include strict contractual clauses, require guarantees, check partners’ creditworthiness and conduct audits, precisely to prevent such abuses. When these mechanisms fail, however, criminal law remains the last resort for restoring the trust that has been breached.
More broadly, legal doctrine stresses that criminalising such acts is meant to protect the legal order of business relations and the minimum level of honesty required in civil and commercial transactions. It has been said that abuse of trust and related offences protect “that minimum of probity without which patrimonial relationships cannot form, develop and consolidate normally”. In other words, they sanction serious breaches of reciprocal trust, which is the cement that holds contracts and business partnerships together. When such acts become frequent and go unpunished, the entire market suffers from increased mistrust, higher transaction costs (more verification, insurance and guarantees) and reduced willingness to enter into cooperation.
Finally, a criminal conviction for abuse of trust or fraudulent management may have long-term consequences for the offender’s professional career. For example, a company director convicted for such an offence may be disqualified from acting as a director of other companies or forbidden to hold certain positions (the court may impose, as a supplementary penalty, a ban on exercising the profession or holding the function in the context of which the offence was committed, for a specified period). Thus, the offender risks not only immediate punishment but also loss of professional credibility and future business opportunities.
Frequently Asked Questions (FAQ)
What does the law provide for abuse of trust and fraudulent management?
Answer: Abuse of trust is regulated by Article 238 of the Romanian Criminal Code, and fraudulent management is regulated by Article 242 of the same Code (Law no. 286/2009). Article 238 provides that unjust appropriation, disposal or use of another’s entrusted property, or refusal to return it, is punishable by imprisonment from 3 months to 2 years or a fine. Article 242 provides that causing damage to a person in the management of his or her property is punishable by imprisonment from 6 months to 3 years or a fine, with aggravated forms punishable by up to 5 years (if the offender has a special status, e.g. liquidator) and up to 7 years (if committed for a material gain). In both cases, the criminal action is initiated upon the prior complaint of the injured person.
Within what time limit must the complaint be filed, and what happens if it is withdrawn?
Answer: The prior complaint must be filed within 3 months from the date when the injured person learned of the offence and the identity of the perpetrator. This time limit is set by the Criminal Procedure Code and applies to both offences discussed here, since both are conditional upon a prior complaint. If the victim does not file a complaint within this period, the right to do so is time-barred and the authorities can no longer start criminal proceedings. If the victim has filed a complaint but later withdraws it (by an explicit written declaration), the criminal case is terminated, as the withdrawal extinguishes the criminal action. Withdrawal of the complaint has this effect regardless of the stage of the proceedings (even if the case is already in court). The victim thus has control: they can initiate prosecution, but also have the legal possibility to stop it (usually after recovering the loss or reaching a settlement). One must bear in mind, however, that withdrawal of the complaint is irreversible: once withdrawn, a new complaint cannot be lodged for the same act.
If the perpetrator returns the property or repays the loss, do they still incur criminal liability?
Answer: The mere return of the property or payment of the damage does not automatically extinguish criminal liability, but in practice it often leads to the end of the case through settlement or withdrawal of the complaint by the victim. Since both offences require a prior complaint, if the damage is fully repaired and the victim is satisfied, he or she may decide not to pursue criminal proceedings. Under Romanian law, reconciliation between the parties removes criminal liability for abuse of trust and fraudulent management (they are among the offences for which reconciliation is allowed, up to the reading of the indictment in court). In practice, once the victim recovers the property or its value and signs a settlement or a withdrawal statement, the case will be closed or the court will order the termination of proceedings. Thus, yes, if the perpetrator fully compensates the damage and the victim forgives the act (by withdrawing the complaint), the perpetrator may avoid conviction and a criminal record.
What is the difference between fraudulent management and embezzlement?
Answer: Embezzlement (Article 295 of the Criminal Code) is a related but distinct offence, consisting in the appropriation or use, by a public official or employee, of money or assets they manage in the performance of their duties, in order to obtain a benefit. In short, embezzlement requires that the perpetrator is an employee or official of the injured entity (for example, a cashier or director who misappropriates company funds). In contrast, in fraudulent management, the perpetrator may be a person outside the entity, entrusted with the management of assets by a civil contract (so not necessarily an employee of the victim). Another criterion: in embezzlement, the perpetrator is a public or private official of the victim entity, whereas in fraudulent management the perpetrator can be any person entrusted with another’s property. By way of example, if an administrator of an owners’ association misappropriates the association’s money, their status as a person charged with managing those funds may lead to legal classification as embezzlement rather than fraudulent management. In broad terms, both offences involve diversion of funds managed by the perpetrator – the difference lies in the perpetrator’s legal status and relationship with the victim. The penalties for embezzlement are higher (imprisonment from 2 to 7 years in the basic form, with possible aggravations where the loss is large), reflecting the greater seriousness of betraying one’s own organisation.
How does abuse of trust differ from theft or fraud?
Answer: The key difference lies in how the perpetrator initially obtains the property and the means used. In theft, the property is taken without the owner’s consent (usually secretly or by force), whereas in abuse of trust the owner voluntarily entrusts possession of the property to the perpetrator (under a contract or agreement). The wrongful act in abuse of trust occurs later, when the perpetrator decides not to return the property or to use it contrary to the agreement. With regard to fraud (swindling), this involves deceit – the victim is misled through lies or fraudulent misrepresentations to hand over the property. In abuse of trust, there is no deceit at the time of delivery; the victim knowingly and willingly hands over the property on the basis of legitimate trust. For example, if someone falsely claims they will invest your money in a project to persuade you to hand it over, the offence is fraud; if you legitimately give someone money for a specific purpose (without being misled) and that person later uses it for another purpose or refuses to return it, the offence is abuse of trust. Thus, abuse of trust differs from theft because the initial possession is lawful, and from fraud because there is no initial deception.
Can a legal entity (company) be criminally liable for these offences?
Answer: Yes, under Article 135 of the Criminal Code, legal entities (companies, organisations) can be held criminally liable for offences committed in the course of their activity or in their interest or on their behalf. In practice, however, abuse of trust and fraudulent management are usually committed by natural persons, not by companies as such. Nevertheless, there may be situations in which the company itself is indicted: for example, if a management decision or corporate policy leads to systematic misappropriation or fraudulent management of clients’ property, and it is shown that the company acted through its bodies or representatives, the company can be charged alongside the individual. Penalties for legal entities include a criminal fine and possibly complementary sanctions (suspension of activities, dissolution, and so on). Generally, however, the criminal liability of the legal entity complements, rather than replaces, the liability of the individual who actually carried out the acts.