Variation Four is Variation Two with a twist. The “twist” is that Chipotle's cashier knew what Zack was pulling off but, for for her own reason, raised no issue concerning the deception. So what, indeed, is Zack guilty of, if anything?
It is obvious that Zack will not be charged with theft, but is he technically guilty of theft anyway? To answer that question, we return to the basic definition of theft. As previously mentioned, “theft” in New Jersey means to unlawfully take or exercise control over property belonging to someone else with purpose to deprive the other person of that property. So let's parse it.
Did Zack take or exercise control over his steak salad? Sure. And he enjoyed every mouthful. Did he have a purpose to deprive Chipotle of the salad? We will answer that question in the affirmative also, although nuances of the word “purpose” exist that go beyond this exercise. So what have we not considered? What we left out was the word “unlawfully.”
Clearly Zack intended to commit an offense. And Zack (if he took the trouble to think through the situation) would conclude that he did commit an offense. But is it an offense when the supposed victim silently ratifies Zack's actions?
Theft Lawyers in New Jersey believe that Zack's activities do constitute an offense. To be sure, under these circumstances, Zack will never be charged. But that is not what we asked.
In order to understand why Zack's activities constituted an offense, it is necessary to understand the difference between civil law and criminal law. In the civil law context, Zack did not commit an offense against Chipotle, since Chipotle, for its own reasons, silently ratified Zack's trickery. But criminal law applies a different test. In the criminal law context, the issue is not whether Zack committed an offense against Chipotle. The test, rather, is whether Zack commited an offense against the State.
Consider this analogy: George punches his wife, Gloria. The police investigate. For whatever reason, Gloria wants to not press charges. Gloria may have civil recourse against George. Gloria may have no intention of pursuing that recourse. But in a criminal context, the dispute is not between George and Gloria. The dispute, rather, is between George and the State. So although Gloria may be in a forgiving frame of mind, her generosity does not prevent the State from vindicting its own interest. Put differently, George's punch had two victims. Gloria was only one of those victims. Gloria cannot prevent the State from vindicating its separate interest.
Returning to Zack's steak salad, Chipotle's silent ratification of Zack's action does not deprive the State of its options to prosecute Zack.