Would this scheme work?

Having just finished Lock, Stock, and Two Smoking Barrels I’ve taken to wondering about a con one of the main characters suggests early on. Essentially, he proposes that they advertise some form of sex toy (a dildo, I think) in various gay men’s interest magazines, porn catalogs, that sort of thing. Those interested in buying their product will send them a check for 20 pounds made out to a company they’ve given a relatively innocuous name, something like “Joe’s Sporting Goods”. After recieving the check they wait a few days and send a form letter back to each customer, saying “We’re sorry, but we’re out of stock and unable to fill your order at the present time. We’ve included a check to refund your money.” The trick to this whole affair is that the check will be in a second, extremely lurid company’s name, “Ass ticklers anonymous” or something equally suggestive and offensive. The con men were banking on the fact that the vast majority of people won’t cash the check, due to their reluctance to let anybody wonder about their hobbies.

Assuming the scheme had a decent turnaround, and assuming that every suggestively named check returned to the unwitting victims was authentic, is there any way the con men could be prosecuted for a crime, or is it all perfectly (if unethically) legal?

(Disclaimer: I’m not asking for legal advice. ^^)

In the US, it would be illegal. It’s fraudulent because the con men have no intent of honoring their offer.

Anyway, many consumer fraud statutes have pretty vague definitions of “unfair business practices.” Broad enough to encompass this sort of scam.

Wouldn’t it be very difficult to prosecute, however? No damage has technically taken place, and if it came down to it I suppose it wouldn’t be hard to rent a warehouse and create some paperwork to legitimize the lack of stock.

Is there actual legal precedent in the US or EU where a business or individual was prosecuted for not intending to hold his end up, even if nobody came to any financial harm? Since the customer doesn’t sign anything when he ships his order form, there shouldn’t shouldn’t be any contractual obligation, especially since his money is (technically) being refunded.

Hell, if you streamlined the response letter handling enough, you could probably turn a profit on the float by simply automatically sending refund checks two months after receiving payment, though it would be harder at current interest rates. What you were “selling” could be anything, provided the accrued interest on the money covered the processing expenses. But it’s illegal, as observed, and you’ll eventually get shut down if you do it in a big way.

Considering how easy it is to deposit checks in an ATM rather than deal with a live teller, this scheme may be something that was invented in the dim past before reality got in the way.

I believe any such scam would be relatively short lived. The statutes concerning mail fraud are pretty broad, and can be persued quite agressively. Such an opperation would have to be short term, because somebody is going to blow the whistle.
JMO of course.