The Problem of the Small Cheat

By: Donald L Swanson

Q. “Your boss is quite a card player, Kelly. How does he do it?”
A. “He cheats.”

–From, “The Sting.”

An essay [Fn. 1] explores the cheating exploits of a London-area grocer from back in the early 1600s. In particular, it explores this question:

–How did he get away with it?

Francis Newton

Francis Newton plied a wholesale grocer’s trade in and around London during the early 1600s. Newton purchased imported foodstuffs, such as spices, sugar, and dried fruits, from overseas merchants, and he purchased dry goods like starch from local manufacturers. He then resold such goods to smaller retail grocers, to regional suppliers, and directly to retail customers.

Newton was an ordinary grocer, selling the same wares as other grocers in his vicinity. His trading partners were loyal.

Newton Cheated

But Newton cheated. Here’s an example of how he did it:

• Newton had a large, equal-beam balance scale (like the scales of justice) suspended from the ceiling of his shop, with a large pan hanging below each side.
• Newton worked the scale like this: he put wares to be weighed in the pan on one side, then put standardized weights on the other pan, until they balanced.
• Newton cheated by distracting a seller of goods and inserting a twelve-pound weight into a bag nailed to the bottom of the pan holding the weights—thereby, cheating the seller by twelve pounds.

In a variation on the same cheat, Newton turned the “hooke” at one end of the beam from which a pan hung to lengthen the beam on that end, making the balance uneven and the scale’s measures untrue.

Getting Away with Cheating

Newton got away with cheating for many years. How could this happen?

–Small Cheats

All of Newton’s cheats were small. So, any effort to discover a cheat would face difficulties.

When Newton did get caught, he could always say, “We made a mistake.” And customers were inclined to accept that explanation, especially when Newton reimbursed the mistaken amount. After all, “mistakes happen.”

–Customers and Suppliers Who Trust

Newton’s trading partners trusted him. His customers and suppliers, for example, took on faith that Newton’s balance beam produced accurate measures of weight.

Provincial retailers ordered wares from Newton by letter and rarely came to London. Many had limited access to scales and had to pay a fee for using someone else’s. So they had to trust that the weight of the goods they received were as Newton claimed.

Even those who dealt with Newton in person rarely made an effort to verify the weighing of their goods.

All of these customers made for easy pickings.

–Those Who Verify

For buyers and sellers who paid attention, however, Newton didn’t even try to cheat. Newton played straight, for example, with customers who routinely reweighed their wares. As a result, those customers could later testify to Newton’s honesty and that he never cheated them.

But when Newton didn’t know of a customer’s efforts to verify, he got caught. One customer, for example, realized that barrels she sold elsewhere weighed more than the same barrels she sold to Newton. Then, she started paying attention, noticed that Newton manipulated his beam, and confronted him about it. Newton paid restitution and suffered no ill effects.

Newton even got away with cheats when he had no excuse. Here are two examples.

1.  One customer caught Newton fiddling with the hook of the scale and demanded a correction. Newton refused, saying the beam is too short on that side. The customer scoffed, took her business elsewhere, and gossiped about what happened. But Newton suffered no hit to his reputation from this and continued using the same scam with others.

2.  Newton got caught, again, in the same scam. A suspicious customer set a trap:

(i) she sent containers to a Newton competitor for weighing, letting the competitor in on the trap,
(ii) the competitor weighed the containers, and
(iii) then, she delivered the containers to Newton’s shop and left before the containers were weighed.

The trap worked: Newton’s weight was eight pounds less than the the competitor’s. So, the customer raised a fuss, Newton made restitution, and nothing more happened. Even this same customer continued doing business with Newton because of his good prices. Presumably, Newton never tried to cheat her again.

Editorial Conclusion

Small cheats were a problem for London-area businesses during the early 1600s. And small cheats are, presumably, a problem in today’s business world as well. Today, as back then, small cheats are difficult to discover, and any discovery can be skirted by admission of a “mistake” and making the error right.

–A Lesson

A primary lesson from Francis Newton is this: “Buyer beware” is, and always has been, a wise adage. Those who don’t or can’t verify are susceptible to being victimized by the small cheat. But those who do beware . . . and especially those who have a reputation for being aware . . . are unlikely to be victims of the small cheat.

–In Mediation

In the world of mediation, the small cheat is particularly significant. The mediator and the parties expect candor from one another. But even in mediation, the small cheat can be in play.

Certain small cheats are common and, also, insignificant. Parties will bluff and bluster with: “That offer is completely unacceptable!” or “We’ll never pay more than $XXX – ever!” Such statements are commonly heard puffs during mediation. They are recognized as such, and are rarely taken at face value by anyone.

But small cheats can be crucially deceptive. A party falsely declaring the existence of a crucial fact: now, that’s a problem. On such things, candor and accuracy are essential.

So, here are some questions for dealing with the small cheat in mediation:

• What is the guard against deception in mediation?
• Is there a remedy for deception in mediation?
• How can a mediating party apply the “beware” adage in mediation?

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Footnote 1. The essay is by Emily Kadens, Professor of Law, Northwestern Pritzker School of Law, Northwestern University. The essay is titled, “Cheating Pays,” and is published at 119 Columbia Law Review 527 (2019). Unless otherwise noted, all information in my article is from this essay by Prof. Kadens, usually in her own words. Other publications by Prof. Kadens bear such fascinating titles as, “The Last Bankrupt Hanged” and “The Pitkin Affair: A Study of Fraud in Early English Bankruptcy.”

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