Article 251 Spanish Criminal Code: Fraudulent disposal of property and simulated contracts

Article 251 punishes three forms of property fraud: disposing of a thing while falsely claiming a power of disposal, disposing of it while concealing an encumbrance or disposing of it twice, and entering into a simulated contract to the detriment of another.

Wording of Article 251 of the Spanish Criminal Code

Elements of the offence

1. In number 1, the false claim of a power of disposal which is lacking, either because it was never held or because it has already been exercised, together with an act of alienation, encumbrance or lease.
2. In number 2, an act of disposal concealing an encumbrance, or a second encumbrance or alienation before the definitive transfer.
3. In number 3, a simulated contract, that is, one whose declared content does not correspond to the real will of the parties.
4. In all three, detriment to the acquirer or to a third party, and intent covering the falsity or the concealment.

Defence strategy

Absence of detriment. The three forms require detriment. Where the acquirer obtained the thing free of encumbrance, where the encumbrance was cancelled or where the price was returned, the objective element fails and the matter belongs to the civil jurisdiction.

Knowledge of the encumbrance. Number 2 requires concealment. Registry information which was publicly accessible, a certificate produced before the deed or the intervention of a notary and of a bank in the transaction are elements which exclude the concealment and, with it, the intent.

Simulation as distinct from a lawful indirect transaction. Number 3 requires a simulated contract to the detriment of another. Transactions structured for reasons of taxation, of succession or of business organisation are not in themselves simulated, and the distinction is habitually resolved by expert accounting and documentary evidence.

Boundary with the offence of Article 248. Where the conduct consists of deception inducing a transfer of assets, the ordinary fraud of Article 248 applies. Identifying the correct provision matters, since the frames and the aggravations of Article 250 are substantially different.

• Article 248 CP: fraud
• Article 252 CP: misappropriation by an administrator
• Property fraud defence in Spain
• Fraud defence in Alicante

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.