Article 248 Spanish Criminal Code: Fraud: the Basic Offence

Article 248 of the Spanish Criminal Code contains the basic offence of fraud: with intent to gain, using deception sufficient to produce error in another, thereby inducing that person to make a disposition of property to his own or another’s detriment. The same article fixes the penalty at six months to three years, reduced to a fine of one to three months where the amount does not exceed four hundred euros, unless one of the aggravating circumstances of article 250 applies or the offender has three previous convictions of the same nature. Article 249 contains the equivalent computer and payment-instrument modalities.

Wording of Article 248 of the Spanish Criminal Code

Elements of the offence

1. Deception preceding or concurrent with the disposition of property, sufficient to produce error in a person of ordinary prudence placed in that specific relationship.
2. Error in the victim as a direct consequence of the deception.
3. A disposition of property made by the deceived person himself, which distinguishes fraud from theft and from misappropriation.
4. Loss of property and intent to gain, with the intention not to perform existing at the moment of the disposition and not arising afterwards.

Defence strategy

Subsequent intention: breach of contract is not fraud. This resolves the majority of commercial cases. Where the intention not to perform arose after the contract was made, the conduct is a civil wrong. Evidence of genuine efforts to perform, of partial payments, of works actually commenced or of a supervening cause such as a planning refusal or an insolvency establishes that the deception did not precede the disposition, and Spanish courts direct such disputes to the civil jurisdiction.

Sufficiency of the deception and the victim’s own diligence. The deception must be sufficient, assessed objectively and in context. Where the injured party made no land registry search, ignored written warnings, contracted outside any professional channel or accepted a return manifestly out of proportion to the market, the courts have held the deception insufficient. This argument requires the documentary trail of what the injured party was told and of what was available to him at the time.

Quantification and the four hundred euro threshold. The amount determines whether the offence is minor and punished by a fine, and whether article 250 applies at all. The defence contests each item: sums never received, amounts already returned, duplication between claimants and figures resting on unverified estimates. Reducing the total below a threshold changes both the procedure and the penalty.

Restitution before trial. Return of the sums founds the mitigating circumstance of reparation in article 21.5 and, in this offence more than in most, frequently removes the injured party’s interest in pursuing the case, since recovery of the money was the object of the complaint. Combined with an agreed disposition and the one third reduction, it is the ordinary route to a fine or a suspended sentence.

• Article 249: computer and payment fraud
• Article 250: aggravated fraud
• Fraud lawyer in Alicante
• Spanish-language entry

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.