Article 253 Spanish Criminal Code: Misappropriation

Article 253 of the Spanish Criminal Code punishes misappropriation: keeping for oneself or for a third party money, goods or any other movable property received on deposit, on commission or in custody, or under any other title carrying an obligation to deliver or return it. Unlike fraud, there is no deception at the outset: the property came into the hands of the accused lawfully. The article is applied to administrators, agents, builders who received advances, and lawyers or intermediaries who retained funds, and it is one of the offences most often reported by foreign owners of property in Spain. The penalties are those of articles 248 and 250 of the Criminal Code.

Wording of Article 253 of the Spanish Criminal Code

Elements of the offence

1. Property received lawfully under a title carrying an obligation to deliver or return it: deposit, commission, custody, agency, or a mandate of any kind.
2. An act of appropriation, which requires more than mere delay: the accused must have incorporated the property into his own patrimony or disposed of it as owner, or must deny having received it.
3. Loss to the person entitled. Where the sum was applied to the purpose agreed, however irregularly, there is no loss and no offence.
4. Intent to appropriate, existing at the moment of the act of disposal. A failure to return caused by insolvency, by a dispute over accounts or by a retention believed to be lawful is not this offence.

Defence strategy

Retention is not appropriation. The central argument is the distinction between failing to return and appropriating. A builder who received an advance and applied it to materials, an agent who set the sum against fees claimed, and an administrator who moved funds between accounts of the same principal have not incorporated the property into their own patrimony. The defence reconstructs the movement of the funds from the banking records, because the offence requires proof of where the money went and not merely proof that it was not returned.

A right of set-off or a disputed account. Where the accused asserted a right to retain the sum against fees, expenses or a counterclaim, the mental element is absent even if the right is ultimately held to be unfounded. Spanish courts direct such disputes to the civil jurisdiction. Documenting the claim as it was asserted at the time, in correspondence and in invoices issued before the complaint, is what distinguishes a genuine dispute from a retrospective justification.

The title under which the property was received. The offence requires a title carrying an obligation to deliver or return the specific property. Where the money was received as a loan, as part payment of a price, or as a contribution to a joint venture, the obligation is to repay a sum and not to return that property, and the breach is contractual. The characterisation of the original transaction is therefore examined before anything else, since it determines whether the criminal law applies at all.

Quantification and restitution. The four hundred euro threshold and the fifty thousand euro threshold of article 250 both turn on the amount, which must be established by evidence and not by the complainant’s assertion. Reducing the figure changes the bracket. Restitution before trial founds the mitigating circumstance of reparation and, in this offence more than in most, frequently removes the complainant’s interest in continuing, since the objective of the complaint was the recovery of the money.

• Property fraud and misappropriation
• Article 249: computer and payment fraud
• Article 250: aggravated fraud
• 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.