What is Fraud by Omission and When is it Committed?

Fraud by omission is one of the most complex and lesser-known concepts in Spanish Criminal Law. However, it has great practical relevance, especially in real estate, financial, and business sectors

What is fraud by omission?

Fraud by omission is committed when a person, having an obligation to inform, conceals relevant information with intent for profit, causing economic harm to another person. It is regulated under article 248 of the Criminal Code.

When is fraud by omission considered a crime?

What elements does the law require for a fraud conviction?

Fraud, regulated under article 248 of the Criminal Code, requires five essential elements:

• Sufficient deception that induces error.
• Essential error in the victim.
• Act of patrimonial disposition.
• Intent for profit by the perpetrator.
• Economic harm to the victim.

In fraud by omission, the deception does not occur through a lie, but through the willful silence of someone who has the legal duty to inform.

Is remaining silent enough to commit a crime?

No. Silence is only criminal if the subject has a duty to act. This duty arises when there is a prior legal relationship, such as in

What are the criminal consequences of fraud by omission?

Fraud by omission is punished with the same penalties as any other form of fraud, since article 248.2 of the Criminal Code does not distinguish between active deception and deception by omission. In both cases, the punishment will depend on whether it is basic fraud or aggravated fraud.

What penalties does the Criminal Code contemplate for fraud by omission?

Article 248 of the Criminal Code defines fraud in its basic form, and establishes its penalty:

«Those who, with intent to profit, use sufficient deception to cause error in another, inducing them to perform an act of disposition to their own or another’s detriment, shall be punished with a prison sentence of six months to three years.»

This includes fraud by omission, provided that it is proven that the silence was willful, that the subject had a duty to inform, and that error, patrimonial disposition, and economic harm occurred.

The specific sentence within that range will depend on factors such as:

• The amount defrauded.
• The number of victims.
• The trust betrayed.
• Criminal recidivism.

What are the aggravated penalties for fraud by omission?

Article 250 of the Criminal Code contemplates the aggravated aggravated fraud.

How is a fraud by omission case defended?

What strategies can a defense attorney follow?

The defense attorney in these cases must focus on dismantling the typical elements of the crime. Some key strategies include:

• Denying the existence of a legal duty to inform: if no relationship of trust, management or representation existed, there is no relevant omission.
• Demonstrating that there was no sufficient deception: any error is not enough, it must be serious, relevant and decisive.
• Alleging absence of intent for gain: if no economic benefit was sought, one of the key elements of the offense is missing.

What evidence is fundamental?

In fraud by omission cases, documentary and testimonial evidence that proves the existence (or not) of that duty to inform is crucial. It is also key to demonstrate exactly what the victim knew at the time of making the detrimental economic decision.

Can there be civil liability in addition to criminal liability?

Yes. A conviction for fraud implies not only imprisonment or fine, but also the obligation to compensate the victim. Therefore, a good fraud specialist attorney not only defends on the criminal level, but also provides guidance on civil strategy to minimize economic damages.

When can a fraud specialist attorney help you?

A fraud specialist attorney must analyze c