Can Criminal Law punish you for not returning money that belongs to you? This apparently paradoxical question has been resolved on multiple occasions by the Supreme Court. When it comes to sale, loan, or civil resolution contracts, the boundary between breach of contract and misappropriation may seem blurred.
What does it mean to misappropriate something?
The crime of misappropriation: essence of the criminal offense
Article 253 of the Criminal Code defines that whoever appropriates movable property or money that they have received by virtue of titles such as deposit, commission, administration or similar commits this crime, provided that there is an obligation to return or deliver them. It is a crime that punishes unjust enrichment through the retention of property considered to belong to others.
Requirements for the crime of misappropriation
- Receipt of the property with obligation to return.
- Legal title that does not transfer ownership.
- Intent of unlawful enrichment.
- Patrimonial harm to whoever had the right.
An essential nuance: if the property is delivered with a title that transfers ownership—such as sale or loan—the entry into the recipient’s patrimony is considered legitimate. Therefore, there is no misappropriation.
Can a loan be considered misappropriation?
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What about money received through provisional enforcement? Is it misappropriation?
Case law has also defined the criminal scope in cases of provisional civil enforcement. In this judgment, the defendant received a substantial sum during the provisional enforcement of a judgment that was subsequently overturned. He did not return the money.
The Supreme Court was clear in stating that:
- The money received is delivered with transferable title, not as a deposit or for a specific purpose.
- The obligation to return it arises only if the judgment is overturned, not from the beginning.
- Therefore, the criminal offense under article 253 of the Criminal Code is not established.
«No one can misappropriate what belongs to them.»
If the asset was received with transferable effects, there is no misappropriation. In these cases, the solution must be sought through civil proceedings, in accordance with article 533 of the Civil Procedure Act. Only if there is fraud or willful concealment could a criminal response be considered.
Where is the limit in civil contracts and misappropriation?
Recently, the Supreme Court has established doctrine regarding sales contracts. In it, someone was tried for receiving €4,000 as an advance payment in the sale of corporate shares. The contract was terminated by mutual consent, but the recipient did not return the money and simulated a transfer.
Despite this behavior, the Supreme Court acquitted him. These are the key points:
- The delivery was made by virtue of a sale, which implies transfer of ownership.
- The obligation to return arose afterwards, due to contract termination.
- Criminalizing that retention would mean using Criminal law for
Is unlawfully appropriating something that belongs to you a crime?
Misappropriation is not a catch-all offense
Criminal law cannot resolve what civil law already regulates. This principle, reiterated by the Supreme Court, is key to correctly interpreting Article 253 of the Criminal Code. Current case law requires:
- That the property received be owned by another at the time of delivery.
- That there exists a prior obligation to return it.
- That there be no transferable title of ownership.
In sale contracts, loans, or provisional executions, the recipient acquires ownership from the beginning. Therefore, retaining it cannot be considered criminal.
Resorting to criminal law in these cases distorts its function, violates proportionality, and may lead to sanctioning perfectly lawful civil conduct.
«No one can misappropriate what is theirs.»
The use of Article 253 should be reserved for true willful acts of misappropriation, where another’s property is damaged without legal basis. In short, whoever keeps what is theirs, even if they breach civil obligations, does not commit a crime.
How can a criminal defense attorney help you when facing charges of misappropriation?
If you are accused of misappropriation in a context where you have already acquired ownership of the property —through sale, loan, or provisional execution—, having a defense attorney.
Abogado penalista en Madrid (Graduado en Derecho y ADE con Máster de Acceso a la Abogacía), experto en procedimientos complejos y técnicos en Derecho Penal. Cuenta con títulos como el Curso de DerechoPenal Avanzado impartido por magistrados del Tribunal Supremo en el Iltre. Colegio de Abogacía de Madrid.