Fraud under the Spanish Criminal Code: Offences and Defence

Most fraud cases under the Spanish Criminal Code are not won or lost in the debate over the sentence. They are decided earlier, on three questions worth asking from the first meeting: whether the facts are criminal or a civil breach of contract, whether the deceit was sufficient for the person who suffered it, and which specific offence fits the way the fraud was carried out.

This guide answers those questions from a practical point of view, for both the defence and the private prosecution. It is based on Articles 248 to 251 of the Spanish Criminal Code, as reorganised by Organic Law 14/2022. For a short overview of the elements and basic penalties, see fraud in Spain: elements and penalties. How the sentence is set, the aggravating factors and the 2026 reform are covered in aggravated fraud in Spain: sentencing and the 2026 reform.

Fraud or breach of contract: when is it a crime?

The line between fraud and a broken contract is drawn by the moment the intention not to perform arises. If the offender already knew, when contracting, that they would not perform, and hid it to obtain payment, it is fraud. If the will not to perform appeared later, because of financial difficulties or a change of plans, it is a civil wrong, however serious the loss.

The Spanish Supreme Court calls this a “criminalised legal transaction”: the contract is used as the stage for the deceit. Intent that arises only later (dolo subsequens) is not enough for fraud. It is the first argument the defence should explore in any case that starts from a contract.

Evidence of prior intent

Intent is never admitted; it is proven through circumstantial evidence. These are the indicators that weigh most in court decisions:

• Real ability to perform when contracting: solvency, resources, administrative permits, staff.
• Preparatory steps towards performance: orders placed with third parties, licences applied for, payments to suppliers. Their existence points to a later, non-criminal failure to perform.
• What happened to the money received: whether it went into the project or was diverted at once.
• A repeated pattern: the same deal with several counterparties and the same outcome.

Long-term contracts

Here the case law allows nuances. There can be fraud where the offender, with the relationship already under way, realises they will not be able to perform, keeps quiet and continues collecting payments. For the prosecution, that final stretch is often the easiest to prove.

A warning for the prosecution: the principle that criminal law is a last resort is not just a stock phrase in acquittals. If the complaint describes only a failure to pay, dismissal is predictable. It must identify precisely what the deceit was and when it happened.

Sufficient deceit and the victim's diligence

Not every lie that causes a financial loss is fraud. Article 248 of the Criminal Code requires sufficient deceit (engaño bastante), that is, deceit capable of causing the mistake of the person who disposed of the assets. It is probably the most litigated element of the offence, and also the most flexible.

The Supreme Court now applies a mixed test:

• An objective measure: what a person of average diligence would have noticed.
• A subjective measure: the circumstances of the actual victim, such as age, education, emotional situation or dependence on the offender.

In practice, crude deceit can be sufficient if the offender chose a victim unable to detect it.

The self-protection argument

The defence often relies on the victim's duty of self-protection: the victim failed to check what they could have checked, so the mistake is their own. This argument has lost much of its force. Current case law accepts it only for blatant deceit or glaring carelessness, and refuses to require people who enter into contracts to show a systematic distrust that ordinary commerce does not assume.

There is an underlying argument useful to both sides. If deceit were measured by the victim's ability to uncover it, every completed fraud would prove the deceit sufficient, and every failed one would prove it was not. That is why courts focus on the offender's conduct, not on the victim's shrewdness.

How to argue it in practice

• Defence: self-protection rarely succeeds on its own. It works better with a professional or highly qualified victim (banks, sophisticated investors) who skipped checks that are standard in their line of business.
• Prosecution: document from the outset the victim's personal circumstances and prior relationship with the offender. This is what allows the “crude deceit” argument to be rebutted.
• Vulnerable victims: elderly people, people with disabilities or in emotional dependence lower the threshold of sufficiency. Classic street scams are punished precisely for this reason.

A borderline case is online romance fraud, where the deceit is built up over months. Courts tend to regard it as sufficient because of the intensity of the bond created, even if from the outside it seems implausible.

Computer fraud under Article 249 of the Criminal Code

In many modern frauds nobody is deceived in the strict sense. The offender logs into online banking with someone else's credentials, uses card details or manipulates a system, and a machine executes the transfer. These cases fall under Article 249 of the Criminal Code. Since Organic Law 14/2022, it covers computer fraud and the fraudulent use of non-cash payment instruments, with a prison sentence of six months to three years.

Article 248 or Article 249: the means used decides

What matters is the means. If the transfer of assets is obtained by manipulating a computer system or using a non-cash payment instrument, the applicable offence is Article 249, whether or not a person is involved on the other side. Paying with someone else's card in a shop, at a card terminal and in front of an employee, is therefore also punished under Article 249.1.b) (Supreme Court judgments, SSTS, 547/2026 of 23 September and 565/2026 of 25 September). Article 248 remains for deceiving a person who disposes of assets by mistake, without any of those instruments.

Three key points about Article 249

• The scope has widened. Article 249 is no longer limited to cards and cheques. It covers any tangible or intangible payment instrument: e-wallets, payment apps and, to the extent they are used as a means of payment, virtual assets.
• Preparatory acts are punished on their own. Producing, possessing or supplying software or devices intended for fraud, or unlawfully obtaining payment instruments in order to use them, carries the same penalty as the completed fraud. The defence has room to challenge proportionality and the mental element of intended fraudulent use.
• There is no minor offence. Article 249 sets a single penalty, without the 400-euro threshold of Article 248. The point divided the courts after the reform but is now settled. In line with Public Prosecutor's Office Consultation 1/2024, the Supreme Court has held that Article 249 is an autonomous offence with no mitigated form based on the amount. Computer fraud or payment-instrument fraud of up to 400 euros is always a less serious offence (delito menos grave) (SSTS 547/2026 and 565/2026, which in turn cite SSTS 205/2025, 101/2026 and 296/2026). For the defence, the margin now lies in setting the sentence within the six-month to three-year range and in seeking suspension of the sentence.

Victims of computer fraud also have a civil route against their bank. Payment services legislation makes the bank liable for unauthorised transactions unless the customer acted fraudulently or with gross negligence. This route is often faster than waiting for the outcome of the criminal case.

These cases also frequently raise the question of which court has jurisdiction. We analyse it in territorial jurisdiction in online fraud.

Money mules: accomplices to fraud or money launderers?

Almost no online fraud is completed without someone who receives the money in their account and passes it on. These intermediaries are often recruited through seemingly legitimate job offers and are frequently the only suspects who can be identified. We explain how they are recruited in money mules in Spain. Their legal classification is still not uniform:

• Necessary cooperation in the fraud (Arts. 28 and 249). The prosecution must prove knowledge, at least as dolus eventualis, of taking part in someone else's fraud.
• Intentional money laundering (Art. 301.1). The prosecution must prove knowledge of the criminal origin of the money; dolus eventualis is accepted.
• Grossly negligent money laundering (Art. 301.3). The prosecution must prove gross negligence: warning signs that should have alerted the intermediary and were ignored.

What the case law says

There is no single rule: the classification depends on what the intermediary knew and how they took part. Supreme Court judgment 506/2015 of 27 July opened the money laundering route for those who merely receive the money and move it abroad without taking part in obtaining the credentials. It also held that negligent money laundering can be committed by any private individual, not only by those bound by anti-money laundering rules.

Later case law has refined that approach. Where the intermediary knows the conduct is unlawful and also keeps the money, there is necessary cooperation in the fraud (SSTS 51/2020 and 253/2020, as cited by judgment 160/2022 of 9 May of the Provincial Court of Cantabria). These judgments apply former Article 248.2, now Article 249.1.a), but the reasoning carries over.

Provincial Courts still decide very similar cases differently:

• Provincial Court of Ciudad Real, judgment 55/2019 of 11 March: a person who accepted a job offer to receive and withdraw funds was convicted as a necessary cooperator in computer fraud, with dolus eventualis.
• Provincial Court of Cantabria, judgment 160/2022: the same classification for people who opened accounts solely to receive the transfers and then withdrew the money.
• Provincial Court of Castellón, judgment 378/2022 of 16 November: a conviction for negligent money laundering was upheld, even though the defendant had kept the money.

For the defence, negligent money laundering under Article 301.3 is the most favourable classification (six months to two years in prison, plus a fine). Intentional money laundering under Article 301.1 carries a higher penalty than fraud. See also our page on money laundering defence.

Where these cases are won or lost

The real debate is about the mental element, and courts are demanding with intermediaries. Many convictions rest on common-sense inferences: nobody needs a third party to make a lawful transfer, and a disproportionate commission for forwarding money abroad should raise suspicion. Courts often invoke wilful blindness, and the defendant's personal background can count against them. In the Castellón judgment, for example, his training as an engineer did.

The defence has more scope on two fronts:

1. Reducing dolus eventualis to negligence, using the distinction drawn in STS 506/2015. A person acts with dolus eventualis when aware of the high probability of a criminal origin and indifferent to it. A person acts negligently when they could only have suspected it by exercising basic caution.
2. Proving circumstances that explain the mistake: a contract and a company that looked genuine, lack of training, or the fact that the intermediary alerted their own bank or reported the facts.

Procedural consequences

Fraud and money laundering protect different legal interests. If the prosecution charges only one of them, a conviction for the other may clash with the accusatorial principle. The prosecution should plead alternative charges from the provisional statement of charges onwards. In the Cantabria case, the private prosecution tried to do so only on appeal, although the court did not rule on the point because it upheld the fraud conviction.

Property fraud under Article 251 of the Criminal Code

Article 251 of the Criminal Code sets out three frauds linked to dealings in property, with its own penalty of one to four years in prison and no 400-euro threshold. They come up very often in real estate matters, including those of foreign buyers in Spain.

• Claiming a power of disposal you do not have over movable or immovable property, and selling, encumbering or letting it. A typical case is selling a flat that is no longer, or never was, the seller's.
• Disposing of property while concealing its charges, or selling it again before the first transfer is completed (double sale). Charges are not only mortgages: they include attachments, registry cautions and prohibitions on disposal.
• Executing a sham contract to someone's detriment, such as a fictitious sale to a relative to put the property beyond a third party's reach.

Article 251 prevails over Article 250

The Supreme Court resolves the conflict of provisions in favour of Article 251, which displaces both the basic offence and the aggravating circumstances of Article 250. Those circumstances can weigh in setting the sentence within the one-to-four-year range, under Article 66, but not as an aggravated offence. For that reason the fine under Article 250 does not apply either (STS 434/2019 of 1 October, which cites SSTS 941/2007, 362/2010, 69/2011 and 90/2014 to the same effect).

There was a contrary line that gave priority to Article 250 where the fraud concerned a home (STS 954/2010 of 3 November), and STS 434/2019 itself acknowledges that the issue is disputed. For the prosecution, the argument remains available in high-value cases. For the defence, the majority line caps the sentence at four years.

Deceit and the amount defrauded

These are special offences in relation to Article 248, each with its own form of deceit. Under paragraph 1, it consists of claiming a power of disposal one lacks. Under paragraph 2, it consists of presenting encumbered property as free, for example by stating that a mortgage has been paid off and is only awaiting cancellation (STS 90/2014, as cited in STS 434/2019).

If the amount is disputed, only what was obtained through the deceit counts. Payments made earlier, under a contract that was not fraudulent at the time, must be compensated but are not part of the amount defrauded (STS 434/2019).

The boundary with concealment of assets

If the person harmed by the sham contract is a creditor, the applicable offence is usually concealment of assets from creditors (alzamiento de bienes) under Article 257, not Article 251.

Did the buyer have to check the Land Registry?

Where charges were concealed, the defence sometimes argues that the buyer did not check the Land Registry or waived the registry extract (nota simple). STS 434/2019 rejected this in a case of an attachment concealed when the deed was signed. A buyer is not required to show extreme diligence or systematic distrust in order to keep the protection of criminal law.

Key points

• The timing of intent decides whether there is fraud or a civil breach: it must exist when the contract is made, and it is proven through circumstantial evidence.
• Sufficient deceit is judged by a mixed test, and the victim's self-protection only succeeds against blatant deceit.
• The means used separates Article 248 from Article 249: with computer systems or non-cash payment instruments, Article 249 always applies, with no minor offence.
• A money mule's classification depends on what they knew: necessary cooperation in the fraud, intentional money laundering or negligent money laundering.
• Article 251 displaces Article 250 in property frauds under the majority line, with a range of one to four years.

Once the offence is identified, the next step is to calculate the sentence. We explain it in aggravated fraud in Spain: sentencing and the 2026 reform.

If you or your company are involved in a fraud case, as a suspect or as a victim, our team handling fraud and misappropriation and cybercrime can review your case. Request a consultation in English, Spanish or German.