Appropriation of property delivered by mistake (Art. 254 CP): what happens with a mistaken bank transfer and when it becomes a crime

Instant banking and electronic payments have multiplied an everyday problem: money appearing in an account when its holder is not expecting it. A mistaken bank transfer, a duplicated payment, a wrongly applied refund or a wrong delivery of goods leave the recipient with a reasonable question: can they keep it? Are they committing a crime if they spend it? The legal answer is clear and worth knowing, because the difference between a simple civil adjustment and criminal liability almost always turns on what the recipient does after discovering the error. We explain it from the firm's technical perspective, without alarmism and without promising any outcome.

What Article 254 CP punishes

Article 254.1 of the Spanish Criminal Code is the residual misappropriation offence. It punishes anyone who, outside the cases of Article 253, appropriates movable property belonging to another. A characteristic situation under this provision is the appropriation of property received by mistake from the transferor: the money from a wrong transfer, a duplicated payment, an over-delivery. It also covers lost property and property of unknown owner, but it is the mistaken-delivery scenario that generates the most disputes in banking and commercial practice.

The conduct punished is not receiving the property but appropriating it: taking it into one's own estate instead of returning it. That is why the offence is not completed when the money arrives, but with the act of disposal that shows the recipient has decided to make their own what they know is not theirs.

The duty to restore: the line of the offence

The pivot of the whole analysis is the duty to restore. Anyone who receives money or property that is not theirs is obliged to return it. In civil terms, that obligation operates as the recovery of an undue payment: whoever receives by mistake something that was not owed to them must give it back. In criminal terms, that same duty is what divides lawful conduct from the offence.

It is worth stressing that this duty to restore does not depend on the recipient having been at fault in the error. Even if the mistake is entirely the bank's or the sender's, whoever receives what is not theirs is obliged to return it: having no responsibility for the origin of the error does not legitimise keeping the money afterwards. What is assessed in criminal terms is not how the money arrived, but what the recipient decided to do once they knew it was not theirs.

So long as the recipient keeps the amount available to its owner and behaves consistently with returning it, there is no appropriation. The offence appears when, knowing of the error and the lack of any right, they dispose of the property as their own: spend it, transfer it to a third party, conceal it or refuse to return it when able to do so. Restoring it, or simply making it available to the owner, excludes the intent to appropriate.

The intent to appropriate (animus rem sibi habendi)

The offence under Art. 254 is intentional and requires the so-called animus rem sibi habendi: the will to make the property one's own, definitively, while aware that it belongs to another. An objective situation of error is not enough; the recipient must, after discovering that the payment or delivery was mistaken, decide to appropriate it.

The decisive moment is therefore that of knowledge of the error. Someone who in good faith spends money unaware that it comes from a wrong transfer does not act with intent to appropriate; the position changes when, having been alerted to the error — by the bank, by the sender or by the circumstances themselves — they persist in disposing of what they received. Proving that state of knowledge, its timing and its scope, is one of the central battlegrounds of any defence.

The typical case: the mistaken bank transfer

The most frequent situation is money paid into an account by mistake. It helps to distinguish scenarios:

• The recipient does not notice and does not dispose of the money: there is no punishable conduct; the bank usually reverses the entry and, where appropriate, the matter is claimed in civil proceedings.
• The recipient notices the error and reports it, keeping the balance available: again there is no crime; on the contrary, that conduct documents the absence of any intent to appropriate.
• The recipient, knowing of the error, spends, transfers or conceals the money and refuses to return it: this is the scenario that may fall under Art. 254 CP.

The right response to an unexpected payment is simple: do not dispose of it, report the incident to the bank at once and, if known, to the sender, keeping a written record, and hold the amount until it is returned. Where there is already a claim or a complaint, it is advisable to instruct lawyers experienced in the appropriation of property received by mistake before taking any step, because the way you respond shapes the outcome of the matter.

Penalties under Article 254 CP

The provision's penalty is moderate in its basic form:

• General rule (Art. 254.1): a fine of three to six months.
• Amount not exceeding 400 euros (Art. 254.2): a fine of one to two months, as a minor offence.
• Item of artistic, historical, cultural or scientific value (Art. 254.1, second part): imprisonment of six months to two years.

The fact that the ordinary penalty is a fine does not make the matter trivial. A conviction, however minor, creates a criminal record and the duty to restore or compensate, and it opens criminal proceedings with all their consequences. The amount also determines the type of trial and, at times, whether the dispute stays in the civil courts or moves to the criminal one.

254 against 253 and against fraud (Art. 248 CP)

Classifying the facts correctly is essential, because the classification determines the penalty and often the very existence of an offence:

• Art. 253 CP (proper misappropriation): requires a prior relationship of trust. The property or money had been received in deposit, on commission, in administration or under another title obliging the holder to deliver or return it, and the offender diverts or appropriates it. It is more serious than Art. 254.
• Art. 254 CP (residual offence): there is no prior relationship. The property arrived by mistake, was found, or had an unknown owner. The recipient had assumed no prior duty of custody: the duty to restore arises precisely from the error.
• Fraud under Art. 248 CP: requires prior deception by the offender, sufficient to cause error in another and bring about the transfer of property. In a mistaken delivery that deception is absent: the error is not caused by the recipient but made by the transferor. That absence of prior deception is what rules out fraud and channels the facts, where appropriate, to Art. 254.

The distinction is not academic. The same situation may be read as a civilly recoverable matter, as appropriation under Art. 254 or, wrongly, as fraud; undoing that confusion is often the first goal of the defence.

Lines of defence

There is no single defence: it depends on the facts and the evidence. The most common, always with respect for the presumption of innocence, are:

• Absence of intent to appropriate: showing the willingness to return, the holding of the amount available to its owner, or the steps taken to identify the source of the payment.
• Mistake as to ownership or origin: demonstrating that the recipient was unaware the payment or delivery was mistaken at the time they disposed of it, which excludes intent.
• Civil nature of the dispute: reframing the matter as a claim for the sum or for recovery of an undue payment where the criminal element is missing.
• Reparation of the harm: returning the amount or the asset mitigates liability and favours dismissal or an agreed resolution.
• Challenge to the classification: preventing facts under Art. 254 from being wrongly aggravated as misappropriation under Art. 253 or as fraud.

In every case, early and documented action by the recipient — reporting the error and not disposing of the property — is the best foundation on which to build any later defence.

Specialist defence with Alonso Sala

A charge for appropriating property received by mistake, or a claim arising from a wrong transfer, calls for a precise analysis of the facts, of when the error became known and of the subsequent conduct. At Alonso Sala, a criminal-law firm based in Madrid (calle Velázquez 27) with coverage throughout Spain, we handle this kind of matter with rigour and discretion. Each case is studied individually, in light of its specific circumstances and the law in force, to define the strategy that best fits the facts.