Article 248 Spanish Criminal Code: The Offence of Fraud (2026)

Article 248 of the Spanish Criminal Code defines one of the most heavily prosecuted economic offences in Spain: fraud. It punishes anyone who, with intent to profit and using sufficient deceit, causes another person to make an act of disposal of assets to their own detriment or that of a third party. As criminal defence lawyers, we explain what Article 248 actually says.

What Article 248 Says

• Art. 248.1 — Common fraud: using sufficient deceit to cause error in another, inducing them to make an act of disposal to their own or another's detriment.
• Art. 249.1.a) — Computer fraud: obtaining a non-consented transfer of an asset through computer manipulation or a similar device, as well as the manufacture or use of another's cards, cheques or payment data.

Fraud is not the mere non-payment of a debt: it requires a prior deceitful scheme that vitiates the victim's will.

The Elements of Fraud

1. Sufficient deceit: suitable enough to induce error in a person of average diligence.
2. Error in the victim: a false representation of reality caused by the deceit.
3. Act of disposal: the victim pays, hands over or disposes of an asset.
4. Loss and intent to profit: the transfer of assets causes harm and the offender seeks the benefit.

The Key: Antecedent Intent

The decisive issue is the moment of intent. For fraud to exist, the intention to deceive must be prior to or contemporaneous with the transaction. If someone contracts in good faith and only later cannot perform, this is a civil breach, not a crime. Distinguishing antecedent criminal intent from mere supervening civil intent is the core of most fraud defences.

Penalties: From Minor Offence to Basic Type

After the latest reforms, Article 248 CP itself sets the penalty for common fraud (Article 249 punishes computer fraud and payment-card fraud with the same penalty): prison of 6 months to 3 years where the amount exceeds 400 euros, and a fine of 1 to 3 months where it does not. Where aggravating circumstances apply, fraud becomes aggravated fraud under Article 250, with penalties of up to 6 or 8 years.

New in 2026: Repeat Offending in Minor Fraud

Organic Law 1/2026, of 8 April, in force since 10 April 2026, has toughened the treatment of so-called multirreincidencia (repeat offending). The third paragraph of Article 248 CP now provides that, even where the amount defrauded does not exceed 400 euros, the penalty of the basic offence — 6 months to 3 years in prison — will be imposed where the offender already has at least three final convictions for offences of the same nature under the same chapter, at least one of them for a minor offence. Expunged records, or records that should have been expunged, are not taken into account.

In practice, a small-value fraud — a 60-euro charge, a 150-euro instant transfer — is no longer automatically a minor offence punished with a fine: with three prior final convictions for fraud, the prosecution may seek a prison sentence. The same logic applies to theft (Article 234.2 CP, with 6 to 18 months in prison). For the defence, the client's criminal record sheet becomes decisive: checking that prior convictions are final, of the same nature and not expunged or eligible for expungement is now a key line of work.

Defence Strategies

1. No sufficient deceit: the victim failed to act with due diligence.
2. Civil nature of the matter: there was a real transaction and a later breach, not a planned fraud.
3. No antecedent intent: proving the initial willingness to perform.
4. Challenging the amount to bring the case below the 400-euro threshold — although since Organic Law 1/2026 this no longer downgrades the offence for repeat offenders.
5. Compensation for the loss, triggering the mitigating factor of Art. 21.5.