Article 251 Spanish Criminal Code: Improper Fraud (2026)

Article 251 of the Spanish Criminal Code governs so-called improper fraud: a group of fraudulent acts that, although they cause patrimonial harm with intent to profit, do not fit the classic structure of ordinary fraud (sufficient deception, error and transfer of assets) under Art. 248. That is why case law groups them under that label. As criminal defence lawyers, we often see these offences in real-estate and commercial disputes.

What Is Improper Fraud?

Improper fraud shares with ordinary fraud the intent to profit and the patrimonial harm, but the law describes specific conduct in which the reproach is not based on deception causing error, but on the abuse of a legal position over an asset (its title, its charges or the reality of the transaction). All forms carry the same penalty: one to four years' imprisonment, regardless of the amount.

The Three Forms of Art. 251 CP

1. Disposal of another's property (Art. 251.1)

Anyone who, falsely claiming a power of disposal over movable or immovable property that they lack — either never having had it or having already exercised it — sells, charges or leases it to another, to the detriment of that person or a third party. A typical example: selling land that is not one's own or that has already been sold.

2. Concealed charges and double sale (Art. 251.2)

Anyone who disposes of an asset while concealing a charge over it (a mortgage, a seizure), or who, having sold it as unencumbered, charges or sells it again before the final transfer to the buyer, to that person's detriment or a third party's. This is the classic real-estate double sale.

3. Simulated contract (Art. 251.3)

Anyone who, to another's detriment, enters into a simulated contract: an apparent transaction concealing the real one (for example, a fictitious sale to remove an asset from creditors or harm a third party).

Difference from Ordinary Fraud (Art. 248 CP)

Ordinary fraud under Art. 248 requires proof of sufficient deception causing an error in the victim that leads them to make a disposition. In Art. 251 the law does not build the offence on that deception-error, but on the abuse of a legal position over the asset. In practice, the classification between the two provisions — and the possible application of the aggravated fraud of Art. 250 — is usually the first ground of dispute for the defence.

Penalties Under Article 251

• Base penalty: 1 to 4 years' imprisonment for any of the three forms.
• Amount: the penalty is not graded by the sum defrauded (unlike the basic offence of Art. 249), although the amount and harm are weighed in sentencing.
• Civil liability: beyond the penalty, the convicted person must repair the harm caused (return, compensation or restitution of the asset).

Defence Strategies

As defence lawyers, the work in these matters means drawing the line between the civil and the criminal wrong, which in real-estate and contract matters is especially fine:

1. Absence of harm or intent: showing that the transaction was genuine or that there was no intention to cause harm.
2. Civil nature of the dispute: reframing the controversy as a breach of contract or a land-registry question, outside criminal law.
3. Good faith and registry publicity: proving that the charges were recorded or that the buyer knew the asset's situation.
4. Mistake of fact: proving ignorance of the charge or of the lack of power of disposal.