Article 253 Spanish Criminal Code: Misappropriation (2026)
In this article
Key Takeaways
- The initial possession is lawful
- A title with a duty to return
- Distinct from theft and fraud
- Penalties referred to fraud
Art. 253 CP governs misappropriation: a person who, to another's detriment, appropriates money, securities or any movable property received on deposit, commission or custody, or under any other title creating an obligation to deliver or return it, or who denies having received it. What characterises it is that the initial possession is lawful and the offence arises later, with the intent not to return (animus rem sibi habendi). It carries the penalties for fraud: 6 months to 3 years' imprisonment (Art. 248 CP), or 1 to 6 years in the cases of Art. 250 CP; if what is appropriated does not exceed 400 euros, a fine of 1 to 3 months.
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Article 253 of the Spanish Criminal Code governs misappropriation: the offence of someone who lawfully receives an asset with a duty to return it and, instead of doing so, incorporates it into their own estate. As property and economic crime lawyers, we explain its key features. Art. 253 CP sets no penalty of its own: it refers to those for fraud, namely 6 months to 3 years in prison (Art. 248 CP) or 1 to 6 years in prison and a fine of 6 to 12 months in the aggravated cases of Art. 250 CP, and a fine of 1 to 3 months where what is appropriated does not exceed 400 euros (Art. 253.2 CP).
What Article 253 Says
Misappropriation is committed by anyone who, to another's detriment, appropriates for themselves or a third party money, securities or any other movable property received in deposit, commission or custody, or entrusted under any other title that creates an obligation to deliver or return it, or who denies having received it.
The Key Element: a Title That Obliges Return
What characterises this offence is that the initial possession is lawful. The asset reaches the offender legitimately (a deposit, a loan for use, an assignment). The offence arises at the later point when the offender decides not to return it and to act as owner. That change of will is what must be proven.
Differences From Theft and Fraud
- Against theft (Art. 234): in theft there is no handover; the offender takes the item without consent. In misappropriation it was received with consent.
- Against fraud (Art. 248): in fraud there is prior deceit causing the handover. In misappropriation the handover is genuine and voluntary; the wrong arises afterwards.
Penalties
Article 253 refers to the penalties for fraud: those of Article 248 CP (prison of 6 months to 3 years) or, where the aggravating circumstances apply, those of Article 250 CP (1 to 6 years in prison and a fine of 6 to 12 months), depending on the amount and the circumstances. If what is appropriated does not exceed 400 euros, Art. 253.2 CP imposes a fine of 1 to 3 months.
A delay in returning is not always a crime
Mere delay in returning an asset, or a disagreement over accounts, does not amount to the offence. There must be a genuine intent of definitive appropriation, not just a civil dispute.
Defence Strategies
- No intent of appropriation: there was delay or an accounting disagreement, not appropriation.
- A right of retention or set-off justifying non-return.
- Civil nature of the dispute: the matter belongs before the civil courts.
- Challenging the amount to downgrade the type.
- Return and compensation, triggering the mitigating factor of Art. 21.5.
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Frequently asked questions
What makes possession 'lawful' in a misappropriation case?
The asset must have reached the offender legitimately — through a deposit, a loan for use, an assignment or a similar arrangement — which is what separates misappropriation from theft, where the item is taken without the owner's consent in the first place.
What is 'animus rem sibi habendi' and why does it matter?
It is the Latin term for the intent to treat someone else's property as one's own; the offence of misappropriation only arises at the point this intent forms — proving that change of will, rather than merely a delay in returning the item, is central to the prosecution's case.
Does simply being late in returning something amount to misappropriation?
No — mere delay in returning an asset, or a disagreement over an account, does not by itself amount to the offence; there must be evidence of a genuine intent of definitive appropriation rather than a civil dispute over timing or figures.
What penalty does misappropriation carry under Article 253?
It refers to the penalties for fraud: 6 months to 3 years in prison under the basic offence of Art. 248 CP, or 1 to 6 years in prison and a fine of 6 to 12 months in the aggravated cases of Art. 250 CP. Where the amount appropriated does not exceed 400 euros, Art. 253.2 CP imposes a fine of 1 to 3 months.
Can a right of retention or set-off be a valid defence?
Yes — if the person had a legitimate right to retain the asset, for example to set it off against a debt owed to them, this can justify non-return and undermine the claim that the withholding was criminal rather than a legitimate exercise of a civil right.
What effect does returning the asset and compensating the owner have on the case?
Returning the property and compensating the harm caused can support the mitigating circumstance under Art. 21.5 CP, which can meaningfully reduce the eventual penalty.
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