Improper Fraud by Double Selling (Art. 251.2 CP): An Autonomous Offence

Improper fraud by double selling is one of the least understood figures in the Spanish Criminal Code. Article 251.2 CP punishes a person who, having sold a thing, disposes of it again to the detriment of the first buyer. The Spanish Supreme Court, in its judgment of 21 May 2026 (appeal 4456/2023), has clarified its nature with an idea that changes how it is both prosecuted and defended: it is an autonomous provision to which not all the elements of ordinary fraud are simply transferred. We examine what the offence requires, what it does not require, and why that difference is decisive.

What double-selling fraud is

Article 251.2 CP sanctions a person who disposes of a thing, as owner, having already transferred it beforehand. In its most typical form, this is the seller who, after selling an asset to a first buyer, later transfers it to a third party. The provision sits among the improper or assimilated frauds, a group of conducts that the legislator chose to punish alongside fraud but with a structure of their own.

The practical consequence of that autonomy is precisely what the judgment underlines: not all the elements of ordinary fraud are automatically transferred to these figures. It is not enough, whether to prosecute or to defend, to reason as if we were dealing with an ordinary fraud under Article 248 CP. The double-selling offence has different requirements, and conflating the two is one of the most frequent sources of error in framing the charge.

An autonomous offence: no prior deception required

The central point of the doctrine is this: double-selling fraud does not require deceptive conduct that determines the victim's act of disposal. In ordinary fraud, the offender deploys sufficient deception that induces error in the victim and leads them to carry out an act of disposal of assets that harms them. That scheme — deception, error, disposal, harm — is the core of Article 248 CP.

In double selling, however, the first buyer's harm does not arise from deception inducing them to hand over their money. The first buyer may have contracted in a fully informed and voluntary way. What causes the damage is a later act by the seller, carried out with a third party: a second transfer that disregards the right already acquired by the first buyer. The criminal reproach therefore centres on that second transfer, incompatible with the first, and not on any defect in the original buyer's consent.

Hence the importance of the legal classification: a defence showing that there was no determining deception may exclude ordinary fraud, but not necessarily double selling, which operates on different premises. Conversely, a prosecution that establishes only an initial deception may be misidentifying the applicable offence.

The second buyer's good or bad faith is irrelevant

If the typical conduct is that of the seller who transfers a second time in disregard of the first buyer's right, the criminal reproach falls on the seller. The Supreme Court draws a clear consequence from this: the second buyer's good or bad faith is irrelevant. The offence under Article 251.2 CP is committed by the transferor's conduct, regardless of what the second acquirer knew or did not know.

The planes should not be confused. That the second buyer's bad faith is irrelevant to the existence of the offence does not mean it has no consequences in civil law, where resolving the dispute over who keeps title to the thing follows its own rules. But in criminal terms the focus is on the seller who disposes twice of the same thing, and the second buyer's subjective position adds nothing to, and removes nothing from, the offence.

Protection also extends to future goods

Another relevant clarification in the judgment is that protection of the first buyer extends to future goods. The object need not exist physically and in full at the time of the first sale. The paradigm case is the dwelling not yet built or still to be completed, purchased off-plan.

What matters is not the material and complete existence of the thing at the moment of the first transfer, but that a right has arisen in favour of the first buyer which the seller disregards when later disposing of the same thing in favour of a third party. This reading significantly broadens the scope of the provision in the property market, where off-plan sales and transfers of buildings under construction are common in Spain, and where a double disposal can leave the first buyer without the dwelling promised to them.

The boundary with breach of contract

The provision itself marks the line with mere breach of contract, which belongs to civil law and should not be dragged into the criminal sphere. Not every double sale is a crime. Civil double selling is governed by Article 1541 of the Civil Code, which provides rules to decide who keeps title when the same thing has been sold to several buyers. That conflict, on its own, is resolved under civil criteria.

The offence under Article 251.2 CP requires something more: the conduct of someone who, after selling, transfers the same thing again in disregard of the first buyer's right and causes them harm. Criminal defence is often built around precisely this boundary: showing that the situation fits a civil dispute over title, or that one of the elements of the offence is missing, may move the matter outside criminal law. Conversely, the prosecution must establish that the elements specific to the figure are present, rather than merely noting two successive contracts.

Key points for the defence

Several useful ideas for shaping strategy follow from the Supreme Court's doctrine:

• Correct classification of the offence. Double selling is not ordinary fraud under another name. It is worth checking whether the prosecution is applying the elements of Article 248 CP to a figure that does not share them, which may open defence avenues.
• Deception is not the axis. Whether there was determining deception is central to ordinary fraud, but secondary here: what matters is the second disposal, incompatible with the first.
• Separate civil from criminal. Not every conflict between buyers over the same thing is a crime; identifying when the matter belongs to Article 1541 of the Civil Code can be decisive.
• Mind the future good. In off-plan sales, the existence of a right held by the first buyer, even if the thing is unfinished, may suffice to make out the offence.

This commentary is for informational purposes only and does not constitute legal advice. Each case requires an individual assessment of the facts, the contracts and the available evidence.