The Offence of Misappropriation: When the Money Does Not Come Back

Misappropriation (Art. 253 CP) is one of the most frequent economic offences and, at the same time, one of the hardest to distinguish from a simple non-payment or civil debt. Unlike theft, here there is no "taking" by force or stealth. The perpetrator receives the money or the thing lawfully (through a contract, a deposit, a mandate), but then decides to "keep it" for good, breaking the trust placed in them. It is the offence of "breach of trust" par excellence. Our criminal lawyers experienced in fraud in Madrid can help you with this type of situation.

The Confusing Triad: Misappropriation vs. Unfaithful Management vs. Theft

For both the defence and the prosecution, classifying the facts correctly is vital, since the penalties and strategies vary enormously:

• Theft/robbery: the offender takes something that is not theirs and that they did not hold. The transfer of assets is unlawful from the outset.
• Misappropriation: the offender held the thing lawfully (they were lent the car, entrusted with money to manage), but incorporates it into their own assets or denies having received it. The initial possession is lawful; the offence is the "metamorphosis" of the basis of possession.
• Unfaithful management (Art. 252 CP): here the perpetrator has powers to administer the assets of another and exceeds the exercise of those powers, causing a loss. The difference from misappropriation is subtle: in misappropriation there is a "making the money one's own" (a definitive diversion); in unfaithful management there is a "misuse" (risky investments, unjustified lavish spending) without the money necessarily ending up in the administrator's pocket, but causing a loss.

The "Animus Rem Sibi Habendi" and the Diversion of Money

The key subjective element is the intention of definitive gain. What happens if an administrator takes money from the till "as a loan" intending to return it? Supreme Court case law has fluctuated. Currently, temporary "diversion" can be unfaithful management or misappropriation if there are no guarantees of return or if the return is prevented. The defence must prove that there was a real ability and willingness to replace it, downgrading the matter to a civil one.

In the case of money (a fungible asset), the doctrine of the "point of no return" arises: misappropriation is committed when the entrusted money is spent on purposes wholly unrelated to those agreed, so that its immediate recovery becomes impossible.

Practical Cases in the Courts

• The unreturned leased vehicle: stopping the lease payments is a civil matter. But selling the leased car to a third party or breaking it up for parts is misappropriation.
• The homeowners' association: the property manager who diverts the association's funds to their personal account "to plug holes" and does not replace them.
• Sale on commission: the commission agent who sells the client's product but keeps the price collected, claiming a set-off of non-existent debts.