Fraud and Sufficient Deceit: the Supreme Court Restores a Conviction Overturned over the Findings of Fact

Spanish Supreme Court Judgment 495/2026 of 13 July (appeal 7384/2023) decides an apparently simple case that carries an important procedural lesson. A criminal court convicted of fraud; the Provincial Court acquitted on appeal because, in its view, the findings of fact did not describe the deceit; and the Supreme Court, on the Public Prosecutor’s appeal, restored the conviction, holding that the narrative, though capable of improvement, contained every element of the offence. The judgment also summarises the case law on sufficient deceit and the criminalised contract.

If you are accused of fraud over an undelivered sale: what it means and what happens next

The line between fraud and a mere breach of contract is one of the most disputed issues in Spanish criminal courts, and we cover it generally in fraud versus breach of contract. This judgment adds a different angle: how much depends on the wording of the findings of fact. For an accused person, it means that the battle over initial intent is fought in the evidence and in how the facts are written up, because in cassation the Supreme Court works on that narrative and does not reassess the evidence.

If the trial judgment finds it proven that the accused acted «knowing» they would not perform, any later argument about whether there was deceit has little room. The defence must therefore focus on preventing that finding when it has not been proven.

The case: a below-market offer and two bank transfers

According to the findings of fact, the injured party contacted the accused to buy computer equipment below market price, thanks to discounts the accused claimed he could obtain from large retail distributors. Motivated by the aim of profiting and knowing that no delivery would take place, the accused agreed to sell several computers and televisions. The buyer paid by two transfers of 1,040 and 1,810 euros. He never received the goods and the money was never returned.

The criminal court convicted of fraud, with the mitigating circumstance of extraordinary and undue delay under Article 21.6 CP, imposing one year in prison and compensation of 2,850 euros. The facts were tried under Articles 248 and 249 CP as worded before Organic Law 14/2022; today the definition and penalty of basic fraud are both in Article 248 CP.

Why the Provincial Court acquitted

The Provincial Court upheld the appeal and acquitted. It considered that the judgment suffered from a serious defect: the narrative omitted the deceit, the prior scheme aimed at creating an error that would lead to the transfer of property. On that reading, the findings described a failed sale and an unpaid debt, but not fraud.

The Public Prosecutor appealed in cassation for error of law under Article 849.1 of the Criminal Procedure Act, arguing that the narrative sufficiently described sufficient deceit, an error causing the transfer, loss, and prior intent with a profit motive.

What sufficient deceit means according to the Chamber

The Supreme Court recalls that the offence requires deceit that is sufficient, a term the case law equates with adequate and proportionate to achieve the intended aim. Its adequacy is assessed with two combined parameters:

• Objective standards: the deceit must be serious enough to act, in ordinary social life, as an effective stimulus for the transfer of property. The judgment cites the requirement that the scheme have enough appearance of reality and seriousness to deceive people of average insight and diligence.
• The victim’s personal circumstances and the other circumstances of the case: what matters is that the victim, because of the error, is unaware of the reality the offender conceals in order to influence their decision.

Here the offer was plausible: a reduced price justified by distributor discounts, within an ordinary sale. No elaborate staging was needed. The deceit lay in appearing willing to perform when there was no such intention.

The criminalised contract and prior intent

The Chamber devotes a passage to this category, whose name it admits is inaccurate because it combines two seemingly contradictory ideas: a contract, which presupposes a meeting of free wills, and its criminalisation, which denies that freedom. Within bilateral contracts, fraudulent conduct may arise when one party uses tricks to make the other believe in features of the performance that do not exist or are promised with no intention of honouring them.

Citing the Chamber’s earlier case law, the ruling puts it this way: deceit arises when the offender feigns a genuine intention to contract while in reality seeking only to benefit from the other party’s performance, concealing the intention not to meet their own obligations. This creates a legally disapproved risk capable of causing the error that leads to the transfer. That is why, the Chamber adds, it is essential to identify the prior intent: the offender knows from the outset that they will not perform, despite the appearance of performance they offer.

Hence the practical rule: the findings of fact must reflect malicious conduct aimed at another person’s property. The Chamber considered that the narrative did so by stating that the accused offered the sale knowing he would not deliver, and that the victim, attracted by the discount, made the transfers.

Why the findings of fact matter in cassation

The judgment accepts that the findings «could have been more explicit», but holds them sufficient. That statement is the key to the case. In a cassation appeal for error of law, the Supreme Court does not review the evidence: it takes the narrative as it stands and checks whether it fits the offence. An acquittal based on the narrative «not describing» an element of the offence only stands if that element is genuinely missing; if it is there, however tersely worded, the acquittal will be set aside.

The Supreme Court issued a second judgment reproducing the trial court’s conviction in full: one year in prison with the mitigating circumstance of undue delay, special disqualification from standing for public office for the duration of the sentence, costs and compensation of 2,850 euros with statutory interest. The undue delay mitigation was kept; it should always be raised where proceedings have stalled, as explained in our article on undue delay as a mitigating factor.

What the judgment does not say

It is important not to read into this ruling a conclusion it does not contain. The Supreme Court does not say that every undelivered sale is fraud, nor that non-delivery by itself proves an initial intention not to perform. What it says is that, once it has been held proven that the seller acted knowing from the outset that he would not deliver, that narrative is enough for a conviction, even if it does not expressly use the words «deceit» or «error».

The distinction matters. The fact that the accused neither delivered nor refunded is circumstantial evidence, but the conclusion that the intent pre-dated the contract must rest on the evidence at trial: the absence of any real relationship with the supposed distributors, the same pattern repeated with other buyers, disappearing after payment, or the lack of any step towards performance. If that evidence is missing, the trial court should not hold the «knowing» element proven, and that is where the outcome is decided. The debate, in short, does not move to cassation: it is settled earlier.

What the defence should check

• When the intent arose. The decisive question is whether the intention not to perform existed when the contract was made. Everything showing an initial willingness to perform (orders placed with suppliers, partial deliveries, correspondence, supervening difficulties) should be put before the court.
• The wording of the findings. If the trial judgment finds the «knowing» element proven, the room for manoeuvre in cassation shrinks considerably. The evidential debate belongs at trial and on appeal, where the assessment of evidence can still be reviewed.
• The adequacy of the deceit. A crude deception that a person of average diligence would have spotted may not be sufficient. But a plausible commercial offer usually crosses that threshold.
• The amount. Above 400 euros, basic fraud carries six months to three years in prison; the precise figure affects the sentence and, where relevant, the aggravating circumstances of Article 250 CP.
• Mitigating circumstances. Undue delay and, where appropriate, reparation of harm before trial can moderate the sentence even while authorship is disputed.

This commentary is for information only and does not replace a study of each case, where the transaction documents and the timeline of payments are usually decisive. For an overview of the basic offence, see our analysis of Article 248 of the Criminal Code.