Undue retention (art. 253 CP): when refusing to return something stops being a breach of contract

A rental deposit that is never repaid, a colleague’s tool that never comes back, the company vehicle a worker keeps after dismissal, the advance paid to a professional who neither performs nor refunds. All of these end in the same question: is this a civil claim or a criminal case? Art. 253 CP draws the line at a specific point, and knowing where it runs matters as much to the person claiming as to the person receiving the court summons.

You have been reported for not returning something: what undue retention is

Undue retention is one of the forms of misappropriation under art. 253 CP. The provision punishes those who, to the detriment of another, appropriate for themselves or for a third party money, effects, securities or any other movable property received on deposit, commission or safekeeping, or entrusted to them under any other title producing an obligation to hand it over or return it, or who deny having received it.

The offence rests on three components:

• An initial lawful delivery. Unlike theft, nothing is taken behind the owner’s back: the item is received voluntarily and legitimately.
• A title that transfers possession but not ownership, and that creates the duty to hand over or return.
• A subsequent act of appropriation: the holder stops behaving as a holder and starts behaving as owner.

That third element is what turns a breach of contract into an offence, and it is also what generates most argument in court.

The title creating a duty to return: the open clause

Art. 253 CP mentions deposit, commission and safekeeping, but does not stop there: it adds "any other title producing an obligation to hand over or return". It is a deliberately wide formula that reaches very everyday relationships:

• Loans for use and hire of goods. Tools, machinery, vehicles or equipment handed over for a defined use and a defined period.
• Delivery for repair, transport or professional safekeeping. The garage, the carrier or the warehouse receive goods under a duty to return them.
• Agency and collection of payments. Anyone collecting on someone else’s behalf receives money that is not theirs and must hand it over.
• Employment and company relationships. Computers, phones, vehicles, cards and funds provided for the job, due back when the relationship ends.
• Advances and funds provided for a specific purpose that is then not carried out.

There is an important nuance with money. Because it is fungible, merely mixing it with one’s own assets does not by itself amount to appropriation; what counts is applying it definitively to a purpose other than the agreed one, with inability or refusal to return the equivalent. That distinction between diverting money and simply handling it is one of the main battlegrounds for classification.

The turning point: from civil breach to intent to appropriate

Not every refusal to return is an offence. Many are legitimate objections, disputes over the settlement of a relationship or supervening insolvency. The indicators the prosecution usually relies on to argue that the line was crossed are these:

• Denying having received the item. Art. 253.1 CP includes it as an express form of the offence: denying receipt is telling the owner there is nothing to return.
• Acts of definitive disposal. Selling, pawning, transferring or consuming what was received shows that the holder has assumed the powers of an owner.
• Concealment. Moving the item, disappearing or cutting off all communication after the demand.
• Prolonged silence in the face of a formal demand, particularly where return was materially possible.

Against those, the defence usually works the opposite ground: a genuine dispute about what is owed, a right of retention invoked in good faith, effectively making the item available, depositing the amount with the court, or objective impossibility of returning it for reasons beyond the holder’s control. A serious, documented civil dispute about the settlement of the relationship is no small detail: it is frequently what prevents the intent to appropriate from being established.

The demand for return: what it proves and what it does not

A prior demand does not appear in the text of art. 253 CP as an element of the offence, but it plays a leading evidential role. A recorded demand —by certified fax, notarial record or acknowledged communication— does three things at once: it fixes the date on which return was demanded, it specifies what is being claimed and it records the answer.

What the demand does not do is automatically turn later non-compliance into an offence. Failure to reply is an indicator, not full proof of intent to appropriate, and it admits explanation: a wrong address, an outstanding dispute over amounts or genuine impossibility of returning the item. For the recipient of a demand, replying in writing and on the record —even to object— is usually a better position than silence.

Penalties and the 400-euro threshold

Art. 253.1 CP sets no penalty of its own: it refers to that of art. 248 CP, which punishes fraud with six months to three years in prison, or to that of art. 250 CP where one of its aggravating circumstances applies, with one to six years in prison and a fine of six to twelve months. Among those circumstances, the ones that appear most often here are a value of the fraud above 50,000 euros and the abuse of the personal relationship existing between victim and offender.

Where the amount appropriated does not exceed 400 euros, art. 253.2 CP imposes a fine of one to three months. Setting the amount is therefore not an incidental question: it decides the applicable sentencing framework and, with it, the procedure and the consequences.

The correct reference is to the penalties of art. 248 CP. Art. 249 CP governs other offences —among them computer fraud and the fraudulent use of payment instruments— and citing it here is a misfit worth avoiding.

Distinguishing theft, fraud and disloyal administration

Four provisions frequently compete over the same facts, and the right classification changes both the penalty and the defence:

• Theft. The offender takes the item against the owner’s will. In undue retention, delivery is voluntary and lawful; what is unlawful is what comes afterwards.
• Fraud. Deception precedes the transfer of assets and causes it. Under art. 253 CP there is no initial deception: when the item was received there was a genuine intention to return it, or at least nothing to show otherwise.
• Disloyal administration (art. 252 CP). The offender holds powers to administer another party’s assets —arising from law, entrusted by an authority or assumed by legal transaction— and breaches them by exceeding their exercise, causing loss to the administered estate.
• Art. 254 CP. Outside the situations of the previous article, it punishes appropriating another party’s movable property with a fine of three to six months, or six months to two years in prison where the item is of artistic, historical, cultural or scientific value. It is the route for lost property or property delivered by mistake, not for property received under a duty to return.

The boundary between the first three is analysed in detail in the article on misappropriation, theft and disloyal administration, and the general regime of the provision in the one devoted to art. 253 CP.

Limitation, civil liability and late return

With the penalty of art. 248 CP —a maximum of three years in prison— the basic offence becomes time-barred after five years under the residual rule of art. 131.1 CP. If the charge is aggravated under art. 250 CP, whose maximum penalty is six years, the period rises to ten years. Time runs from completion of the offence, which in these cases is usually placed at the act of disposal or the definitive refusal to return, not at the initial delivery.

Returning the item later does not erase an offence already committed, but it has value: it can support the mitigating factor of repairing the harm if it happens before the trial hearing and, where appropriate, make a plea agreement easier. Alongside the penalty, a conviction resolves civil liability, which covers restitution of the item or, if that is not possible, its value, plus compensation for any proven loss.

Lines of defence

• Challenging the title. If what was handed over was transferred in ownership —a sale, a loan of money not tied to a purpose— there is no duty to return that item but a debt: the ground is civil.
• Denying intent to appropriate. Documenting offers to return, court deposits, communications and the existence of a genuine dispute over the accounts between the parties.
• Disputing the amount. The 400-euro threshold and the 50,000-euro threshold of art. 250 CP change the sentencing framework; the valuation of what was appropriated is open to expert evidence.
• Reclassifying. Exceeding powers in managing another party’s funds may fit art. 252 CP better than art. 253 CP, with different consequences.
• Repairing early. Where return is possible, doing it before the trial hearing and evidencing it is the most effective route to mitigation.

If you have been reported for failing to return money or property received under a duty to give it back, you can contact us at +34 91 078 65 74. You can also look at our pages on misappropriation and on undue retention.