Lawyer for Appropriation of Property Received by Mistake

Appropriation of Property Received by Mistake: Legal Framework

The appropriation of property received by mistake is governed by Article 254.1 of the Criminal Code. It punishes anyone who, outside the cases of disloyal administration or misappropriation in the strict sense, receives money or movable property through the transferor's mistake and, knowing of it, appropriates it instead of returning it. As criminal defence lawyers specialising in offences against property, at Alonso Sala we take on the defence of those accused following a wrong transfer or bank deposit.

The most common scenario is the wrong transfer or deposit: an amount that reaches an account by mistake of the payer or the bank. It also covers the mistaken physical delivery of goods. One essential principle must be stressed: receiving by mistake does not, in itself, constitute any offence. Criminal liability only arises when, once aware of the mistake, the recipient decides to keep what was received.

The Transferor's Mistake

The element that structures this offence is the mistake of the person transferring: the delivery occurs by error, without any deception by the recipient. This feature distinguishes it from fraud, where it is the perpetrator who brings about the transfer of assets through prior deception. In the appropriation under Art. 254.1 CP, the recipient is unconnected to the cause of the mistake: they simply receive something that was not due to them and later decide to appropriate it.

For this reason, expert evidence on the origin of the mistake (a software failure, a mistyped digit, a confusion of recipient) is key: if it is established that the recipient induced or actively exploited the error, the classification could shift towards fraud; if the mistake was entirely unconnected to them, we remain within the scope of Art. 254.1 CP.

The Duty to Return Once the Mistake Is Known

The core of the offence is the breach of the duty to return. Anyone who receives a wrong transfer is obliged to return it as soon as they become aware of the mistake. The offence is not committed upon receiving, but upon declining to return while knowing that the money or property does not belong to them. Hence awareness of the mistake is a prerequisite of intent: if the recipient was unaware that the amount was undue, or returned it as soon as they noticed, there is no criminal liability.

Defence Strategy

1. Unawareness of the mistake: Establishing that the recipient was not aware that the amount or property had reached them by error.
2. Spontaneous return: Showing that they returned what was received as soon as they noticed the mistake, which excludes the intent to appropriate.
3. Disputing the amount: If it does not exceed €400, the lesser offence applies, with a fine of 1 to 2 months.
4. Civil nature of the dispute: Maintaining that this is a controversy over the return of an undue payment, outside criminal law.

Stages of the Criminal Proceedings under Article 254

Proceedings usually begin with a complaint or, more often, a formal accusation (querella) by the transferor who realises that a thing or sum was handed over by mistake and that the recipient, aware of the error, has failed to return it. The accusation is accompanied by the documents evidencing the mistaken transfer and the subsequent demand for return. The investigating court decides on admission and opens the inquiry phase, in which evidence is gathered: the accused's statement, witness testimony, requests to banks and, where appropriate, a forensic-accounting report. Early defence work can steer the investigation towards dismissal where it is shown that there was no knowledge of the error or that the item was returned.

Once the inquiry closes, the judge either orders the case to proceed or, absent indicia, dismisses it provisionally or definitively. If the case advances, the prosecution and defence file their pleadings, where the legal classification is fixed: distinguishing Article 254 from the misappropriation of Article 253 is decisive given their differing penalties, since Article 254 provides only for a fine. Trial is held before the Criminal Court, as the penalty does not reach the threshold of the Provincial Court. The judgment may be appealed and, in limited cases, challenged further; each stage offers technical avenues for objection that should be prepared from the outset.

Documentary and Forensic-Accounting Evidence

Proof of this offence rests, above all, on documentary evidence. The transferor's error and the recipient's later awareness of it are shown through bank statements, transfer orders, deposit receipts, emails and messages demanding return, and the formal notice that fixes the moment from which the duty to restore arises. The documentary chain must allow a reconstruction of when the asset entered the recipient's sphere, when the recipient learned of the mistake, and what was done with the thing or the money. Traceability of the movements is therefore the evidential backbone for both prosecution and defence.

Where the amounts are significant or the financial flows complex, forensic accounting takes centre stage: an expert report reconstructs the path of the funds, identifies disposals, transfers to third parties or asset conversions, and helps assess whether there was a definitive act of disposition or merely a temporary retention. The defence may put forward its own expert report to show that the money remained available, that its return was offered, or that the commingling of assets stemmed from a pre-existing civil relationship. The strength or the weaknesses of this financial evidence often determine the outcome of the case.

Limitation Periods and How They Are Counted

Limitation is governed by Article 131 of the Criminal Code, according to the maximum penalty laid down for each offence. The appropriation of a thing received by mistake under Article 254.1, punishable by a fine, is a less serious offence and becomes time-barred after five years. The subtype of Article 254.2, reserved for cases where the value of what is appropriated does not exceed 400 euros and punished with a fine of one to two months, is a minor offence and becomes time-barred after one year. It should be stressed that, following the reform introduced by Organic Law 5/2010, there is no three-year limitation bracket, so any statement to that effect is incorrect.

The distinction matters because this offence often overlaps with misappropriation. The basic form under Article 253, carrying imprisonment of up to three years, is a less serious offence and is time-barred after five years. By contrast, where the facts are aggravated by the circumstances of Article 250 —which raises imprisonment to a maximum of six years— the penalty exceeds five years and the limitation period rises to ten years. Time begins to run on the day the offence is committed and is interrupted by relevant procedural acts directed against the responsible party, matters that must be examined with precision, since a well-founded limitation defence can close the case for good.

The Line Between a Civil Claim and Criminal Liability

Not every mistaken delivery of money or goods leads to a criminal offence. Most of these situations are resolved in the civil sphere through an action for unjust enrichment or the recovery of an undue payment. Criminal law only comes into play where a clear subjective element is present: that the recipient, knowing of the transferor's error, decides to keep the thing and absorb it into his estate with the intention of not returning it. Mere possession, a dispute over amounts, or the existence of a contested contract belong, in principle, to the civil arena and do not warrant the intervention of the criminal courts.

The dividing line lies in the intent to appropriate and in the conduct following knowledge of the error. If the recipient shows willingness to return the item, deposits the sum, or disputes ownership in good faith, the dolus characteristic of the offence is absent. Conversely, ignoring demands, concealing funds, or definitively disposing of what was received reveals the appropriating will. A rigorous defence works precisely on this boundary, showing that the conflict is patrimonial in nature and should be heard before the civil courts, avoiding the improper criminalisation of an economic dispute.

Aggravating Factors of Article 250 and the Mitigation of Reparation

Where the conduct is reclassified as misappropriation, the aggravating circumstances of Article 250 may apply: that it concerns essential goods or items of recognised social value, that it is especially serious owing to the value appropriated, or that it is committed by abusing personal relationships or exploiting business or professional credibility, among others. Their application raises the sentencing framework to six years' imprisonment and carries consequences for limitation, which then extends to ten years. Challenging the presence of these aggravating factors, their proper proof and their correct legal subsumption is an essential task for the defence, as they mark the difference between a fine and a custodial penalty of some weight.

Against that severity, the mitigating circumstance of reparation of harm under Article 21.5 offers a notably useful avenue. Repairing or reducing the effects of the offence before trial —by returning what was appropriated or depositing its value— allows the penalty to be lowered and, depending on its intensity, may operate as an ordinary or a highly qualified mitigation, with significant effects on sentencing. In property offences, full and early restitution is the post-offence conduct most valued by the courts. Articulating it correctly, documenting the deposit and its timing, is one of the most effective defence strategies in this type of proceeding.

The Prior Title, the Point of No Return and Plea Agreements

The misappropriation of Article 253 requires a prior title that obliges the holder to deliver or return the thing: a deposit, a commission, an administration, or any legal relationship imposing that duty. This is a structural difference from Article 254, where there is no title at all but a mistaken delivery. Supreme Court doctrine has shaped the so-called point of no return: the offence is consummated when the recipient carries out a definitive act of disposition over the property of another —spending it, transferring it to third parties, or irreversibly absorbing it into his estate— thereby manifesting an unequivocal intention not to return it. Mere delay or temporary retention, without that definitive act, does not yet complete the offence.

Within this framework it is also worth delimiting the unlawful administration of Article 252, which punishes anyone who, holding powers to administer another's estate, exceeds them and causes harm, without any physical appropriation of the thing. Distinguishing improper disposal from disloyal administration calls for careful technical analysis. Finally, where the evidence is unfavourable, a plea agreement offers a way out: an admission of the facts, combined with reparation, allows negotiation of a reduced penalty and, where it does not exceed two years and the legal requirements are met, makes possible the suspension of enforcement, avoiding actual entry into prison.