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Bufete de abogados penalistas Alonso Sala
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Undue Retention

Defense in cases of non-return of vehicles, machinery, or goods. The interversion of the possessory title.

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From Lawful to Unlawful Possession

Misappropriation in its retention modality (keeping something received) is the most common crime in the field of financial leases (leasing/renting) and deposits. The user receives the car or machine legally, but at some point, ceases to have a title to possess it (end of contract, non-payment) and refuses to return it.

The criminal key is the moment when possession transforms. Mere delay in return (which is civil) is not enough. An act demonstrating definitive appropriation will is required: hiding the asset, trying to sell it, or a flat and unjustified refusal to delivery requests.

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Why Alonso & Sala for Undue Retention?

Title interversion defense: lawful → unlawful possession. Appropriation act vs civil delay.

  • assignment_returnPossession transformation: user receives good legally (leasing/renting/deposit). Key moment: ceases title possess (contract end/non-payment) + refuses return. Mere delay = civil, NOT criminal.
  • assignment_returnDefinitive appropriation will act: hide asset (remove vehicle GPS), attempt sell, flat unjustified refusal delivery requirements. Without act = NO crime, only contractual breach.
  • assignment_returnLegitimate retention right: carriers/depositories Art. 1780 CC retain goods until transport/storage payment. Retain for service non-payment = civil right exercise, NOT crime (if NOT dispose/sell).
  • assignment_returnResponse requirements vital: answer 'your disposal, come get' = recognize other's ownership + lack appropriation intent. Silence/ignore bureaufax/notarial = key proof intent.
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Retention FAQs

Is it a crime not to return a renting or leasing car?expand_more
Yes. When the contract ends or is terminated for non-payment, and the company demands return, if the user does not return it, they commit misappropriation. If they also hide it, remove the GPS, or try to sell it, the situation is aggravated. Police can arrest the driver and seize the vehicle as it is listed as stolen in databases.
What happens if I lost the item I borrowed?expand_more
If the loss was accidental (fortuitous) or due to negligence, it is not a crime, it is civil liability. The crime requires 'profit motive' or appropriation. If you prove it was lost, broken, or stolen (police report), you cannot be criminally convicted, only claimed for its economic value.
Can I keep the goods if the client doesn't pay me?expand_more
Carriers and depositories have a legal right of retention over goods until transport or storage fees are paid (Art. 1780 Civil Code). If you retain the load for service non-payment, it is not a crime, it is legitimate exercise of a civil right, provided you do not dispose of it (do not sell it).
If I sell something I'm paying in installments?expand_more
If there is 'retention of title' (seller remains legal owner until final payment) and you sell it to a third party without notifying or paying, you commit misappropriation. It is very common in financed car sales.
What is the penalty for keeping a company mobile upon dismissal?expand_more
It is misappropriation. If the mobile is worth more than €400, it is a less serious crime (fine or short prison). If worth less, it is a minor offense. The company usually reports to recover the asset and corporate data.
Is 'leasing' different from 'renting'?expand_more
Criminally it is similar regarding ownership (it belongs to the financial institution). If you stop paying and do not return the good after the resolution requirement, you are appropriating something belonging to another. In leasing, as there is a purchase option, defense can be somewhat more complex if a large part has been paid.
What if I refuse to return the premises keys?expand_more
If the lease ended and you don't return keys, it is a civil illicit (precarious eviction), not criminal, unless you empty the premises of furniture not yours or prevent owner entry by force (coercion).
Can I go to jail for this?expand_more
If the value of what is retained exceeds €50,000 (e.g., heavy machinery, luxury cars) or is of artistic value, the penalty can reach 6 years (aggravated). In minor cases, it usually results in a fine or suspended prison if the good is returned.
How do I prove I didn't want to keep it?expand_more
By responding to requirements. If you answer saying 'it is at your disposal, come get it whenever you want' or 'I have it stored here for you', you show you recognize other's ownership and lack appropriation intent. Silence is your enemy.
Is it a crime not to return commercial samples?expand_more
Yes, it is common in dismissed sales reps. They must return samples, the laptop, and the car. Retaining them as a pressure measure to collect severance pay is risky and can lead to a lawsuit if not done with precise legal advice.

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