Article 248 of the Criminal Code

What Article 248 of the Criminal Code punishes

Article 248 contains the statutory definition of fraud and opens the chapter the Spanish Criminal Code devotes to this offence against property. Fraud is committed by those who, for profit, use sufficient deceit to produce error in another, inducing them to carry out an act of disposition to their own detriment or that of a third party.

Case law has broken that definition down into a chain of elements that must be complete and in the right chronological order: deceit that is prior to the transfer of assets and causes it; deceit that is sufficient, meaning objectively capable of overcoming the caution reasonably expected of the victim in the circumstances; a genuine error on the part of the person disposing of the asset; an act of disposition attributable to that error; economic loss, whether the victim's own or a third party's; and the offender's intent to profit. If any of those links is missing or falls out of sequence —notably where the intention not to perform arises only after the contract was concluded— the conduct is not fraud but a civil or commercial breach. That boundary between civil and criminal wrongdoing is where most of these proceedings are decided.

Penalty

The basic offence carries six months to three years' imprisonment. The provision itself sets out the sentencing criteria: the amount defrauded, the economic harm caused to the injured party, the relationship between that party and the offender, the means used, and any other circumstance relevant to assessing the seriousness of the offence.

Where the amount defrauded does not exceed 400 euros, the penalty is a fine of one to three months, unless one of the circumstances in Article 250 applies. There is, however, a multi-recidivism rule: if the offender had already been finally convicted of at least three offences of the same nature within this chapter, at least one of them a minor offence, the prison penalty of the second paragraph applies even where the amount is below 400 euros. Spent criminal records, and those that ought to be spent, are not counted. Because the maximum penalty does not exceed five years' imprisonment, the offence is time-barred after five years (Article 131 CP).

How Articles 249, 250 and 251 fit in

Article 248 defines fraud; the provisions that follow adjust it. Article 249 treats two digital forms as fraud: computer fraud under Article 249.1.a, which consists of obstructing or interfering with the operation of an information system, or manipulating computer data, in order to obtain an unauthorised transfer of an asset; and the fraudulent use of cards and other non-cash payment instruments under Article 249.1.b. The penalty is the same as for the basic offence, six months to three years' imprisonment, and paragraph 2 extends it to anyone who manufactures, imports, possesses, trades in or supplies to third parties the devices, data or programs designed to commit them, while paragraph 3 imposes the penalty in its lower half for merely possessing or transferring those instruments for fraudulent use.

Article 250 sets out the aggravated forms, carrying one to six years' imprisonment and a fine of six to twelve months. Article 251 covers so-called improper fraud —disposing of property while falsely claiming a power of disposal one does not have, concealing encumbrances or selling the same asset twice, and entering into a simulated contract to another's detriment— with one to four years' imprisonment. Fraud should not be confused with the misappropriation offence in Article 253: there is no prior deceit there, but the lawful receipt of property under an obligation to return it that is later breached.

Defence strategy

Defending an Article 248 charge almost always starts with the chronology of the deceit. Documenting that the transaction was entered into with a real intention to perform, that there was genuine activity, and that non-performance arose from external causes —subsequent insolvency, a market contingency, non-payment by a third party— places the matter in the civil courts. The second front is the sufficiency of the deceit: where the injured party had accessible information and omitted elementary checks that could reasonably be expected of them, the deceit may fall short of what the offence requires. The amount is also decisive, since it separates the minor offence from the less serious one and shapes the penalty, as are proof of intent to profit and of authorship in corporate structures with several participants. Finally, making good the loss before the trial hearing may ground the mitigating circumstance of Article 21.5 CP. The fraud defence service and the extended analysis of Article 248 CP develop these criteria.