Misappropriation Due to Sender's Error in Marbella

Elements of the offence: filling an old gap in the law

Article 254.1 CP punishes with a fine of three to six months anyone who, having wrongly received money or any other movable property due to the sender's error, denies having received it or, once the error has been confirmed, fails to return it, provided the amount exceeds 400 euros. Before this conduct was expressly criminalised, case law faced a genuine gap: someone who received money by error did not commit theft, because the property was at their disposal and they did not take it by removing it from someone else's possession; they did not commit misappropriation in the strict sense, because there was no prior relationship of trust — deposit, commission, administration — of the kind required by Article 253 CP; and they were unlikely to commit fraud, since there was no prior deception by the recipient. Article 254 CP fills this gap with an autonomous offence, which case law expressly links to the quasi-contract of payment of an undue amount ("cobro de lo indebido") under Articles 1895 et seq. of the Civil Code, pinpointing the exact moment at which that civil wrong becomes criminally relevant.

Elements of the offence: an act of appropriation, not mere use

Case law requires several distinct elements to be present. First, a genuine act of appropriation — permanent incorporation into the recipient's estate — mere transitory use of what was received, which might be covered by some other legitimate title, is not enough. Second, the object must be money, securities, valuables or any other movable property belonging to someone else. Third, the receipt must have resulted from a genuine error on the sender's part, without any deceptive conduct by the recipient. And, finally, the truly core element of the offence: that once the error has been noticed or confirmed, the recipient fails to return it, or outright denies having received it. It is this last element — knowledge of the error together with the conscious decision not to restore what was received — that separates a mere financial accident, of no criminal relevance, from the offence itself.

The paradigmatic case: the erroneous bank transfer

The Tribunal Supremo (Spain's Supreme Court) has applied this offence to a scenario that has become extraordinarily common in modern banking practice:

"...consta acreditado que el ingreso fue anómalo, que fue indebidamente recibido, entregado por error, y que la cantidad erróneamente recibida no fue devuelta a su legítimo propietario."

In the case examined, the defendant received in her bank account a transfer of more than 25,000 euros from an insurance company, which was actually intended for an unrelated third party in connection with the redemption of a pension plan, and she used almost the entire amount for her own benefit. The Tribunal Supremo upheld the conviction under Article 254 CP, rather than Article 253 CP, precisely because there was no prior relationship of trust between the parties: the sender's error itself was the only source of the obligation to make restitution. Receiving an unexpected transfer into one's bank account today and using it without checking and reporting the error therefore constitutes a real, not merely theoretical, criminal risk.

Criminal liability falls on the recipient, not the bank

It is worth clearly distinguishing between two levels of liability that are sometimes confused. Civil case law has clarified that a bank which executes a transfer in accordance with the account number provided by the sender does not incur liability, even where that number does not match the intended beneficiary, because its duty of care is limited to verifying the operation's unique identifier. The risk of an error in designating the beneficiary therefore falls, at the civil level, on the sender itself, without prejudice to the fact that such an error may, at the criminal level, give rise to the liability of a recipient who, once made aware of the mistake, decides not to return what was received. These are two independent forms of liability: the bank's civil liability, generally ruled out where it acted in accordance with the data supplied, and the recipient's criminal liability, which arises precisely from their conduct after the erroneous receipt.