“I lent a friend 15,000 euros to open a bar. Now he says the business went under and he won’t pay me anything. Can I report him for fraud?” It depends on what he told you before you handed over the money and whether it was true, because fraud under Article 248 of the Spanish Criminal Code, punishable by six months to three years in prison, requires deception that existed before the payment and caused it. If the bar was real and simply failed, what you have is a debt, claimed in the civil courts within five years of the date it should have been repaid.
At Perseus & RC Abogados in A Coruña I review these cases myself. I am Luis Jurado Cano, a criminal lawyer registered with the A Coruña Bar under number 6317, and when the answer is a civil claim I work on it with Ana Reza, managing partner of our civil department. The general overview is on the fraud page. This page covers the three situations most often confused with fraud.
When an unpaid loan is fraud
A criminal court is not interested in the fact that the money has not come back. It asks whether the borrower lied to get it and already knew they would not repay. Nobody admits that, so it is inferred from facts. What tends to weigh is the business that never existed, a car or flat offered as security that was not theirs, the same request made to other people in the same weeks, debts they already owed everyone around them, or money that left their account the next day for something unrelated to what they told you.
If none of that appears and the borrower paid part back, gave explanations or acknowledged the debt in writing, the court will treat it as a civil matter and close the complaint. That does not cancel the debt, but it costs you months. Where the deception relied on a special relationship of trust, beyond what any loan between acquaintances involves, it can be punished as aggravated fraud, with one to six years in prison.
Family is a special case. Spanish law does not punish spouses who are not separated, parents, children or siblings for property offences against each other committed without violence or intimidation, unless they exploited the victim’s age or disability. Parents-in-law and sons- or daughters-in-law are only covered if they live with the victim. The money can always be claimed in the civil courts.
The business partner who kept the contribution
What you put into a company to run the business shares the fate of the business. If it loses money, you lose as a partner and nobody has committed a crime. It is different if your partner diverted the money to themselves, paid personal expenses from the company account, collected customers’ payments into a personal account or sold company assets and kept the price. That can be misappropriation or breach of trust by whoever managed the company, both punished like fraud, and I explain the difference on the misappropriation page. Start by getting the company’s bank statements and its annual accounts, which can be requested from the Companies Register if they were filed, and compare what came in with what was accounted for.
Work paid for in advance
It happens with the builder who takes half the price and never returns, the garage that charges upfront for a repair it never does and the professional who is paid for a project never delivered. If work started and was then abandoned, a court will usually see a breach of contract, and you can claim what you paid for work not done plus the cost of having someone else finish it. If they never appeared, gave a false identity or took deposits from several clients at once with no means to serve them, there are grounds to report it. Keep the quote, the payment receipts, the messages with dates and excuses, dated photos of the site and a written quote from another professional for what remains.
Reporting or suing
A fraud complaint is tempting as a way to apply pressure, but if the court sees a debt it will close the case. A civil claim is more predictable. If you hold a document signed by the borrower, on paper or electronically, acknowledging a specific amount already due, the Spanish order for payment procedure is a short route for any amount. Where there was fraud, the criminal route lets the judge freeze the other party’s assets, and repaying before the trial reduces the sentence. Either way, winning is of little use if the debtor owns nothing, so I check their assets first, as explained in collecting from a debtor who claims to have nothing. For plain debts without deception, see debt recovery.
Where we are
Rúa Torreiro 13, 3.º C, 15001 A Coruña, Spain. Phone +34 677 841 007. If you live elsewhere, we can speak by video call in English. Have the receipt for each payment and the full conversation with that person to hand, from the first message to the last.
Frequently asked questions
I lent money to a friend in Spain without a written contract. Can I get it back?
Yes. The bank transfer proves the money went from your account to theirs, and messages in which you discuss repayment prove it was a loan and not a gift. If they deny it, there will be a trial where you produce that evidence. Do not delete anything, and do not threaten them in writing, because the judge will read those messages too.
A builder took half the price upfront and never came back. Is that fraud?
It depends on whether any work was done. If they started, bought materials or did part of the job, a Spanish court will usually treat it as breach of contract and it is claimed in the civil courts. If they never turned up, used a false name or company, or took deposits from other clients at the same time, there are grounds to report it.
Can I report my brother for not repaying a loan?
Spanish criminal law does not punish siblings, parents, children or spouses who are not separated for property offences committed against each other without violence or intimidation, unless they took advantage of the victim's age or disability. You can still claim the money back in the civil courts, with the same five-year limit as against anyone else.
How long do I have to claim back money I lent?
In the civil courts, five years from the date it should have been repaid. If no date was agreed, when the period starts can be argued, so it is better not to leave it late. If there was fraud, the offence is time-barred five years after the money was handed over, ten years in serious cases and one year if it was 400 euros or less.
If I report them for fraud, will I be paid sooner?
Only if there really was fraud. Then the judge can freeze their assets while the case lasts, and repaying before the trial reduces their sentence, which gives them a reason to pay. If it is only a debt, the court will close the case and you will have lost months you could have spent on the civil claim.