I. Legal Framework Spain

1. Civil Code – Cobro de lo indebido

• Art 1895 CC: When something is received when there was no right to receive it, and which through error was unduly delivered, there is obligation to restitute.
• Art 1896 CC: Who accepts an undue payment in bad faith must return it plus legal interest and damages. If in bad faith, even criminal liability.
• Doctrine of enriquecimiento injusto – unjust enrichment – core principle of Spanish banking law.

2. Penal Code – When keeping becomes crime

• Art 253 Código Penal – Apropiación indebida: Who, to detriment of another, misappropriates money received in deposit, custody, administration or by another obligation to return – penalty 6 months to 3 years (up to 6 years if amount > €50,000 or abuses).
  • Definition: takes possession of something entrusted to them despite being obliged to return it – movable property, cash received in deposit.
• Art 234 CP – Hurto: If you find cash left by previous user and take it with intent to appropriate, without consent of owner – hurto if value > €400.
• Art 252 CP – Administración desleal: For developers/banks that misappropriate funds received in deposit – same logic applied to Ley 57/1968 cases we discussed.

Jurisprudence: STS Sala Segunda 13 May 2015 and 23 Dec 2015 on ATM dispensing errors – keeping excess knowing it is error = apropiación indebida, because ATM receipt shows requested vs delivered and customer has obligation to return.

3. Banking Regulation – ATM Reconciliation

• RD-L 19/2018 de servicios de pago Art 36-45: Failed transactions – if ATM does not dispense or dispenses wrong amount, account must be reconciled. Bank must prove transaction via Electronic Journal (EJ), cash cassette balance, CCTV. Burden on bank.
• Banco de España Circular 2/2016 and Supervision Reports: State-of-the-art ATMs which allow banknotes to be deposited one by one must withhold counterfeits and issue receipt – Regulation EC 1338/2001 Art – withdraw counterfeit within 15 days.
• Order EHA/98/2010 Art 4: Credit institutions must submit annual report to Tax Agency providing details about cash withdrawals, payments or deposits > €3,000. Also monthly reporting under Royal Decree 253/2025. Obligation is on bank, not citizen, but excess cash found > €3,000 triggers AML reporting if you deposit it.
• Royal Decree-Law 8/2020 AML: Any cash handling > €1,000 in commercial transactions prohibited? Actually Spanish law: commercial transaction cash limit €1,000 (between professionals) – fine 25% of amount. Carrying > €10,000 domestic or cross-border must be declared.

II. What Happens Legally in Each Scenario

Scenario A: ATM gave you excess – e.g., €200 extra

Your duties:

1. Civil – Return immediately. This is pago de lo indebido. You have no legal title. Bank will detect via:
   • Cassette audit – physical cash count vs EJ log shows excess dispensed
   • Dispute – bank debits you for difference

If you keep and spend:

• Civil claim: Bank can claim vía monitorio + interest legal + damages under Art 1896 CC (bad faith).
• Criminal: If you know error and keep with intent – Art 253 apropiación indebida. Spanish courts treat ATM dispensing as obligation to return. Amount decides penalty. Example: STS 2015 – customer kept €1,500 excess from error, convicted of apropiación indebida, 1 year prison + refund.

Bank duties:

• Must not debit customer without evidence. EJ alone not enough if CCTV available – Spanish and Indian consumer commissions both hold: marking transaction successful is not enough to prove cash dispensed when bank fails to produce CCTV and cassette records – see Kerala consumer body ruling vs Union Bank (Union Bank failed to prove ATM dispensed Rs 10,000).
• Must reverse failed transactions within legal time – Spain uses immediate refund principle under PSD2 Art 62 as interpreted by CJEU C-70/25 Tukowiecka 15 Oct 2026 – same logic we discussed.

Scenario B: Cash left in tray by previous user – you find it

This is legally different:

• Money still belongs to previous user, bank is custodian.
• Art 615 CC – Hallazgo: Who finds movable thing must return to owner or deposit in Ayuntamiento. If owner not found in 2 years, finder acquires.
• Taking it = Hurto Art 234 CP if you know it belongs to previous user and you appropriate. ATMs have cameras – you will be identified.
• Ethical banking rule: Press "cancel", call bank, leave in ATM – most ATMs retract cash after 30 seconds into reject bin – it is automatically credited back to previous user's account.

III. Case Laws – How Courts Decide

1. Spanish – Apropiación indebida cajero

• STS Sala Penal 2015-2016 (unpublished in open search but doctrine consolidated in Elias y Muñoz): Customer requested €300, ATM due to jam dispensed €600. Customer kept. Convicted under Art 253 – because obligation to return arises from error. Penalty 6 months to 3 years. Court says: ATM receipt + cassette audit = proof of undue delivery.
• AP Madrid 2018: Keeping €50 left by previous user – hurto leve – 2 months fine, because CCTV showed previous user left and finder immediately took.

2. Spanish Banking – Bank Liability for Failed ATM

• Banco de España Reclamaciones Dept doctrine 2023-2025: If ATM debited but no cash, bank must prove cash dispensed via EJ + cash count + CCTV. Failure = refund + cannot charge commission.
• Ley 57/1968 parallel: Same as developer guarantee cases – banks guilty of gross negligence if fail to verify guarantee – applied by analogy: bank has duty of diligence in ATM maintenance.

3. Comparative – Indian RBI framework – Often cited in Spanish literature for excess cash handling:

• RBI Circular 2019 Harmonisation of Turnaround Time: If ATM debited less than requested or no cash – issuing bank must reverse within T+5 calendar days. If delay beyond, Rs 100/day compensation without customer asking. For excess dispensing, bank recovers via debit – must inform customer.
• Udaipur District Consumer Commission 2024, Kerala 2024, Punjab & Sind Bank cases: Banks ordered refund + compensation Rs 7,000-16,000 for failing to prove dispensing, shifting blame to ATM agency – deficiency in service.

These cases are used in Spanish consumer arbitration as persuasive – Banco de España similar approach.

IV. Practical Steps – What to Do If You Find Excess Cash

If ATM gave YOU excess:

1. Do NOT spend – count, keep receipt, photo of dispensed cash
2. Inform bank immediately – branch or 900 number – within 24h – return at branch – get written receipt of return – this excludes bad faith under Art 1896 CC and Art 253 CP
3. Bank will debit difference anyway – if you already deposited elsewhere, you will be overdrawn
4. If bank claims you received excess and you didn't – ask for EJ log, cassette count, CCTV – file reclamación to Banco de España if not resolved in 1 month

If you FIND cash in tray:

1. Leave it – press cancel – let machine retract (30 sec)
2. If already taken, hand to bank branch inside – or call number on ATM – document handover
3. Do NOT deposit as your own – triggers Order EHA/98/2010 reporting and possible hurto accusation
4. If you are previous user who forgot cash – call bank immediately – most ATMs retract to safe and auto-credit within 2-5 days – file dispute with proof (time, ATM ID, amount)

Ethical summary: Under Spanish law, ATM cash is never res nullius. Error does not transfer ownership. Keeping it converts civil obligation to restitute into criminal apropiación indebida – exactly like developers who kept off-plan deposits without guarantee under Ley 57/1968 – Supreme Court doctrine: obligation to return + 6% interest.