Can I sell the goods to a third party to avoid paying debts?
Any of us, in a situation of financial crisis particularly, have the urge to "save" certain assets to avoid debts or obligations to third parties, they will cause such property out of our heritage…
However, Does that transmission can be performed at any time, and regardless of the consequences?
Un supuesto de hecho similar ha sido tratado por la Sala Primera del Tribunal Supremo en su Sentencia 67/2016, of 8 February 2016, on the appeal of cassation No. 897/2015, filed by the legal representation of Dña. Serafina y D. Pio (onwards, recurrent) against the judgment delivered 16 March 2015 by Section 1 of the Provincial Court of Palma de Mallorca, He is condemning both as perpetrators of a crime of concealment of assets.
As it was stated in the judgment of tested 16 March 2015, Ms.. Serafina, to avoid paying a debt 66.017,20 € he had with the Real Club Nautico de Palma de Mallorca, he sold, by 140.000 €,D. Laureano a catamaran of 19,34 meters in length, encumbered with three naval mortgages guaranteeing a total amount of 250,000 €, and he transferred without compensation to D. Pio un Jaguar modelo XKB, which consisted of numerous annotations yet, which in turn he transferred to D. Laureano. D. Laureano, by these same facts, He was also charged for a crime of concealment of assets with Dña. Serafina y D. Pio, but he remained in default throughout the procedure.
Dictated the Judgment 16 March 2015 by the Provincial Court of Palma de Mallorca, Ms.. Serafina y D. Pio filed appeal, claiming:
1) Vulneración del derecho a la presunción de inocencia y del derecho a la tutela judicial efectiva.
2) Error en la apreciación de la prueba.
3) Infringement of Articles 257.1 1° and 2 ° of the Penal Code.
4) Infringement of Article 21. 6ª regarding Article 66.1. 2Th of the Penal Code.
The First Chamber of the Supreme Court the he addressed as outlined below:
1. First, as regards the infringement of the right to presumption of innocence and effective judicial protection, the appellants allege that can be inferred from the documentary evidence Dña. Serafina remained fully solvent after the sale of both goods, XKB Jaguar the car had a small price, and that, in any case, both they were over-taxed goods to the creditor Dña. Serafina could reasonably expect of their claims under them. The Supreme Court, after recalling that on this occasion the appellant may object to the lack of evidence to support the damning judgment, deny the validity of the existing or its probative power, or question the rationality of the evaluative process and recalling the existing case law on circumstantial evidence, the prevalence of personal assessment tests carried out by the trial court, and the content of effective judicial protection, rejects the plea because he understands that the Provincial Court decided rationally assessing proper evidence and validly made to the procedure.
2. Second, as regards the error in the assessment of the evidence, the appellants argue that the registry provided documents can be seen that Dña. Serafina held, following the sale of the catamaran and the vehicle, solvency sufficient to satisfy the obligation in the Real Club Nautico de Palma de Mallorca. However, the Supreme Court, recalling that only credited literosuficientes has a clear documents the existence of error in assessing the evidence, concludes that, although it is true that such documents may appear that Dña. Serafina was also owner of other property and vehicle catamaran Jaguar, can not however be concluded that Dña. Serafina were in the situation of solvency alleging, Once all the remaining assets were taxed at different preventive embargoes and mortgages annotations.
3. Thirdly, as regards the infracción de los artículos 257.1 1° and 2 ° of the Penal Code (regulating the crime of concealment of assets itself), the appellants argue that, on the one hand, they did not have intention of causing damage to creditors and, on the other hand, that the sale of these two goods did not cause the insolvency of the Ms.. Serafina. The Supreme Court, recalling that the crime of concealment of assets It is mere activity, concludes that assets that remained to Dña. Serafina after having the vehicle catamaran and Jaguar were not sufficient to satisfy the debt owed to the Real Club Nautico de Palma de Mallorca.
4. Fourthly, as regards the infringement of Article 21. 6ª regarding Article 66.1. 2Th of the Penal Code, the appellants argue that the sentence should have been reduced by two degrees, by application of highly qualified extenuating circumstance dilaciones indebidas, and not a single degree, as indeed did the Provincial Court. The Supreme Court, recalling that the concept of undue delay is open and indeterminate, and requires in each case a specific assessment, Whereas concludes Provincial Court respected the proper proportion between the facts constituting the offense of concealment of assets and mitigating undue delay, and maintains a degree of degradation.
Ultimately, if transmitted any good trying to keep it up to your cash value to pay the debt owed to a third party, you run the risk of being accused and convicted of a crime of concealment of assets. Unless, Of course, which have sufficient economic capacity to meet debt, and so is intended to "save" that particular good of a possible execution process.