The short answer: the gold is yours when you can point to the specific pieces that belong to you and you hold documents that prove it. If all you have is a promise that you will be given a quantity of gold, with no identified pieces and no specific batch you co-own, you normally do not own any bar: you are a creditor of a company. While things go well you will not notice. If it goes bust, it changes everything.
In this article
- Two ways of holding gold that look alike and are not
- When gold becomes yours under Spanish law
- Deposit: keep it safe and give back the same pieces
- What happens if the seller or the custodian goes bust
- The evidence worth keeping
- An example: how SilverGold documents it
- Common mistakes
- When to get help
- Frequently asked questions
Two ways of holding gold that look alike and are not
- Allocated or segregated gold. Specific bars or coins, with serial numbers, set aside and recorded in your name. If you ask for delivery, you get those pieces and no others.
- Unallocated gold. The company holds a common pool of metal and credits you with a balance of grams or ounces. No piece is yours.
- Gold accounts, certificates and financial products. You buy a right whose value tracks the gold price. They have their own rules, but they do not make you the owner of a bar. See physical gold or a gold ETF.
All three can be advertised with the same photo of a bar. Read the contract, not the advert.
When gold becomes yours under Spanish law
In Spain paying is not enough to make you the owner. Ownership passes under certain contracts through delivery, known as tradición (article 609 of the Civil Code): contract plus delivery. Before delivery you can demand it, but have no property right over the goods (article 1095).
Delivery does not have to be into your hands. Goods are treated as delivered once placed in the buyer's control and possession (article 1462), and for movable goods it is enough, for instance, to hand over the keys to the place where they are kept, or for the parties to agree if the goods cannot be moved at that moment (article 1463). That is why gold can be yours while it sits in a vault.
The condition is that the goods are specific (article 1445). Nobody hands you a hundred grams of gold in the abstract; they hand you one particular bar. Without identified pieces, delivery is left hanging, and so is your ownership.
Deposit: keep it safe and give back the same pieces
When allocated gold stays with a custodian, the usual arrangement is a deposit: someone receives another person's property with the duty to keep it and hand it back (article 1758). Another person's, meaning not theirs.
The custodian must give it back when you ask (article 1766) and cannot use it without your express permission (article 1767). If they received it closed and sealed, they must give it back the same way, and if the seal has been broken they are presumed at fault (article 1769). The seal is not just for show.
Watch the small print. If the contract lets the custodian use the metal, it stops being a deposit and becomes a loan (article 1768). And whoever receives fungible goods on loan becomes their owner and only owes the same amount of the same kind and quality (article 1753). You go from owner to lender.
Also, the custodian can hold on to the goods until you pay what you owe for the deposit (article 1780).
What happens if the seller or the custodian goes bust
In Spain going bust means insolvency proceedings, the concurso de acreedores, governed by the Consolidated Insolvency Act (Royal Legislative Decree 1/2020). The debtor's assets and rights form the insolvency estate (article 192), and creditors are paid from it.
Your allocated gold does not belong to the debtor. The law says that property of others in the insolvent party's hands, over which it has no right of use, security or retention, is handed by the insolvency administrator to its lawful owners at their request (article 239.1). This is the right of separation. If the administrator refuses, you can challenge it before the judge (article 239.2). Note the exceptions: use, security or retention. That is why the use clause and paid-up storage fees matter.
If the gold is not identified, there is nothing to separate. You have a claim against the company. Insolvency claims are preferential, ordinary or subordinated, and ordinary claims are those the law does not place in the other two classes (article 269). In practice, a buyer of unallocated gold usually ends up as an ordinary creditor: paid after others, and perhaps only in part, or not at all.
And if the gold was yours but the company sold it before the insolvency to someone from whom it can no longer be claimed, you can ask for the price still unpaid or lodge a claim for its value, which ranks as ordinary (article 240).
To put it cautiously: what happens in a real insolvency depends on the case and, above all, on the evidence.
The evidence worth keeping
- An invoice in your name, with weight, purity and price. It also proves your purchase price when you sell (see how selling gold is taxed in Spain).
- A list of your pieces with serial number, refiner and, better still, a photo of each one.
- A deposit contract stating the metal is yours, kept apart, and the custodian may not use it.
- An external custodian, separate from the seller. If seller and custodian are the same company, everything depends on that company.
- An identified seal on the bag or packaging, with its number.
- Certificates for the pieces (see physical gold certification).
Keep copies outside the company's website. If it closes, its client area closes with it.
An example: how SilverGold documents it
We are official SilverGold consultants in Valencia and know their contracts. They show what a good contract should include.
- The contract is signed in your name with Silver & Gold Patrimony, S.L., and you pay by bank transfer straight to SilverGold.
- Before taking the metal into storage, SilverGold scans each piece and records the seal on the bag and the delivery note.
- You receive an annex listing your pieces with a photo (for a single purchase, within 15 working days).
- In the usual plans, storage is in the vaults of Loomis España, insured and in your name. In some, such as Moneda Club, the metal is kept on SilverGold's own premises. Check it in each contract.
The contract also provides for its termination if either party enters insolvency proceedings, although the law treats such a clause as void as a general rule (article 156 of the Consolidated Insolvency Act). And even if a contract ends, that does not decide who owns the metal. That is settled by the identification of the pieces and your documents.
Common mistakes
- Trusting the word «physical». Gold existing somewhere does not mean any of it is yours.
- Not chasing the annex. If the list of pieces does not arrive within the contract deadline, ask for it in writing.
- Signing without reading the use clause. If the custodian can lend or move your metal, it is no longer a deposit.
- Ignoring warning signs such as promised gains, pressure to hurry or payments to third-party accounts. We go through them in how to spot gold scams.
- Telling nobody. If your family does not know where the papers are, they will struggle to claim the metal (see inheriting physical gold).
When to get help
Before signing, if the contract does not clearly say the metal is yours and kept apart. Afterwards, if the list of pieces never arrives, if the company stops answering or if it enters insolvency proceedings. In that case, do not wait: ask the insolvency administrator to separate your metal and send all your documents. If you are comparing offers, see what to check in a gold purchase contract.
Frequently asked questions
What is the difference between allocated and unallocated gold?
With allocated gold, specific pieces with serial numbers are recorded in your name. With unallocated gold you only have a balance of grams or ounces with a company, and no piece is yours.
If the company holding my gold goes bust, do I lose it?
If it is identified as yours, you can ask for it to be handed over. If not, you usually end up as an ordinary creditor. It depends on the case and your evidence.
Which article of Spanish insolvency law protects my gold?
Article 239 of the Consolidated Insolvency Act, which governs the separation of property of others held by the insolvent party.
Which documents prove the gold is mine?
An invoice in your name, a list of pieces with serial numbers or photos, the deposit contract and the identified seal.
Can the custodian use or lend my gold?
Not without your express permission (article 1767 of the Spanish Civil Code). If the contract allows it, it becomes a loan and you stop being the owner (articles 1768 and 1753).