The types of contracts for the sale of real estate with installment of arrears
Our friend Javier asks us the following question:
"I have signed a confirmatory deposit agreement or sign with a real estate agent to buy an apartment for official protection. In the event that I backed out, what kind of consequences would it have? I have given a signal of € 1,000 and I have a period of 5 working days to complete the € 10,000 deposit that will be deducted from the final price.
The question is: If I back out and do not complete the remaining € 9,000.00 in these 5 days that I am given, I only lose the € 1,000.00 sign or I have some kind of responsibility and they can go against me and claim the remaining € 9,000.00 to which I committed myself with the signature of the deposit contract?
To answer the question correctly, we will first try to explain what a sales contract is and what are its essential elements and the accidental elements of the contract.
Articles 1254 and 1258 of the Spanish Civil Code provide the following:
- The contract exists since one or several people agree to be bound, in respect of another or others, to give something or provide some service,
- Contracts are perfected by mere consent, and since then they have obligated not only the fulfillment of the expressly agreed upon, but also all the consequences that, according to their nature, are in accordance with good faith, use and law.
And according to article 1261 of the civil code, the essential elements that prove the existence of a valid contract are represented by the consent of the contracting parties, the object that is the subject of the contract and the cause of the obligation that is established.
The accidental elements, the condition and the term, may be present at the will of the parties in a specific contract and their presence is not essential or determinant so that it can be referred to as a valid contract, but once integrated into a contractual agreement they assume an extraordinary importance.
Once clarified what is a contract of sale we will go into detail with the contracts of sale of a property, which in our case we speak of a floor of official protection.
A deposit contract as such DOES NOT EXIST, in fact it is not even a contract. What you have signed is a private contract of sale that includes among its clauses a pact of deposit and in which the delivery of the property is agreed and that the payment of the rest of the price is made within a maximum period of time that will coincide with the public elevation of the sale.
Once we have the description of a purchase agreement with the delivery of a deposit, we will know what are the types or classes of deposit provided by law and the consequences that result from the failure of each of them.
PURE CONFIRMATORY ARRAS
They are used as a signal that proves the perfection of the private sale contract. This type of deposit is usually identified with the advance payment of part of the purchase price that will finally be deducted from the final price.
The selling party, in the event of breach of contract, may make the delivered quantities their own, as well as demand compliance with the sales contract, or access the termination of the contract for non-compliance and requesting the buyer, in both cases, the compensation for damages and the payment of interest.
CRIMINAL CONFIRMATORY ARRAS
The criminal confirmatory deposits, like the pure ones, act as proof of the contract, but they also sanction the breach of the contract, acting as an optimal instrument of prior fixing of the eventual claim of damages.
The penitential deposits unlike the previous ones offer the possibility to the buyer and seller to freely withdraw from the contract of sale without needing to claim any cause or justify the reasons for the withdrawal. The first being smoothed, to lose them and the second, to return them in duplicate.
First of all, say that without being able to see the document in question, the response may be suspended, but based on the request and assess the data provided, we can conclude that being a contract of purchase of confirmatory deposits, the selling party may require the fulfillment of the contract of sale and request the indemnification of damages and the payment of interests.
From Fincabia we recommend that you go to a professional and ask for legal advice to find the best solution to your case.