The Preliminary Contract Deposit Trap (2026): Arras, Compromis & Caparra Explained

Published on: June 15, 2026

Quick answer: In civil-law Europe you can lose money before you ever complete, at the preliminary-contract stage, not the notary. What happens if you pull out depends entirely on the type of deposit named in your contract. Spanish arras penitenciales and Italian caparra penitenziale let you walk away at a fixed cost; arras confirmatorias and caparra confirmatoria can force you to complete or pay damages. Read the clause; never assume.

Most cross-border buyers worry about the wrong stage. They obsess over completion, the notary, the final deed, the transfer of funds, and treat the preliminary contract as a formality to rush through. It is the opposite. In civil-law Europe, the preliminary contract is where the deal becomes real, where your deposit goes down, and where the money is most easily lost. By the time you reach the notary, the expensive decisions have already been made.

This is not about off-plan escrow, where new-build deposits are protected by statutory guarantees. This is about the resale preliminary contract: the binding document you sign weeks before completion, with a deposit attached, and a clause that quietly decides what happens if either side walks away. Get that clause wrong and you can forfeit everything before you ever own anything.

Spain: the three faces of arras

Spain is the clearest illustration of why the deposit's name matters more than its amount. A Spanish deposit (arras) can be one of three legal types, and your contract names one of them, often in a single decisive line.

Arras penitenciales (Civil Code Art. 1454) are effectively the agreed price of walking away. The buyer who withdraws forfeits the deposit; the seller who withdraws returns double. Crucially, this grants both sides a right to withdraw, you are buying optionality. For a buyer who is not fully certain, this is the safest type to sign.

Arras confirmatorias confirm the sale and do not grant a right to withdraw. They are a down payment on a binding deal, so a buyer who defaults can face a claim for damages or even be compelled to complete.

Arras penales function as a penalty clause and can be the harshest of all, depending on drafting.

The expensive mistake is assuming your deposit is "penitenciales" (your cheap exit) when the contract actually says "confirmatorias" (no exit, real liability). Read the clause; do not assume.

France: the compromis, the promesse, and the 10-day window

France gives buyers a genuine safety valve, but only briefly.

There are two main preliminary contracts. The compromis de vente (synallagmatic) binds both parties: in principle, the sale is made. The promesse unilatérale de vente binds only the seller to hold the property while granting the buyer an option, usually against an immobilisation payment.

What protects the private residential buyer is the 10-day cooling-off period (délai de rétractation): after signing the preliminary contract, you have ten days to withdraw and recover your deposit in full, no reason required. A dépôt de garantie of roughly 5–10% is typically held during this period. The trap is timing. Inside the ten days, you are safe. After them, your deposit is at risk if you fail to complete for a reason not covered by a condition suspensive (a get-out clause for events like a refused mortgage). Buyers who treat the cooling-off period casually, or who let it lapse before their financing is confirmed, are the ones who lose deposits.

Italy: caparra confirmatoria vs caparra penitenziale

Italy mirrors the Spanish logic with two deposit types that sound almost identical and behave very differently.

Caparra confirmatoria (Civil Code Art. 1385) is the default and the dangerous one. If the buyer defaults, the seller keeps the deposit; if the seller defaults, they must return double, and the non-defaulting party can instead demand performance plus full damages. It confirms the deal rather than pricing an exit.

Caparra penitenziale (Art. 1386) is the gentler version: it is expressly the agreed price of withdrawal, capping each side's exposure to the deposit itself, with no right to demand completion or extra damages.

Before either, buyers often sign a proposta irrevocabile d'acquisto (an irrevocable purchase proposal) that already commits them once accepted, and a contratto preliminare that can, and should, be registered (trascrizione) to protect the buyer against the seller selling twice or encumbering the property in the interim.

Germany: no informal deposit, everything through the notary

Germany is the outlier, and in a good way for buyers. There is no culture of handing over an informal deposit on a handshake. A German property sale is binding only when notarised, until the Notar records the deed, neither side is legally locked in, and no deposit is typically forfeited.

The grey area is the reservation fee (Reservierungsgebühr) some agents request to take a property off the market. German courts have repeatedly struck down reservation fees that are too high or too one-sided, treating them as unenforceable. So if you are asked for a large, non-refundable reservation payment before any notary appointment, push back and take advice, your real commitment point is the notarisation, not the agent's request.

The deposit trap at a glance

The one rule that ties it all together

Across all four countries, the same principle holds: the type of preliminary instrument, not the headline price, decides your downside. Two contracts with an identical 10% deposit can leave you with a clean €30,000 exit or an obligation to complete a €300,000 purchase. Before you sign anything before the notary, have a local lawyer tell you exactly which instrument you are signing and what happens if either side walks.

Frequently asked questions

What happens to my deposit if I pull out of a purchase in Europe?
It depends on the deposit type named in the preliminary contract. Some let you withdraw at a fixed cost; others expose you to forfeiture, paying double, or forced completion.

What's the difference between arras confirmatorias and penitenciales?
Penitenciales (Art. 1454) price an exit, forfeit the deposit or return double, and either side may withdraw. Confirmatorias confirm the sale with no withdrawal right, so default can mean damages or forced completion.

Does France give buyers a cooling-off period?
Yes, a 10-day cooling-off (délai de rétractation) after signing, with a full deposit refund if you withdraw in time. After 10 days, the deposit is at risk.

Can I lose money before completing?
Yes. The preliminary-contract stage is exactly where buyers most often lose funds, by missing a cooling-off window or signing the wrong deposit clause.

Know what you're signing

This is the contract logic that changes in every country, and it pairs directly with knowing how making an offer actually works market by market. JanusHermes breaks down the transaction process country by country, so you know what you're signing before you sign it. Browse listings and country intelligence on JanusHermes.

This guide is general information, not legal advice. Always have a qualified local lawyer review your preliminary contract before paying any deposit.

A note on the numbers: where no source is named, the market figures in this article (prices, yields, costs) are indicative estimates compiled from publicly available market data and industry reporting at the time of writing. Markets move and rules change, so treat them as a starting point and verify current figures with official sources before acting on them.