Offer, deposit and preliminary contract: the buyer's protections
The signature that binds you hardest is the first one, the one that feels informal. Worth knowing what it says before you put it there.
The offer is already a commitment
An irrevocable offer binds you from the moment you sign it, for the whole stated period: you cannot withdraw it, and if the seller accepts within that period the contract is made. That it is a one-page form rather than a notarial deed changes none of this.
So before signing, read three things: how long the irrevocability lasts, what happens to the sum paid in each scenario, and which conditions are written in. If the mortgage condition is missing and you need a mortgage, that offer should not be signed as it stands.
Which kind of deposit
These are two different things and the contract has to say which. With a caparra confirmatoria, if the buyer defaults the seller keeps it; if the seller defaults, they must return double. In either case the party not in default can instead insist on performance.
With a caparra penitenziale, the sum is the price of walking away: whoever withdraws loses it and the matter ends there, with no further claims. For a buyer the difference is substantial, and the classification is in the wording: if nothing is said, the rules for the confirmatoria apply.
The registered preliminary contract
A preliminary contract signed between the parties is an agreement between the parties: if the seller meanwhile sells to somebody else, or is subject to enforcement, the buyer has a claim in damages and nothing more. A preliminary contract drawn up by a notary and made public in the property registers is a different thing: it makes the purchase good against third parties and protects the sum already paid.
It costs more — one extra notarial act — and so is rarely asked for. It is worth considering when a long time separates the preliminary from the deed, when the advance is substantial, or when the property is still being built. In this province the point weighs a little heavier, because ownership only passes on registration.
Holding the price with the notary
This is the second little-known protection, and in South Tyrol it answers the most natural question a buyer has: “I pay everything today and become owner in weeks — what if something happens in between?” At the request of either party the notary can hold the price in a dedicated account and release it once the formalities are completed.
Sums in the notary's dedicated account are beyond the reach of either party's creditors. It is a request made to the notary before completion and, in our experience, almost no buyer knows it can be made.
In short
- Read how long the offer stays irrevocable before signing
- Check that the deposit is expressly classified
- Include the mortgage condition, with amount and deadline
- Consider a notarial preliminary contract for long timescales or large advances
- Ask the notary to hold the price in the dedicated account
- Always pay traceably and keep the receipts
- Get a copy of everything you sign, immediately
The questions we are asked most
I signed an offer and changed my mind: can I withdraw?
If the offer is irrevocable, no — not while the stated period runs: that is exactly what the word means. If the seller has not yet accepted and the period has expired, the offer lapses. Which is why the length of the irrevocability is to be read beforehand and is not a detail of the form.
How much deposit is usual?
There is no amount fixed by law: it is agreed. What matters more than the figure is that the contract says clearly what kind of deposit it is and when it comes back. A large deposit with no mortgage condition is the most damaging combination, and we still see it often.
Does a notarial preliminary cost much more?
It means one more deed and therefore one more cost, which the notary will quantify along with the quote for completion. The right comparison is not with zero: it is with the advance you are paying and how long it stays exposed. On large sums or long timescales the sum often changes sign.
Official sources
Note
This guide is general information written by an estate agency. It does not replace advice from a notary, an accountant or the surveyor handling the property. The rules cited are those in force at the date of publication.
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