The preliminary sale
The preliminary contract is the act, by which the parties undertake to complete by a certain date and under certain conditions, the final contract of purchase (Notaries deed) which, however, anticipate the modality.
The preliminary should contain all of these essential elements:
- A precise description of the property;
-The right identification of the owner;
-The right identification of the purchaser;
-The sale price and its payment;
-The deadline for concluding the final contract.
Also other elements that are crucial although not essential to reach the final at the time of sale, let us never forget that the deed has a function of declarative and reproductive outset, then the preliminary should also contain:
- the obligation of the seller and buyer;
- the condition of sale and the guarantees;
- documents that guaranteed the origin of the property;
- the indication of the presence of any mortgage and registration formalities;
- the assessed valuation of the good;
- the date that indicate the possession of the property.
These are the reason why, a “preliminary agreement” (privately concluded) sets up legally valid commitments between the parties (and even executables such as forced by the intervention of the Judge). The preliminary may be signed as a private non-certified by the Notary, or as a public act. To enhance the protection of the purchaser, in addition, the legislature has provided that the preliminary agreement, signed necessarily a public act by a Notary Public or as a Private deed; they must be both transcribe in the competent Real Estate Registry.
This transcript has a "reservation" function, in sense that the buyer, after the preliminary, is protected by the prejudices that may arise from any act of disposal that the promise fulfilled alienating the asset to which the advance in the same period following its conclusion. This effect, however, terminate if, within one year after the agreed time limit (we see the importance of preliminary) or within three years from the transcript is not carried out the transcript of the final or equivalent document (for example the sentence of a Judge).
This applies has used even in cases where the contract relates to a setting-up building, but in this case, the preliminary report has other elements, such as the working surface portion of the building and the amount of fees payable to the buyer concerning the promise’s entire building, expressed in milliseconds (Protection of purchasers of properties to be built).
The transcript has a function to protect the buyer, because of the "perfection erga omnes", which determines the respect to the preliminary agreement in the sense that nobody, after completion of the transcript, can say that he was not aware of Preliminary transcript and therefore that property that was essentially "booked" the transcript puts the buyer free from any harmful matter affecting the property (for example: mortgages or foreclosures) in the time between preliminary and final, even in case of bankruptcy of the seller of the preliminary makes it much easier to recover all or part of the amounts paid (when the promise purchaser has failed a privileged position compared to the atria creditors). It should be remembered that the transcript of the preliminary contact, and with the intervention of the Notary is a possibility that the parties can use, while there 's obligation on the parties and now Realtor is to provide for the registration of the contract, while otherwise negotiated privately.
The registration of the preliminary agreement doesn’t give to the promise purchaser any protection, contrary to the transcript, except for the advantage of the precise date of the preliminary contract. In case of failure, where the seller is an entrepreneur, the preliminary agreement is not enforceable to failure if you do not have the same date that is prior to the date certain is conferred by registration. The registration of the preliminary has a tax valence, the payment of taxes to the State.
From the conclusion of the compromise are born rights and obligations between the parties, who find their recognition in art. 2932 Civil Code. Under this provision, if a party obliged to enter into future contract does not fulfill this obligation, the counterparty may obtain from the judge, as we said earlier, a decision that produces the effects of the final contract is not concluded.
The legal deposit is an advance on the purchase price of the property that is paid by the purchaser at the time of the compromise. As such, commits both parties to conclude the deal. This means that if the buyer withdraws out of the deal, the seller may withdraw from the holding deposit. If the seller withdraws the commitment, the buyer may cancel the contract and demand the double of the deposit. Who does not pull back out of the deal may also choose a different route and ask the judge that the specific performance of the contract (art. 2932 cc), or the resolution of the latter for counterparty default and the damages, with the result that, in the latter case, the deposit will serve to ensure the credit for the damages. If the compromise simply speaks of a deposit, this term refers to the “legal deposit”.
The penitential deposit is defined by the Civil Code "the amount of the withdrawal of each of the parties" (art. 1386 cc). With this method, the parties agree the right to terminate the contract if they deem it necessary, by paying just a deposit of penance. If the person who withdraws it is the buyer loses the amount paid, but if the seller is the commitment to withdraw must return double the amount received. Nothing else can claim the other Party in the form of specific performance of the contract or in the form of damages. Be careful not to pay a deposit too low, because the seller might change his mind or even sell to a third person who offers a price difference that exceed the deposit to be returned.