Deposit contract (contrato de arras) in Spain: check it before you sign
The arras contract fixes the deal — and it also fixes the price of walking away from it. One missing word decides whether you get your deposit back. There is no cooling-off period: once you sign, you are in.
- Código Civil art. 1454
- arras penitenciales
- arras confirmatorias
- no cooling-off
01What an arras contract actually fixes
A deposit contract (contrato de arras) is the short private agreement signed before the notary deed. You typically hand over around 10% of the price, and the document fixes the essentials: the exact property and price, the deadline to sign the deed (escritura) before a notary, who pays which costs, and — most importantly — what happens if either side pulls out.
Spanish law gives that last question a precise answer only if the contract does. Article 1454 of the Civil Code says that with penitential arras the buyer may walk away losing the deposit, and the seller may walk away returning double the deposit. That protection does not apply automatically — it depends on the wording you sign.
Two things surprise foreign buyers most. First, there is no cooling-off period: an arras contract binds you from the moment of signature. Second, the money usually goes to the seller or the agency immediately — so the paper you sign is the only thing protecting it.
02Three kinds of arras — and the default trap
Spanish practice distinguishes three kinds of deposit, and the difference is not academic — it decides whether you can exit the deal at a known price.
- Penitential arras (arras penitenciales) — the art. 1454 regime: buyer exits by losing the deposit, seller exits by returning double. This is the only kind that gives both sides a clean, pre-priced way out.
- Confirmatory arras (arras confirmatorias) — the deposit is simply an advance on the price. Nobody gets a free exit: if a party fails to complete, the other side can demand performance of the sale or damages through the courts.
- Penal arras (arras penales) — the deposit works as a penalty for breach, but on its own it still does not give a right to walk away.
03The clauses that decide who loses money
Here is the trap: if the contract does not expressly say the arras are penitential and refer to the art. 1454 regime, Spanish courts treat the deposit as confirmatory by default. A buyer who thought “worst case, I lose my 10%” can instead be sued to complete the purchase or pay damages.
Beyond the type of arras, these are the points that most often cost foreign buyers real money:
- No financing condition. If your purchase depends on a mortgage, the contract needs an express condition (condición suspensiva de financiación) returning the deposit if the bank says no. Without it, a refused mortgage means a lost deposit.
- Vague completion deadline. “Within approximately three months” is a dispute waiting to happen. You need a hard date, and it must leave time for your NIE, bank account and mortgage approval.
- Who holds the money. Deposit paid to the agency without a written mandate from the seller is a classic conflict scenario. The contract must say who receives it and on whose behalf.
- “Free of charges” not verified. The contract should state the property is free of debts, tenants and charges — and you should verify it against a fresh land-registry extract (nota simple) before signing, not after.
- Costs “according to law” with no detail. Notary, registry, taxes: say who pays what expressly.
- Signer without authority. If the person signing is not the registered owner (or all of the owners), the arras may bind nobody but you.
Been sent an arras contract? Don’t sign it blind.
Upload the contract — a legal review shows the type of arras, the risky clauses and exactly what to ask to change, in your language.
04If someone walks away: who pays what
With properly drafted penitential arras the math is fixed in advance. If you, the buyer, withdraw — you lose the deposit. If the seller withdraws — for example, because another buyer offered more — the seller must return your deposit doubled (art. 1454 Código Civil: “podrá rescindirse el contrato allanándose el comprador a perderlas, o el vendedor a devolverlas duplicadas”).
In practice sellers rarely volunteer the double return. The route is a formal written demand — in Spain that means a certified letter (burofax) with proof of content and delivery — followed, if needed, by a court claim. The arras contract itself is your key evidence, which is another reason its wording matters.
If the deadline passes because of circumstances outside both parties — say, the notary appointment slipped — the honest answer is negotiation and a written extension (anexo), not silence. Never let an arras deadline expire without a paper trail.
05What to verify before signing (the 20-minute list)
You do not need a law degree to avoid the classic traps. You need the document checked against this list before your signature, not after:
- The word “penitenciales” and a reference to art. 1454 — or a conscious decision that you accept a stricter regime.
- A financing condition if you need a mortgage.
- A hard completion date with margin for NIE and bank steps.
- A fresh nota simple: owner matches the signer, no charges, no surprises.
- Who holds the deposit and on whose behalf.
- An express cost split (notary, registry, taxes).
“RightNOW was born from a very simple foreigner’s pain: in Spain you can be right and still lose months to one form, one deadline or one wrong next step. So here we first put the facts in order — and only then choose the action.”
Made by foreigners, for foreignersFAQFrequently asked questions
Is 10% a legal requirement?
No. The ~10% deposit is market practice, not law. The amount is negotiable — what matters legally is the type of arras and the exit rules the contract fixes.
Can I sign an arras contract before I have my NIE?
Yes — a passport identifies you for the private contract. But you will need the NIE for the notary deed and taxes, so the completion deadline must leave time to obtain it. That timing belongs in the contract.
What happens if my mortgage is refused?
Unless the contract contains an express financing condition, a refused mortgage is your risk: walking away means losing the deposit. With the condition, the deposit comes back. This is the single most important clause for buyers who finance.
Is the agency “reservation contract” the same as arras?
Usually not. A reservation (documento de reserva) is often signed with the agency, sometimes before the seller has agreed to anything, and its legal effect varies. Check who signs it, where the money goes and whether it converts into arras — before paying.
Can the deadline be extended?
Yes, by written agreement of both parties (an annex). Never rely on verbal promises: if the deadline lapses without an extension, the exit rules of the contract apply.
Informational material, not legal representation. The safe course of action depends on the exact wording of your contract, the property and the deadlines. Verified against BOE (Código Civil, art. 1454) as of July 2026.
🏠 Spanish property taxes love surprises. Hear about them early — not from a penalty letter.
Modelo 210, IBI, plusvalía, the non-resident tax — amounts and deadlines change, and Hacienda won’t remind you. Leave your email: we’ll warn you of deadlines and changes early, in your language.
Need everyday protection, not just a one-off check?
Included: checks of Spanish documents, letters, requests and contracts before signing, Action Plans, consultation and sending your claims by burofax.