The Spanish deposit contract — what it commits you to

The deposit contract is where a Spanish purchase stops being a conversation. If it is drafted as arras penitenciales under Código Civil art. 1454, either side may withdraw at a price: the buyer forfeits the deposit, or the seller returns it doubled. If not, walking away may not be possible.

The three kinds of arras

The Spanish word is arras — a sum handed over on signing a private purchase contract, before the deed. English has no equivalent, and all three of the usual translations mislead.

There is one article. Código Civil art. 1454, in full:

«Si hubiesen mediado arras o señal en el contrato de compra y venta, podrá rescindirse el contrato allanándose el comprador a perderlas, o el vendedor a devolverlas duplicadas.»

In English: where a deposit or earnest sum has passed under a contract of sale, the contract may be rescinded, the buyer accepting the loss of the sum, or the seller returning it doubled.

That is the whole of the statute. We searched the full consolidated text of the Código Civil on 26 August 2026: art. 1454 is the only article in the entire Code that uses arras in a contractual sense, and the words confirmatorias, penitenciales and penales do not appear as a classification anywhere in it.

The classification is judge-made. It comes from the Supreme Court reading art. 1454 narrowly, alongside art. 1255, which lets parties agree what they like. The clearest official statement of it we could obtain is a Resolución de la DGSJFP de 20 de octubre de 2023, published in the BOE, which sets out all three in its own reasoning:

«hay que distinguir entre las arras confirmatorias, que son aquellas en las que el comprador entrega una suma de dinero a cuenta del precio convenido […] por tanto no cumplen una función de garantía ni autorizan para desistir del contrato; las arras penitenciales, que son las arras que autorizan el desistimiento […]; y las arras penales, que son aquellas que funcionan como una garantía del cumplimiento del contrato, sustituyendo la indemnización de daños y perjuicios, pero sin autorizar el desistimiento.»

| Kind | What the money is | Can you walk away? | |---|---|---| | Confirmatorias | A payment on account of the price | No. The other side can require you to complete | | Penitenciales | The price of the right to change your mind | Yes, on the art. 1454 terms | | Penales | A pre-agreed compensation for breach | No. The other side chooses between keeping the money and requiring you to complete |

And the rule that matters most: which kind it is depends on what the contract says, not on what it is called. The same DGSJFP resolution records that the Supreme Court treats the withdrawal right as exceptional and refuses to presume it, so that where the wording is not unmistakable the money is treated as a plain payment on account. Naming art. 1454 in a heading does not create the right.

This page does not tell you which kind yours is. We have not read your contract and we never will. That is a question for a lawyer, and it is the single best-value hour anybody spends on a Spanish purchase.

Contrato de arras in English

The phrase contrato de arras has no exact English equivalent, and the three words a British buyer reaches for each mislead in a different direction.

"Deposit contract" suggests a holding payment, which understates it: this is a binding contract of sale with a deposit inside it. "Exchange" imports the English idea that solicitors on both sides swap signed contracts on an agreed day, which does not happen here. "Reservation" is worse, because there is a separate Spanish document that really is a reservation and it is not this one.

Spain has no exchange of contracts, no chain, no gazumping in the English sense, and neither freehold nor leasehold. If a page about Spanish conveyancing reaches for English conveyancing vocabulary, nobody who knows the market wrote it.

Reserva and arras are not the same thing

An estate agent will often ask for a reserva — a smaller sum, paid to take the property off the market for a short period while the contract is drawn up.

Two things a British buyer routinely gets wrong about it. The first is that the reserva is frequently paid to the agent rather than the seller, which means the person holding your money is not the person selling you the property. The second is that a reservation document can contain terms that bind you more than the word suggests, and the conditions for getting the money back are whatever that document says they are.

Read it. It is usually one page, and it is the first page in the transaction with your money on it.

What the contract should state

| It should identify | Because | |---|---| | The parties, in full | The seller must be the person the register says owns it | | The finca number and the registry office | An address is not an identification | | The cadastral reference | It is the key to the other system, and to the size question | | The price, and what is included | Fixtures, furniture and the garage are not assumed | | The deposit and its legal character | Whether art. 1454 applies is the entire question | | The completion date | And what happens if it slips, on either side | | Who pays which tax and fee | The default allocation is not always what is agreed | | What happens if a charge appears on the register before completion | This is the clause most private contracts omit |

What to check before the money leaves your account

This is the section the whole of this site funnels into. Before you transfer anything:

1. Read the register. The land registry extract costs 9.02 euros plus IVA per property from the Colegio de Registradores, and it will tell you who owns the property and what is charged against it. What each field means is on the nota simple explained.
2. Check the seller is the registered owner. Not the agent, not a company with a similar name, not one of four co-owners.
3. Check the charges section. A mortgage, a seizure or an easement follows the property, not the seller.
4. Ask about the licence position. Whether the building has a first-occupancy licence, and whether anything has been built or extended since.
5. Ask for the community of owners certificate. Unpaid charges are not on the register, and gov.uk warns that a new owner can inherit debts for the current and previous year.
6. Have somebody who acts only for you read the contract. The routes and what each publishes are on who checks a Spanish property, and what a lawyer actually does with a contract like this is on what a Spanish property lawyer does.

What this page does not cover

It does not cover off-plan purchases, where a different regime of bank guarantees applies and gov.uk has useful material. It does not cover what happens if a dispute goes to court. It does not tell you whether your own contract creates a right to withdraw.

And it does not offer a template. There is no model contract here, nothing to download, and no drafting. Drafting a contract is the work of a lawyer, and it is a line this site does not cross in either direction.

The purchase sequence this contract sits in the middle of is on buying property in Spain, what the whole thing costs is on what buying a property in Spain costs, and every Spanish word above is in the glossary.

We are not lawyers and this is not legal advice. Before you commit money, instruct an independent lawyer who acts only for you.