Proposta di acquisto: making an offer on a home in Italy

What the document is, legally

Under article 1326 of the Civil Code a contract exists when the person who made the proposal learns that the other side has accepted. The acceptance must reach the proposer within the time he or she set, or the time normally needed given the nature of the deal. An acceptance that does not match the proposal counts as a new proposal. For a buyer this has a practical consequence: if the seller crosses out the price or adds a condition and signs, you have not yet bought anything; you have received a counter-offer, and it is your turn to accept or refuse.

Article 1337 adds a general duty to behave in good faith during negotiations and in forming the contract. It applies to both sides, including the seller who encourages you to spend money on a valuation while negotiating with someone else.

When you cannot withdraw

Article 1329 says that if the proposer has bound himself to keep the proposal open for a certain time, revoking it has no effect during that time. If the form contains such a period, then while that period runs, you cannot simply change your mind. The sources read do not say what happens to the deposit if the seller lets the period run out, so check how the form treats its return and who holds the money in the meantime.

Proposal, preliminary contract, deed: do not mix them up

The notariato distinguishes the proposal from the preliminary contract. A preliminary contract obliges both parties to sign the final deed; a proposal commits only the person signing it until the seller accepts. The Agenzia delle Entrate adds a tax point: the proposal itself is not subject to registration, and neither is an acceptance that is not enough on its own to create a preliminary contract. An acceptance whose clauses are sufficient and necessary to form a preliminary contract is different, and an agent must have it registered. Ownership passes only at the notarial deed (see the deed guide).

The deposit that comes with the offer

The sum paid with the proposal is often called a caparra or deposit, but the word on the form does not settle its legal nature. Whether it is a caparra confirmatoria (article 1385) or an advance on the price changes what you lose if you pull out. The consequences are set out in the caparra guide. Ask for the money to be paid by traceable means and for a receipt that names the payee, and ask how the cheque or transfer is held until acceptance.

What to write into the offer

The notariato recommends contacting your own notary before signing a proposal, since a proposal is already a binding commitment. Points worth settling in writing:

• the exact property, with its cadastral data (see cadastral search) and what is sold with it (cellar, parking space, furniture);
• the price and how it will be paid, including any mortgage condition if you need a loan;
• the validity period and the target date for the preliminary contract;
• the seller’s statements on planning status and on mortgages or seizures (see due diligence);
• who pays the agent and how much, in writing.

The agent and the commission

An agent is a mediatore within article 1754: someone who brings parties together without being bound to either by cooperation, employment or representation. Under article 1755 the agent is entitled to a commission from each party if the deal is concluded through his or her intervention. The amount and its split, absent agreement, tariffs or local usage, are set by a judge in equity. No percentage is fixed by the articles read here, so ask the agent for the figure and who bears it before you sign. Payotte lists no commission rate.

Which professional to consult

A notary can read the form before you sign it; the notariato advises doing so. A real estate agent usually supplies the form, so remember that the form comes from the intermediary. A surveyor can examine the building’s records while the offer is still open.