Arras deposit contract in Spain: if someone walks away

What the Civil Code says

Article 1454 of the Código Civil has a single sentence. In the BOE consolidated text (last update shown: 3 January 2025) it reads: “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 plain English: where arras or a señal were handed over in a sale contract, the contract can be undone if the buyer accepts to lose the sum, or if the seller accepts to give it back twice over.

Three points follow from the wording itself:

• The article speaks of a right to withdraw (“podrá rescindirse”). The party who withdraws does so by accepting the stated consequence, not by proving a fault of the other side.
• The buyer’s price of withdrawing is the sum already paid. The seller’s price is that sum plus an equal amount, so twice the deposit leaves the seller’s hands.
• The article does not give a percentage. The amount of the deposit is whatever the parties wrote in the contract.

The words “confirmatory”, “penitential” and “penal” do not appear in the article. They are used in practice, and the next section reports what the notaries’ council says about them.

Confirmatory and penitential arras

The notaries’ council page answers the question “is the arras contract compulsory?” with the words “Este documento no es obligatorio, pero la ley lo considera un contrato válido”. It then describes two kinds of arras:

• Confirmatory (arras confirmatorias): the buyer hands money to the seller “como señal de la perfección del contrato y a cuenta del precio”. The sum confirms the agreement and counts toward the price. The page does not describe a right to withdraw for this kind.
• Penitential (arras penitenciales): these apply only if the parties agreed them. If the buyer breaks the deal, the buyer loses the deposit; if the seller is at fault, the seller returns double. This matches the mechanism of art. 1454.

The same page does not mention “penal” arras, so this guide does not describe them. The page also recommends consulting the notary of your choice before signing any document or paying any money. Which label applies to your contract depends on what the contract says, so read the clause and ask a lawyer or notary to explain it.

If the buyer walks away

Where the contract provides for penitential arras and the buyer withdraws, art. 1454 says the buyer accepts “perderlas”: the deposit stays with the seller. A withdrawal under this rule normally ends the matter, because the loss of the deposit is the agreed price of leaving.

If the arras were drafted only as confirmatory, they count toward the price and the contract stays in force. The general rule of art. 1124 then matters: in a contract where both sides owe something, the right to terminate is implied if one party does not perform, and the injured party may choose between demanding performance and terminating, with damages and interest in both cases. Whether a particular buyer can claim to withdraw, or be forced to complete, depends on the contract text and the facts. That is a question for a lawyer, not a general rule this guide can settle.

If the seller walks away

Under the penitential mechanism the seller who backs out returns the deposit twice. As a formula: the seller gives back 2 × the deposit received, that is the deposit itself plus an equal amount on top.

A seller who has promised the home to another buyer, or who has sold elsewhere, therefore pays a price set in advance by the deposit. As above, other remedies for non-performance depend on the contract and the facts.

Arras is not the deed of sale

The arras contract is a private agreement made before the sale is completed. Under art. 1280 of the Civil Code, acts and contracts that create or transfer rights over real estate must be recorded in a public document, and art. 1462 adds that when a sale is made by public deed, signing the deed counts as delivery of the thing sold unless the deed shows otherwise. Art. 1278 states that contracts bind whatever form they take provided the essential conditions of validity are present. In practice you sign the arras first and the escritura pública (public deed of sale before a notary) later.

For the later steps, see the guides on the nota simple, the community debt certificate and the cadastral reference.

Before you pay a deposit

These checks cost little compared with a lost deposit. They are suggestions for reading your own situation, not a legal opinion:

• Read the clause that names the kind of arras and what each party loses by withdrawing.
• Check the deadline by which the deed must be signed and who pays which costs.
• Order a nota simple before paying, to see who is registered as owner and what charges are on the property.
• Check which documents the seller must provide at the deed, such as the energy certificate and the community debt certificate.
• Pay by traceable bank transfer and keep the receipt.

Which professional to consult

A lawyer registered with a Spanish bar association (colegio de abogados) can read the arras contract before you sign it. A notary can also explain it: the council’s page recommends consulting the notary of your choice before signing or paying. An agent’s draft does not replace independent advice. See the page on the property lawyer.