Investment approach
Spanish arras: how penitenciales, confirmatorias and penales differ
The Spanish property deposit comes as three types of contract, each with different consequences if one side pulls out. Mixing them up costs money.
A deposit under an arras contract in Spain comes in three types, and the type decides whether you can walk away from the deal. Arras penitenciales let you withdraw at a price known in advance: the buyer forfeits the deposit, the seller returns double. Confirmatorias and penales give no free right to withdraw, and if the contract does not expressly name the type, the deposit is treated as confirmatorias by default.
Arras penitenciales: walking away at a price
A contrato de arras is a preliminary agreement, backed by a deposit, signed before the main purchase. In law it takes three distinct forms, and confusing them is a frequent cause of disputes. For a property in Barcelona, arras penitenciales are governed by article 621-8 of the Catalan Civil Code (Codi civil de Catalunya, CCCat); elsewhere in Spain, by article 1454 of the Spanish Civil Code (Código Civil). They give each party the right to pull out of the deal for compensation: a buyer who withdraws forfeits the deposit, and a seller who withdraws must return it doubled. In the residential market this is the classic and most common type of deposit.
Confirmatorias and penales: stricter for both sides
Arras confirmatorias give no right to walk away freely. Here the deposit is simply an advance on the price, and the party acting in good faith can go to court to have the contract enforced; its rights are not limited to monetary compensation. Arras penales combine elements of both: a penalty agreed in advance applies if a party withdraws, but unlike penitenciales it does not replace the right to demand performance of the contract. The exact consequences depend on the precise wording of the clauses.
Why the deposit type must be stated expressly
In Catalonia the rule is written into the statute: under art. 621-8 CCCat, money handed to the seller counts as arras confirmatorias, and penitenciales must be agreed expressly. Elsewhere in Spain, Supreme Court case law reaches the same result. So the contract should state in terms that the deposit is penitenciales. What matters is not a reference to a particular article but a clearly agreed term: without one, the parties may lose the right simply to walk away by forfeiting the deposit or returning it doubled. The wording of the contract is not a technicality here: in a dispute, it decides the outcome.
The CCCat also has an exception (art. 621-49). If the contract provides for part of the price to be paid with a bank loan and the bank turns the loan down through no fault of the buyer, the buyer can withdraw without losing the deposit. The refusal has to be documented within the period set in the contract, and the contract can exclude this right.
What an investor should check before signing
Before signing an arras contract, an investor needs to be clear on two things: the amount of the deposit and its legal type. The type determines what happens if due diligence turns up a problem after signing. How to check a property before and after the arras stage is set out in our due diligence checklist.
Questions and answers
Which type of arras is most common in the Barcelona market?
Arras penitenciales: they leave both parties a way out of the deal, and for residential property this is the most widespread practice. But which type applies in a particular deal is decided by the wording of the contract, not by market custom.
How large is an arras deposit usually?
Typically 5–10% of the property price. The law does not fix the amount; the exact sum is for the parties to negotiate.