The promise to sell and the sales agreement

Updated on Friday 21 January 2022

Are you about to sign a sales agreement? This is known as a "preliminary contract". The sales agreement and the promise to sell are two preliminary contracts with different consequences for the buyer and the seller.


The unilateral promise to sell

In the promise of sale (also known as "unilateral promise of sale"), the owner (named the promisor) undertakes to the buyer (named the beneficiary) to sell him his property at a determined price. Therefore, this gives him an exclusive "option" for a limited time (generally two to three months).

During this period, he is forbidden from renouncing the sale or offering the property to another buyer. The prospective buyer benefits from an option period to decide whether he wishes to buy or not. An indisputable advantage! In return, he pays the seller an immobilization indemnity in principle equal to 10% of the sale price. If he decides to acquire, this compensation will be deducted from the amount which needs to be paid. But if he doesn’t choose to buy (outside the 10-day withdrawal period or the non-obtaining of his credit) or if he does not express his acceptance within the option period, the indemnity will remain with the owner in compensation of the capital asset. 

In order to be valid, the promise of sale must be observed by an authentic deed or by a deed under private signature registered with the tax office, within ten days of its acceptance by the beneficiary. Moreover, when it is granted for a period of more than 18 months, it must be carried out by notarial deed. The registration fees, paid by the purchaser, amounts to €125.

Often in a hurry to conclude, buyer and seller sometimes imagine that the signing of the preliminary contract does not commit to much. This is definitely not true: despite its name, this preliminary agreement is actually a real "contract", which leads to important obligations for both parties. It allows them to specify the conditions of the future sale and marks their agreement. Although it is not legally obligatory, this document is essential.

The sales agreement

In the sales agreement (or "synallagmatic promise to sell"), seller and buyer both undertake to round off the sale at a price which has been set by mutual agreement. Legally, the sales agreement is therefore worth a lot. If one of the parties renounces the transaction, the other can force it by way of deleted justice text. 

The signing of the agreement is accompanied by the payment by the purchaser of a sum generally of 5% to 10% of the sale price. This is known as a security deposit; it will be deducted from the price when the notarial act has been signed. 

Unlike the promise of sale, the sales agreement does not need to be registered with the tax authorities. This absence of costs can appear as an asset. However, in the event of a dispute as to the fulfillment of the conditions precedent, the parties shall remain bound by the sales agreement, unless there is an amicable agreement or a court decision, whereas in the case of a unilateral promise to sell, the parties regain their freedom. if the option has not been exercised by the acquirer.

The purchase offer or price offer

Indifferently known as offer to purchase, unilateral promise to purchase, or even simply a price offer, this document presented by some real estate agents should be considered carefully Its main feature is to engage only the buyer, not the seller.

The seller must notify its acceptance within the time limits and in the form which has been provided for in the offer (generally via registered letter with acknowledgment of receipt). If he accepts the offer at the price which has been proposed by the potential buyer, the sale is deemed concluded and a preliminary contract will then be signed. However, if it is a residential property, the purchaser retains the possibility of withdrawing within 10 days.

On the other hand, the buyer regains his freedom, if the seller makes a counteroffer (at a different price) or if he does not respond within the time limit.
An elementary precaution consists in including in the offer, the terms of the purchase and in giving the seller only a short period of time (one week or fifteen days) to give his answer.

No payment may be required from the buyer, under penalty of nullity of the offer (article 1589-1 of the Civil Code).

Suspension clauses: exceptions to the commitment

Whether it is a promise of sale or a sales agreement, buyer and seller can decide via mutual agreement to insert suspensive clauses. These make it possible to predict the nullity of the preliminary contract if certain events occur before the final sale (each of the parties then regaining their freedom).

  • It may be, for example, a refusal of a loan by the buyer's bank, the exercise of the right of pre-emption by the municipality, the discovery of a serious urban planning easement In this case, the sums which had been paid by the purchaser are returned to him.
  • In addition, a sales agreement may also contain a clause, known as a "forfeiture clause", allowing the seller and/or the buyer to give up on the sale without reason, leaving the other party a sum which was agreed upon in advance. But, in practice, this is not common.
  • It should not be confused with the penalty clause, present in most promises to sell, according to which the purchaser undertakes to pay the seller a sum as lump sum damages, if he refuses to sign the sale.

Get your preliminary contract drawn up by a professional
Buyer and seller are free to write it themselves on a sheet of paper or using standard contracts. However, the clauses which appear within are of great importance, the final contract in principle only repeats them, thus, it is recommended to entrust the drafting of these with a professional (a notary or agent, who has the duty to inform both parties). You need to get in touch with the latter to obtain the costs. 

Withdrawal period for buyers

The purchaser of a dwelling who signs a preliminary contract, has a period of ten days (incompressible) to reconsider his commitment (by registered letter with acknowledgment of receipt).
Regardless of the reason, the sums which have been paid are fully refunded. This withdrawal period begins on the day after the hand-delivery of the deed, concluded through the intermediary of a professional having received a mandate to lend his assistance to the sale or the first presentation of the registered letter with notice of receipt, which contains the preliminary contract.
For example, if it is sent on the 10th of the month and its first presentation occurs on the 12th, the period will run from the 13th and will expire on the 22nd at midnight.