What is the Contrato de Arras?
The Contrato de Arras is the private purchase agreement you sign with the seller once you have reached agreement — before the notary. You pay a deposit (the arras), the property comes off the market, and the price, the conditions and the deadline for the notarial deed are all set out.
It is therefore not a non-binding reservation, but a binding contract. That is precisely why it pays to understand what you are signing — and which type of arras it contains.
The three types of arras
Spanish law recognises three types of arras. They look similar, but the difference determines what happens if one of the parties pulls out. Which type applies depends on what the contract literally states.
| Type | Can you withdraw? | Consequence |
|---|---|---|
| Arras penitenciales | Yes, either party | Buyer pulls out → loses the deposit. Seller pulls out → repays double. |
| Arras confirmatorias | No, it is a firm commitment | Withdrawing is breach of contract; the other party can demand performance or damages. The deposit counts towards the price. |
| Arras penales | In principle no | The deposit acts as a penalty for breach of contract; the injured party can keep the penalty or still demand performance. |
What does the contract contain?
A good Contrato de Arras leaves nothing to chance. These points should be set out clearly:
- the details of buyer and seller
- the exact description and cadastral reference of the property
- the sale price and the amount of the deposit
- the type of arras (penitenciales, confirmatorias or penales)
- the deadline for signing at the notary
- any conditions precedent (e.g. financing)
- what happens if either party pulls out
How much do you pay?
The deposit is usually around 10% of the purchase price. You pay it on signing the contract; the amount later counts towards the total price at the notary.
Always pay into the correct account and keep the proof of payment. If in doubt, ask your lawyer to confirm the payment details before you transfer.
What if you withdraw?
With arras penitenciales you lose the deposit as a buyer if you withdraw; if the seller withdraws, you receive double. With the other types the consequences are different. Know the rules of your own contract before you sign.
Reservation, arras or title deed?
Reservation, Contrato de Arras and the notarial deed follow one another. They are often confused — this is the difference:
- 1Reservation
A small sum (sometimes a few thousand euros) to take the property off the market for a while, while the contract is prepared. Not always needed.
- 2Contrato de Arras
The binding contract with the deposit (± 10%). Price, conditions and the notary deadline are set.
- 3Escritura (notary)
The official deed of sale. You pay the balance, sign at the notary and become the owner. The deposit from the arras counts towards the price.
Pitfalls with the Contrato de Arras
Have the contract reviewed by your independent lawyer before you sign or pay. Once signed, the terms apply.
Not knowing which type of arras you are signing. It determines whether and how you can pull out without major consequences — ask explicitly.
The deadline for the notary is binding. Make sure your financing and documents are ready in time.
If you need a mortgage, have a condition precedent included so you are not stuck if the financing falls through.
Before you sign
- Have the contract reviewed by an independent lawyer before you sign.
- Check which type of arras you are signing and what pulling out means.
- Make sure the price, deposit and payment details are stated correctly.
- Have the notary deadline and any conditions clearly set out.
- Keep the signed contract and the proof of payment of the deposit.
Why Sophie had the type checked
Sophie wanted to reserve an apartment in Calpe and was presented with a Contrato de Arras. It looked fine, but the type was not clearly stated.
Her lawyer checked it: there was no explicit reference to arras penitenciales, which meant the contract could be interpreted as confirmatorias — with far less room to pull out.
One amendment and a condition precedent for her mortgage later, Sophie signed with complete peace of mind. What seemed like a detail turned out to make all the difference.
Frequently asked questions about the Contrato de Arras
Is a Contrato de Arras compulsory?
Not legally required, but very common in practice. It sets the agreement in writing between reaching agreement on the price and signing at the notary, and gives both parties certainty.
What is the difference between the three types of arras?
With penitenciales either party can withdraw (the buyer loses the deposit, the seller repays double). With confirmatorias it is a firm commitment and the deposit counts towards the price. With penales the deposit acts as a penalty for breach of contract. Have your lawyer confirm which type your contract contains.
How much do I pay with the Contrato de Arras?
Usually around 10% of the purchase price. That amount later counts towards the total price at the notary.
Can I withdraw after signing?
That depends on the type of arras. With penitenciales you can, but as a buyer you lose the deposit. With the other types the other party can demand performance or damages. Know your contract before you sign.
What happens if the seller withdraws?
With arras penitenciales the seller must in principle repay you double the deposit. With the other types you can demand performance or damages. Your lawyer explains the concrete consequences.
Does the deposit count towards the purchase price?
Yes. The deposit is an advance on the price and is deducted from the balance at the notary.
What if I need a mortgage?
Then have a condition precedent included that makes the contract dependent on your financing. That way you are not stuck if the mortgage unexpectedly falls through. Discuss this with your lawyer in advance.
This information is general in nature and does not replace legal advice. Always have your Contrato de Arras reviewed by an independent lawyer before you sign.
