Deposit Contract 2025: types, examples, and the mistake that could cost you thousands of euros

Carlos Pérez

22 May 2026
3:34 pm

Quick notice to increase your outcome

If you can only remember one thing from this guide: define in writing the type of deposit before signing. Confusing confirmatory deposits with penitential deposits (or not indicating anything) is the typical slip that ends in litigation… or in losing a lot of money.

Visual index

What is a deposit contract (and what are deposits)
Types of deposits in 2025: confirmatory, penal, and penitential
Essential checklist for signing a housing deposit contract (and apartment deposit) without surprises
Deposit contract between individuals vs with a real estate agency
Real personified example (and the mistake that cost thousands of euros)
Frequently asked questions (FAQ)
Step-by-step mini-guide to securely close your deposits
Words and variants that people search for (so they understand and find you)

What is a deposit contract? (and what are deposits)

The deposit contract is a private reservation agreement by which the buyer and seller commit to formalizing the sale of a property (house, apartment, commercial space) within a specific timeframe and conditions. It is accompanied by a deposit (also called arras) that is deducted from the final price or acts as a penalty if either party breaches, depending on the type of deposit agreed upon.

In short: if you are wondering “what is a deposit contract” or “what are deposits”, think of guarantee + timeline + clear consequences if someone fails. In Spain, the legally regulated figure is the penitential deposit (art. 1454 of the Civil Code); confirmatory and penal deposits are established by doctrine and jurisprudence. (Legal source: art. 1454 CC).

When you see the expression “arras CC” on the internet, it usually refers to the arras of the Civil Code, that is, to the legal framework of article 1454 of the CC. This article is the basis of penitential arras and establishes the famous principle: if the buyer withdraws, they lose the deposit, and if the seller withdraws, they return double.

Types of arras in 2025 (and how they really differ)

1) Confirmatory arras

What they are: a partial payment of the price that confirms the commitment. They do not allow for “breaking” the contract freely.
Effects if there are problems: if one party breaches, the other can demand compliance or terminate the contract with damages compensation, according to art. 1124 CC (that is, there is no “withdrawal” without cause).
When to use them: when both parties have the operation ready (financing and timelines aligned) and want to ensure the closing.
(Technical anchor: classic distinction between confirmatory vs penitential; consolidated doctrinal treatment).

2) Penal arras

What they are: similar to confirmatory ones, but with an explicit penalty clause: if someone breaches, they lose or pay the agreed amount and, additionally, compliance or damages can be demanded.
Effects if there are problems: they reinforce the coercion of the contract. There is no withdrawal “without fault”.
When to use them: when you fear delays/breaches and want more pressure for the promised compliance.
(Conceptual basis and common practice in Spanish civil law).

3) Penitential arras (or withdrawal arras)

What they are: the only arras regulated in the Civil Code: they allow either party to withdraw.
Effects if there are problems: if the buyer withdraws, they lose the arras; if the seller withdraws, they return double.
When to use them: when there are still uncertainties (for example, pending mortgage) and both parties prefer a clear and assessed exit option.
(Basis: art. 1454 CC, express regulation).

Example of penalty deposits: imagine an apartment worth €400,000 and a deposit of €40,000. If the buyer defaults and a penalty clause was agreed upon, they could lose that €40,000 and additionally the seller could claim additional damages if they demonstrate losses (for example, having rejected another offer or incurred cancellation costs). That’s why penalty deposits are “harder” than penitential ones.

Tactical note: if you do not specify what type of deposit they are, a judge could interpret them as confirmatory (not penitential). That small nuance is the expensive mistake that many make.

Quick table: confirmatory vs penalty vs penitential deposits

Type of deposit	Do they allow withdrawal?	If the buyer defaults	If the seller defaults
Confirmatory	No	May lose the deposit and also be liable for damages or performance	May return the deposit and be liable for damages or performance
Penalty	No	Agreed penalty applies + possible additional claim	Agreed penalty applies + possible additional claim
Penitential (art. 1454 CC)	Yes	Loses the deposit	Returns double

This table summarizes the key point: when someone is looking for “confirmatory or penitential deposits”, what they really want to know is if they can withdraw without a lawsuit. The answer is clear: only penitential deposits allow for a agreed and “closed” economic withdrawal.

Essential checklist for signing a housing deposit contract (and apartment deposit)

Use this operational list before signing. It will save you shocks and discussions:

Complete identification
Names, DNI/NIE, addresses, and real ownership of the property. If it is an apartment, request an updated simple note (charges, usufructs, liens).
Explanation: without this, you could reserve a property with legal surprises.
Property description
Address, cadastral reference, area, annexes (parking space, storage room), occupancy status.
Explanation: avoid disputes about “what is included” (renovations, furniture, appliances).
Total price and payment method
Break down price, deposit and balance (transfer, bank check, subrogation).
Explanation: put every number and its deadlines in writing.
Amount of the deposit
In practice, it ranges between 5% and 15% of the price (the 10% is common), but there is no legal percentage. Adjust according to risk/security.
Explanation: more deposit = more commitment (and more risk if you fail).
Type of deposit (in bold and on a line that no one can overlook)
Confirmatory / Penal / Penitential (art. 1454 CC).
Explanation: it is the critical clause that determines if there is a possible withdrawal.
Deadline and date of deed
Day, hour, preferred notary and protocol for extension (with or without penalty).
Explanation: the calendar prevents one party from “freezing” the operation.
Suspensive conditions (mortgage, appraisal, documentation)
If the loan is not granted under minimum conditions X by date Y, what happens.
Explanation: if you don’t include this and sign penitential deposits, you could lose the deposit even if the bank denies the mortgage.
Expenses and supplies
Who pays IBI, community fees, capital gains tax, and from when.
Explanation: clear figures, zero surprises on the signing day.
Legal and technical status
Certificate of energy efficiency, ITE, certificate, community debts.
Explanation: if something is missing, agree on how it will be resolved before the deed.
Signature and annexes
Inventory (if any), proof of deposit transfer, special clauses.
Explanation: attaching evidence avoids “I didn’t receive it,” “I didn’t see it.”

Recommended clauses (text ready to copy)

If you want to protect yourself, these phrases are often included in a well-drafted housing deposit contract. You can use them as a reference:

Type of deposit: “The parties agree that the amount delivered is considered as penitential deposit according to Article 1454 of the Civil Code.”
Delivery free of encumbrances: “The selling party agrees to deliver the property free of encumbrances, liens, tenants, and occupants, except for those expressly accepted by the buying party.”
Suspensive condition of mortgage: “The effectiveness of this contract is conditioned upon the buyer obtaining mortgage financing for a minimum amount of X € before DD/MM/YYYY.”
Automatic extension: “If the signing is delayed for justified reasons, both parties may extend the deadline by X days without penalty.”

Advanced tip (Catalonia): Catalan regulations allow for depositing penitential deposits before a notary and reflecting them in the Registry, with a specific regime for delivery and temporary attachment. Useful if you want maximum security in complex transactions. BOE

Private deposit contract vs with real estate agency

Between individuals:
- Pros: more flexibility, possible savings on commissions.
- Cons: more risk of formal errors (lack of type of deposit, ambiguous deadlines, incomplete clauses).
- How to protect yourself: use a proven model, add suspensive conditions and a minimum professional review.
With a real estate agency or firm:
- Pros: they usually standardize documentation and guide the process.
- Cons: additional cost and generic templates that should be adapted to your case.
- How to protect yourself: ask for an explanation of the type of deposit they propose and adjust any clause to your situation (mortgage, deadlines, encumbrances).

(Practical guides and models: teaching references from OCU and Idealista to clarify fields and structure of a deposit contract). www.ocu.org Idealista st3.idealista.com

The mistake that can cost you thousands of euros (and how to avoid it): Marta’s case

Marta finds the apartment she has been searching for months. She agreed on a deposit of 10% and signed a document that did not specify the type of deposit. Her bank, ultimately, did not grant her the mortgage under the expected conditions. The seller, relying on the document, considered that there was no right to withdraw and withheld the deposit.
What went wrong? By not agreeing on penitential deposits with a suspensive condition of financing, the text was interpreted as confirmatory deposits. Result: Marta lost thousands of euros and months of time.
How it could have been avoided:

Include a very visible line: “Type of deposit: penitential (art. 1454 CC)”.
Add the suspensive condition: “If a mortgage of at least X € at a maximum rate of Y% is not obtained before DD/MM/YYYY, the buyer may withdraw and the seller will fully refund the deposit.”
Set a protocol for extension if the bank offer is delayed.

(This outcome is common if the type of deposit is not defined and/or the financing conditions are not foreseen).

Frequently Asked Questions (FAQ)

Is it mandatory to sign a deposit contract?
No, but highly recommended to reserve the property and clarify price, deadlines and consequences of non-compliance.

What percentage of deposit is “normal”?
It depends on the transaction. In practice, 5%–15% (with 10% being the most common). Remember: more deposit = more commitment and greater risk if you fail.

Can I “back out” without losing money?
Only with penitential deposits (buyer loses them; seller returns double). With confirmatory or penal deposits, there is no free withdrawal: compliance can be requested or resolved with compensation.

What if my mortgage is not granted?
By default, you do not recover the deposit unless you have agreed to it as a suspensive condition or have signed penitential deposits with a clear clause regarding this.

Reliable deposit contract model?
As a basis, review a validated model and adapt it to your case (type of deposit, extensions, financing, charges, inventory).

If you are looking for a 2023 deposit contract model PDF or a downloadable template, use it only as a starting point. What matters is not the format (PDF or Word), but that the document includes the type of deposit, the signing schedule, and the financing conditions, as these are the sections that generate the most conflicts in real transactions.

Step-by-step mini-guide (from reservation to deed)

Gather documentation (simple note, IBI, community, certificate/CEE).
Align financing: pre-offer from the bank and estimated appraisal.
Negotiate the type of deposit:
- Confirmatory? Very mature operation.
- Penitential? Flexibility with exit.
- Penal? Maximum pressure for compliance.
Set amounts and schedule: deposit (e.g., 10%), deed date, and possible extension.
Write suspensive conditions (mortgage, minimum appraisal, removal of charges).
Define expenses and taxes (who pays what and from when).
Sign and deliver deposit with proof.
Meet milestones (appraisal, binding offer), renew extension if applicable.
Sign the deed and offset the deposit in the final price.

Are you buying in the Catalan capital?

To compare opportunities and close qualified visits, take a look at Real Estate in Barcelona.

Words and variants that people search for (useful for being understood)

“contract of earnest money between individuals” (model, common mistakes, what to check)
“earnest money contract for housing” (documentation, deadlines, mortgage)
“confirmatory earnest money vs penitential” (real differences)
“penalty earnest money example”
“percentage of earnest money 2025”, “earnest money contract deadline”, “financing clause”, “return of double the deposit”, “earnest money model for apartment”, “purchase deposit”, “housing reservation”.

Penitential or confirmatory earnest money: the decision that changes everything

If you are unsure between penitential or confirmatory earnest money, the practical rule is simple: if there is any uncertainty (mortgage, previous sale, pending inheritance, charges to cancel), it is usually prudent to agree on penitential earnest money with clear conditions. On the other hand, if everything is settled and both parties want to ensure compliance no matter what, confirmatory earnest money may be more appropriate.

Actionable conclusion

Decide the type of earnest money based on your situation: security (confirmatory/penalty) vs flexibility (penitential).
Write down in black and white the condition of financing if you depend on the bank.
Schedule realistic dates and anticipate extensions (with or without penalties).
Use a proven model and customize it (do not sign templates without adapting them).
A quick review of 10 minutes of this checklist before signing can save you thousands of euros.

Key sources consulted

Civil Code, art. 1454 (penitential deposits): text and consolidated extracts. Legal News+1
Pérez-Llorca (doctrinal analysis of confirmatory, penal, penitential deposits and effects of non-compliance). Pérez-Llorca, Law Firm
BBVA (informative guide, percentage practices, mortgage and terms). BBVA
OCU (model contract for penitential deposits). www.ocu.org
Analysis and recent jurisprudence on types of deposits. Simarro & García Lawyers BOE