Compromis vs promise to sell: the key differences

Choosing between a compromis de vente (preliminary sale agreement) and a promise to sell (promesse de vente) is a crucial step in any property transaction. Yet the difference between a compromis de vente and a promesse de vente remains poorly understood by many buyers and sellers, who sometimes use the terms interchangeably. These two legal instruments have distinct characteristics that can have significant consequences for your rights and obligations. This article guides you through the specific features of each option to help you make the choice best suited to your situation.

The legal foundations of the compromis and the promise to sell

The compromis de vente: an immediate bilateral commitment

The compromis de vente, also called a bilateral promise to sell (promesse synallagmatique de vente), is a genuine contract of sale. Under Article 1589 of the French Civil Code, "a promise to sell amounts to a sale where there is reciprocal consent of both parties on the thing and the price". This provision means that, from the moment the compromis is signed, the sale is legally concluded, even though the notarial deed (acte authentique) has not yet been signed.

The compromis binds the seller and the buyer immediately and reciprocally. The seller undertakes to sell the property on the stated terms, while the buyer is definitively committed to buying it. This bilateral feature fundamentally distinguishes the compromis from the promise to sell. The mechanisms of formation and performance specific to each category are detailed in our article on the differences between bilateral and unilateral promises to sell.

The promise to sell: a conditional unilateral commitment

The promise to sell is a unilateral commitment by the seller to a potential beneficiary. In this framework, only the seller is bound by its commitment: it undertakes not to sell the property to a third party for the duration of the promise. The beneficiary, on the other hand, retains freedom of choice and may decide to exercise the option or to give it up.

This contractual asymmetry gives the promise to sell a particular flexibility, valued especially where the potential buyer still has to complete certain steps before committing definitively.

Conditions of validity and the obligations of each party

Formation and content of the compromis de vente

The compromis de vente must meet the general conditions of validity of contracts: free and informed consent of the parties, legal capacity, a definite subject matter and a lawful cause. More specifically, it must state:

• The precise identification of the property (description, floor area, cadastral references)
• The final sale price and the payment terms
• Any conditions precedent (obtaining a loan, planning permission, etc.)
• The time limits for completing the notarial deed
• The allocation of costs between seller and buyer

Take the example of Sophie and Thomas, who sign a compromis de vente for a house at €350,000. From that signature, Sophie can no longer freely withdraw and sell to another buyer, even if that buyer offered €370,000. Likewise, Thomas can no longer give up the purchase, unless a condition precedent provided for in the compromis is fulfilled.

Specific obligations under the promise to sell

The promise to sell entails distinct obligations depending on the capacity of the parties. The promisor (seller) undertakes to keep its offer open for the agreed period and cannot revoke its promise. The beneficiary generally pays an immobilisation indemnity (indemnité d'immobilisation) that remunerates the tying up of the property.

This indemnity has an important feature: if the beneficiary gives up exercising its option, it permanently loses this sum. Conversely, if it decides to buy the property, the indemnity is set off against the final sale price.

A concrete case: Marc offers Lucie a promise to sell for his flat at €280,000, in return for an immobilisation indemnity of €15,000 and an option period of three months. If Lucie exercises her option, the €15,000 will be deducted from the final price (she will pay €265,000 on completion). If she gives up, Marc keeps the €15,000 and may sell to a third party.

The fundamental difference in terms of commitment

The irrevocability of the compromis de vente

Once signed, the compromis de vente creates definitive obligations for both parties. This irrevocability is its main characteristic and explains why it requires careful consideration before signing.

The only way out is the non-fulfilment of the conditions precedent expressly provided for. The most common concern obtaining financing, the issue of certain administrative authorisations, or the non-discovery of hidden defects during the surveys.

Imagine that Pierre and Marie sign a compromis de vente with a condition precedent of obtaining a loan. If Marie does not obtain her financing within the time allowed, she may withdraw without penalty. On the other hand, if she obtains her loan but changes her mind, she will have to bear the financial consequences of her default.

The flexibility of the promise to sell

The promise to sell offers remarkable flexibility to the beneficiary. The beneficiary has a period for reflection during which it can reach its decision, carry out further checks, or wait for its personal situation to develop.

This flexibility is particularly useful in several situations:

• Awaiting a job transfer
• Completing a prior sale needed to fund the purchase
• Carrying out an in-depth technical survey
• Negotiating with several banks

Take the example of Antoine, a company director, who is considering buying offices for €450,000. A promise to sell allows him to wait for the financial results of his accounting year before committing definitively. If he gives up, his loss is limited to the immobilisation indemnity, unlike a compromis, which would bind him irrevocably.

The financial consequences of each option

Deposit and withdrawal regime in the compromis

The compromis de vente generally provides for the buyer to pay a deposit (arrhes), distinct from the immobilisation indemnity of the promise. This deposit is a payment on account of the price and evidences the buyer's firm commitment. On the timetable for paying this deposit and the risks attached to late payment, see our analysis of the time limit for paying the deposit under the compromis.

However, the parties may agree a right of withdrawal (dédit), a mechanism allowing each of them to withdraw by forfeiting, or returning double, the deposit paid. This right of withdrawal must be expressly stipulated in the compromis, failing which the deposit retains its nature as a payment on account.

A practical case: Julien pays a €20,000 deposit on signing a compromis de vente for a villa at €400,000. If the compromis provides for a right of withdrawal, Julien may give up by forfeiting his €20,000, or the seller may withdraw by returning €40,000 to Julien. Without a withdrawal clause, the €20,000 is a mere payment on account and any unjustified withdrawal exposes the withdrawing party to damages.

Financial impact of the promise to sell

The immobilisation indemnity is the cost of the option granted by the promise to sell. Its amount, freely set by the parties, generally ranges between 5 and 15% of the envisaged sale price. This sum is the financial consideration for the freedom retained by the beneficiary.

Article 1675 of the French Civil Code states that "in the case of a unilateral promise to sell, lesion is assessed on the day of completion". This provision protects the seller against an undervaluation of the property between signature of the promise and exercise of the option.

Specific time limits and procedures

Timetable for performing the compromis de vente

The compromis de vente necessarily sets a time limit for signing the notarial deed, generally between two and four months. This period allows the preliminary formalities to be completed: clearing pre-emption rights, carrying out the mandatory surveys, obtaining financing.

Failure to meet this time limit may give rise to liability on the part of the defaulting party, unless an extension is agreed by mutual consent. The courts analyse the circumstances to determine whether the delay stems from a legitimate cause or from culpable negligence.

To illustrate with the case of Claire and David: their compromis provides for the notarial deed within three months. If David does not obtain his loan within this period through negligence (incomplete file, delay in taking the steps), Claire may seek termination of the compromis and damages. If the delay results from bank slowness beyond his control, David may obtain additional time.

Duration and exercise of the option under a promise to sell

The promise to sell must set an option period, after which it lapses. This period, generally from one to six months, runs from signature of the promise.

Exercising the option requires an express declaration by the beneficiary, by registered letter or by a bailiff's deed (commissaire de justice). This formality turns the promise into a definitive sale and triggers the obligation to sign the notarial deed within the agreed time limits.

Take the example of Françoise, who has the benefit of a promise to sell a plot of land with a four-month option period. If she does not express her intention to buy before it expires, the promise lapses and the promisor is free again to sell to a third party.

Practical advantages and drawbacks

Advantages of the compromis de vente

The compromis de vente has several decisive strengths:

• Maximum legal certainty: since the sale is concluded on signature, neither party can withdraw arbitrarily
• Protection against competition: the seller can no longer negotiate with other potential buyers
• Immediate access to tax schemes: certain tax advantages apply from signature of the compromis
• Simplified dealings with banks: lenders regard the compromis as a firm commitment

This certainty is particularly reassuring for sellers, who can plan their move and their next project with confidence.

Benefits of the promise to sell

The promise to sell offers complementary advantages:

• Flexibility for the buyer: the possibility of giving up by forfeiting the immobilisation indemnity
• Extended period for reflection: additional time to finalise financing or negotiate terms
• Possibility of in-depth investigation: carrying out additional technical or legal studies
• Adaptation to complex situations: job transfers, chain sales, major renovation projects

Example of application: Emma, on a fixed-term contract, is considering buying a flat but is waiting for confirmation of her permanent contract. A promise to sell allows her to secure the property while keeping the possibility of giving up if her professional situation does not stabilise.

Practical advice on making the right choice

Decision criteria according to your situation

The choice between a compromis de vente and a promise to sell depends on several personal and contextual factors:

Opt for a compromis de vente if:

• Your decision to buy is definitively made
• Your financing is already granted or almost certain
• You wish to secure the transaction quickly
• The seller requires a firm commitment

Favour a promise to sell if:

• You need additional time to finalise your project
• Your financial or professional situation remains uncertain
• You must sell an existing property to fund the purchase
• You wish to carry out additional investigations

Essential precautions

Whichever you choose, certain precautions are necessary:

• Check the seller's identity and capacity
• Require a statement of rights of way (servitudes) and charges
• Ask for recent mandatory surveys
• Negotiate conditions precedent suited to your situation
• Have the draft reviewed by a professional before signing

Bear in mind that these instruments engage your financial liability for often considerable amounts. A prior legal check can spare you costly problems later.

Special cases and complex situations

Sale of buildings off plan (VEFA)

In the case of an off-plan sale (vente en l'état futur d'achèvement, VEFA), the regulations impose specific rules. Article R262-15 of the French Construction and Housing Code states that the promise "is subject to the ordinary law rules on the sale of existing buildings" but with adaptations.

The developer must in particular annex to the promise a technical specification detailing the characteristics of the future dwelling. This obligation is intended to enable the beneficiary to know precisely what it is about to acquire.

A concrete case: Paul is interested in an off-plan flat sold for €320,000. The developer offers him a promise to sell with a two-month option period and an immobilisation indemnity of €25,000. Paul can thus study the final plans, the co-ownership regulations (règlement de copropriété) and the finishes at leisure before committing definitively.

Complex transactions and legal structures

Certain acquisitions require sophisticated legal structures: acquisition through a company, dismemberment of ownership, acquisition with the seller remaining in occupation, and so on. In these cases, the promise to sell often offers more flexibility to finalise the technical aspects. Among these hybrid arrangements combining occupation and acquisition, lease-purchase of property is covered separately, with a discussion of the parties' rights and obligations.

Imagine that Philippe wishes to acquire an investment building through his SCI (French property holding company), while keeping the use of the dwelling he currently occupies as a tenant. A promise to sell allows him to negotiate at leisure the terms of the future occupation with the current seller, who will become his tenant.

Summary and recommendations

The difference between a compromis de vente and a promise to sell lies essentially in the level of commitment of the parties. The compromis creates a bilateral and definitive commitment, whereas the promise preserves the beneficiary's freedom of choice in return for a financial consideration.

Key points to remember:

• The compromis de vente amounts to a sale from signature and definitively binds both parties
• The promise to sell binds only the seller and leaves an option to the beneficiary
• The immobilisation indemnity under the promise is lost if the beneficiary gives up, unlike the deposit under the compromis, which may be the subject of a right of withdrawal
• Time limits for performance and conditions precedent vary according to the instrument chosen
• The choice depends on your degree of certainty and your need for flexibility

Given the complexity of these legal mechanisms and the financial importance of what is at stake, it is strongly recommended to consult a lawyer who focuses on real estate law. This professional can analyse your particular situation, advise you on the most appropriate option, and secure the drafting of the instrument to best protect your interests.