Buying a property is often the largest investment of a lifetime. The choice between a unilateral promise to sell and a compromis de vente (preliminary sale agreement) is a crucial decision which determines your rights and obligations throughout the period before final signature at the notary's office. Understanding the differences between these two types of preliminary contract will allow you to secure your property transaction as well as possible, whether you are the seller or the buyer.
Promise to sell or compromis de vente: the legal foundations explained
The promise to sell: a unilateral commitment advantageous to the buyer
The promise to sell (promesse de vente), also called a unilateral promise to sell, is a contract by which the seller irrevocably undertakes to sell the property to a potential buyer. The buyer has an option to purchase for a fixed period, generally between two and four months.
Practical example: Mr Dupont wishes to sell his house for €350,000. He signs a promise to sell with Ms Martin, who pays an immobilisation indemnity (indemnité d'immobilisation) of €17,500 (5%). Ms Martin has 3 months to decide whether or not to buy, without any obligation.
The unilateral nature of this commitment means that only the seller is legally bound. The beneficiary buyer retains freedom of choice until the option period expires. This contractual asymmetry gives the promise to sell particular characteristics as regards the formation of the sale contract.
In return for this option, the buyer pays an immobilisation indemnity, separate from the sale price. This sum, generally between 5% and 10% of the price, pays for the seller's commitment and for his or her temporary agreement not to market the property to other potential buyers.
The compromis de vente: a reciprocal and reassuring commitment
The compromis de vente, or bilateral promise to sell (promesse synallagmatique de vente), definitively binds seller and buyer from signature. Unlike the promise, both parties commit reciprocally: the seller to sell and the buyer to buy on the agreed terms.
Practical example: Ms Leclerc and Mr Rousseau sign a compromis de vente for a flat at €280,000. Mr Rousseau pays a deposit (dépôt de garantie) of €28,000 (10%). From this signature, the sale is legally formed, subject to the conditions precedent (conditions suspensives).
This bilateral nature implies the immediate formation of the sale contract, subject to the fulfilment of any conditions precedent. The compromis is therefore a definitive sale whose completion is merely deferred in time to allow the administrative and financial formalities to be completed. The mechanism of formation and performance specific to each of these promises is analysed in our article on the differences between a bilateral promise and a unilateral promise.
The buyer pays a deposit, generally equivalent to 5% or 10% of the sale price. This sum is a down payment on the price and will be deducted on final payment at the notary's office.
Rights and obligations: promise to sell or compromis de vente, which to choose?
Under a promise to sell
The promisor seller assumes strict obligations throughout the option period. The seller must maintain the commitment to sell on the terms defined and refrain from any act likely to jeopardise completion of the sale. Breach of these obligations exposes the seller to civil sanctions, in particular forced performance of the sale or damages.
Practical case: If the seller attempts to resell to a third party during the option period, the buyer may demand cancellation of that second sale and obtain damages that may reach 10% to 20% of the sale price.
The beneficiary buyer enjoys a privileged position. The buyer may freely give up the option without justification or penalty, simply losing the immobilisation indemnity paid. This right to give up the option is the main advantage of the promise for the buyer, who retains complete freedom of decision.
Under a compromis de vente
The reciprocal obligations of the compromis, or bilateral promise to sell, create a different contractual balance. The seller is definitively committed to sell and can no longer withdraw without exposure to sanctions. Symmetrically, the buyer is irrevocably bound to buy and risks losing the deposit in the event of unjustified withdrawal.
This reciprocity of commitments offers enhanced legal certainty to both parties. The seller obtains certainty of the sale, while the buyer secures the acquisition against any attempt by the seller to withdraw.
Comparative table: compromis de vente or promise to sell
| Criteria | Promise to sell | Compromis de vente |
|---|---|---|
| Seller's commitment | Definitive and irrevocable | Definitive and irrevocable |
| Buyer's commitment | None (simple option) | Definitive and irrevocable |
| Sum paid | Immobilisation indemnity (5-10%) | Deposit (5-10%) |
| Buyer's freedom | Total during the option period | Limited (conditions precedent) |
| Seller's security | Low (buyer may give up) | High (reciprocal commitment) |
| Usual duration | 2 to 4 months | 2 to 3 months |
| Cost of buyer's withdrawal | Loss of the indemnity | Loss of the deposit |
| Sanction for seller's withdrawal | Damages + forced performance | Double the deposit |
Conditions precedent in preliminary property contracts
Whether it is a promise to sell or a compromis de vente, including conditions precedent is a common and recommended practice. These clauses protect the buyer against risks linked to financing, obtaining permits or the discovery of latent defects. The clauses and conditions precedent specific to a preliminary contract concerning a commercial lease right (droit au bail) are examined in our article on buying or selling a leasehold right.
The financing condition precedent: essential protection
Mandatory where the buyer uses a property loan, this condition allows the contract to be cancelled if the loans are not obtained within the agreed time limits. The Scrivener law strictly regulates this protection by imposing mandatory statements concerning the characteristics of the loans applied for.
Worked example: For a purchase of €400,000 with a down payment of €80,000, the condition must specify the search for a loan of €320,000 over 25 years at a maximum rate of 4.5%.
Other common conditions precedent
- Obtaining planning permission for construction or development
- Satisfactory result of additional technical surveys
- Pre-emption by a public body or a tenant
- Clearing of the urban pre-emption right
- Obtaining specific administrative authorisations
The fulfilment or failure of these conditions determines the final fate of the contract, whether it is a promise to sell or a compromis de vente.
Consequences of withdrawal: promise to sell or compromis de vente
Withdrawal under a promise to sell
The beneficiary buyer may give up the option with no consequence other than the loss of the immobilisation indemnity. This right to give up, provided for by the contract, is not legally a withdrawal but the normal exercise of the option right.
Example: On a property of €300,000, a buyer who has paid an indemnity of €15,000 may give up and lose only that sum, that is 5% of the price.
By contrast, if the seller withdraws during the option period, the seller commits a breach of contract which engages liability. The buyer may then demand forced performance of the sale or claim damages compensating the loss suffered.
Withdrawal under a compromis de vente
The consequences of withdrawal are heavier under a compromis. A buyer who withdraws without legitimate cause generally loses the deposit, which is kept by the seller as a penalty clause. This sanction may be moderated by the judge if it appears manifestly excessive. The costs and contractual sanctions incurred by a buyer who withdraws are detailed in our article on cancellation of the compromis de vente by the buyer.
A seller who withdraws is liable to return double the deposit received, under the penalty clause traditionally inserted in compromis. This "double the deposit" rule penalises the seller's wrongful breach of the contract.
Practical case: If the buyer has paid a deposit of €25,000 and the seller withdraws, the seller will have to return €50,000.
The statutory cooling-off period: a common protection
Since the SRU law, non-professional buyers have a cooling-off period of ten days from notification of the preliminary contract. This statutory protection applies equally to promises to sell and to compromis de vente.
The withdrawal must be notified by registered letter with acknowledgement of receipt within the time allowed. Exercise of this right entails full repayment of the sums paid, without penalty for the buyer.
This right of withdrawal is an additional safeguard, particularly valuable in the context of a compromis where the commitment is initially definitive.
Practical strategies: choosing between a promise to sell and a compromis de vente
When to prefer the promise to sell
The promise to sell is appropriate where the buyer wishes to retain maximum flexibility. This option is particularly suited to situations where uncertainties remain as to financing, administrative authorisations or the development of the property project.
Examples of favourable situations:
- Purchase of land requiring a planning permission that is uncertain
- Rental investment subject to market fluctuations
- Acquisition requiring the prior sale of another property
Experienced investors frequently use the promise to sell to secure opportunities while keeping the possibility of renegotiating or giving up depending on how the market develops.
When to opt for the compromis de vente
The compromis, or bilateral promise to sell, is called for when the parties want a firm and reciprocal commitment. This formula is particularly reassuring for sellers, who obtain certainty of the transaction.
Recommended situations:
- Tight property market with strong competition
- Seller requiring maximum security
- Buyer certain of the project and of the financing
- Need to lock in an attractive price quickly
For the buyer, the compromis has the advantage of definitively locking in the price and the terms of sale, protecting the buyer against any attempt by the seller to withdraw or against a higher bid from a third party.
Essential clauses in preliminary property contracts
Precise description of the property
Whether it is a promise to sell or a compromis de vente, the detailed description of the property is a fundamental element. The description must state the exact area, the fittings included, the general condition and any particular feature likely to affect the value.
Price and payment terms
Fixing the price and its terms of payment requires particular attention. Indexation clauses, financing terms and payment guarantees must be precisely defined to avoid any later dispute.
Example of a clause: "Sale price: €380,000 payable in cash on the day of signature of the authentic deed, less the deposit of €38,000 already paid."
Apportionment of costs and charges
The apportionment of notary's fees, mandatory diagnostics and current charges must be clearly established. This apportionment may be negotiated depending on the market situation and the balance of power between the parties.
Signature and formalities: promise to sell or compromis de vente
Signature formalities
A promise to sell or a compromis de vente may be signed under private seal between the parties (sous seing privé) or by authentic deed before a notary. The authentic form, although more expensive (around €400 to €600), offers enhanced legal certainty and facilitates later formalities.
Registration and publicity
Certain preliminary contracts must be registered for tax purposes and recorded at the land registry, in particular where their term exceeds eighteen months. These formalities, generally completed by the notary, protect the contracting parties' rights against third parties.
Recent developments in case law
Recent case law has clarified certain aspects of the regime for preliminary property contracts. The courts are notably stricter as regards pre-contractual information and the validity of conditions precedent.
The development of consumer law also influences this area, reinforcing the protection of non-professional buyers through increased information obligations and stronger sanctions in the event of breach.
The choice between a promise to sell and a compromis de vente depends essentially on the strategy adopted by each party and on the level of certainty desired. The promise favours the buyer's flexibility at the expense of the seller's security, whereas the compromis, or bilateral promise to sell, establishes a balance of reciprocal commitments. In all cases, these preliminary contracts are crucial stages requiring careful thought and, ideally, the support of a property law professional to secure each party's interests as well as possible.
Quatre questions suffisent à situer votre position, le délai qui vous reste et ce qu'il faut vérifier en priorité. Vous décidez ensuite si vous en parlez au cabinet.
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