Are you wondering whether signing a promise to sell or a preliminary sales agreement actually changes your rights and obligations when buying or selling real estate? Should you favor a unilateral promise or a synallagmatic agreement depending on whether you are a seller in a hurry, a buyer needing a loan, or a rental investor? In this article, we compare in detail the promise to sell and the preliminary sales agreement to help you choose the right pre-contract for your project. We define the unilateral promise, the preliminary sales agreement, suspensive clauses, and obligations such as the DPE. You will also find a checklist, practical numerical cases, and tips to secure the transaction. Contact a Capifrance advisor near you to secure your real estate buying or selling project with personalized support.
Summary: promise to sell vs preliminary sales agreement
Unilateral promise: the seller commits and grants an option to the buyer; typical immobilization indemnity 5–10%. Preliminary sales agreement: mutual commitment of both parties; the pre-contract is equivalent to a sale subject to suspensive conditions. The buyer benefits from a 10-day withdrawal period; the loan suspensive clause provides protection in case of financing refusal. To secure the transaction (registration, diagnostics, mortgage status, escrow account), use a notary or a local real estate advisor. Download our pre-contract checklist (PDF) to review documents and clauses before signing.
Definitions: what is a promise to sell
The promise to sell is a pre-contract by which the seller, called the promisor, commits to selling their property at a fixed price. The buyer receives a purchase option for a limited period. In practice, the option duration often varies between one and three months. During the option period, the property is “immobilized.” The seller cannot offer it to a third party. In return, the buyer pays an immobilization indemnity which is then deducted from the price if the option is exercised. The promise protects the seller while giving the buyer time to arrange financing. If the option is not exercised without legitimate reasons, the indemnity remains with the seller.
Promise to sell: concept and operation
The promise works like a purchase option. The buyer has a period to decide whether to buy and formalizes the exercise of the option to make the sale final. During the option period, the buyer can seek a mortgage and organize financing.
Immobilization indemnity and deposit
A distinction is made between the immobilization indemnity and a deposit. The indemnity is specific to the unilateral promise. Its usual amount is 5–10%. If the buyer withdraws outside the allowed period or without a suspensive condition, they lose this sum.
Formalities and registration of the promise
The promise must be recorded by an authentic deed or a private agreement registered within 10 days. Registration makes it enforceable against third parties and avoids certain nullities. The notary assists with drafting and legal security.
Definitions: what is a preliminary sales agreement
The preliminary sales agreement is a synallagmatic promise by which both seller and buyer mutually commit to concluding the sale. Legally, the agreement is equivalent to a sale subject to the suspensive conditions included in the pre-contract. The agreement is often accompanied by a security deposit paid to the notary and held in an escrow account. This deposit generally represents 5–10% of the price.
Preliminary sales agreement: legal scope and mutual commitment
The agreement firmly binds both parties. In case of unjustified refusal by one party, the other may request forced execution of the sale or damages. Suspensive conditions determine cases of cancellation without penalty.
Security deposit and penalty clause
The deposit is deducted from the price upon final signing. If a suspensive condition is not fulfilled, the deposit is returned. However, if the buyer withdraws without reason, the seller may retain the deposit and invoke a contractual penalty clause, often around 10% of the price.
Drafting and place of signing: notary or real estate agent
The agreement can be drafted by a real estate agent (private agreement) or by a notary. The notary secures checks (mortgages, civil status, preemption rights). For complex cases, always prefer notarial validation.
Commitments and rights of the parties: seller and buyer
Before signing, the seller must inform the buyer and attach mandatory documents. These form the technical diagnostics file. The buyer benefits from a withdrawal right and protections through suspensive clauses. Proper drafting protects both parties. It reduces litigation risks and facilitates obtaining a mortgage for the buyer.
Seller obligations: diagnostics and documents
The seller must provide the technical diagnostics file: DPE, lead, asbestos, termites, risk and pollution report (ERP), sanitation, electricity/gas if required. For a condominium lot, the dated statement, regulations, and minutes of general meetings from the past 3 years must be included.
Buyer rights and duties: withdrawal and loan
The buyer has a 10-day withdrawal period starting the day after the first presentation of the pre-contract. The loan suspensive clause must specify the borrowed amount, maximum interest rate, loan duration, and deadline, often 2 months. If refused, the pre-contract is canceled and the deposit returned.
Consequences in case of termination
If the buyer withdraws without reason after the withdrawal period and outside a suspensive condition, they risk losing the deposit and facing legal action. If the seller withdraws, the buyer may request forced execution or damages.
Role of the purchase offer and the authentic deed in the process
The typical process is: purchase offer → acceptance → pre-contract (promise or agreement) → withdrawal period and suspensive conditions → authentic deed before a notary. Each step has legal significance and a practical role. The written purchase offer facilitates proof. The authentic deed finalizes the sale and transfers ownership.
From purchase offer to pre-contract
The purchase offer may be withdrawn according to its terms. Once accepted, it leads to the pre-contract. Always formalize in writing to secure proof of agreement.
From promise or agreement to authentic deed: role of the notary
The notary verifies mortgage status, easements, existence of preemption rights, and attached documents. The average period between pre-contract and final deed is about 3 months.
Usual timelines between pre-contract and final deed
Generally allow between 2 and 4 months. This includes loan approval and notarial checks. A local real estate advisor helps coordinate banks, diagnosticians, and the notary.
Suspensive conditions, documents and diagnostics to plan
Suspensive conditions protect the buyer and sometimes the seller. They include loan approval, absence of preemption, obtaining permits, or discovery of easements. Draft them precisely.
Loan suspensive clause
Indicate borrowed amount, maximum rate, maximum duration, and deadline (usually 60 days). Keep proof of banking steps. If refused within the deadline, the pre-contract becomes void and the deposit is returned.
Diagnostics and documentary obligations
In addition to the DPE, the 2025 energy audit concerns properties rated E. If a pre-contract was signed before 01/01/2025, it may exempt from the audit unless otherwise stated. Avoid general clauses imposing “any new diagnostic.” For condominiums, include required documents.
Preemption rights, easements and mortgage status
The notary verifies absence of preemption exercise and mortgage status. Any undeclared easement may delay or alter the sale. These must appear in attached documents.
Practical terms: deposit, registration, remote signing, power of attorney
Funds are generally paid to the notary and held in escrow. The usual deposit is 5–10%. In case of withdrawal within 10 days, refund often occurs within 21 days.
Deposit amount and payment
Pay the deposit by bank transfer to the notary for security. Between private parties, collecting funds before signing is regulated and may be penalized. Seek advice from a local advisor.
Registration and validity: promise vs agreement
The unilateral promise must be registered, while the agreement has no such obligation. Registration improves enforceability against third parties.
Electronic signature, power of attorney and remote sale
Electronic signature is legally recognized for preparatory acts. Power of attorney allows representation during signing. Check validity with the notary and comply with GDPR.
Special cases to anticipate
Certain cases require extra precautions: inheritance, multiple heirs, companies, life annuity, off-plan sales, commercial premises or rental investment modify timelines and documents.
Promise or agreement in case of inheritance
Inheritance sales require verification of death certificates, heir status, and sometimes unanimity. The notary handles powers of attorney and estate settlement. Plan additional time.
Condominium specifics
Provide required documents. Missing documents delay the start of the withdrawal period.
New property, life annuity, commercial premises, companies
Each has specific legal frameworks and clauses. Anticipate tax and drafting requirements.
Legal and regulatory developments 2024–2026
Recent developments impact pre-contracts. The 2025 energy audit for E-rated properties and case law increase requirements for information and clause precision.
Energy audit and DPE
A promise signed before 01/01/2025 may exempt the audit for E-rated property, unless a clause states otherwise. Ask the notary to adapt drafting.
Case law developments and best practices
Recent rulings strictly review suspensive clauses. Keep all proof. Have the pre-contract drafted or checked by a professional.
Practical example
Case 1: buyer with loan — price €300,000, deposit 5%. If loan refused with valid clause, contract canceled and funds returned. If promise option not exercised without reason, indemnity kept by seller. Case 2: seller in inheritance — buyer withdraws after 10 days without condition, seller may keep deposit. Choice depends on strategy.
Best practices and checklist
Verify identity, ownership title, diagnostics, mortgage status, and easements before signing.
10 essential checks
Identity and capacity; ownership title; diagnostics; surface areas; condominium documents; loan clause; preemption rights; deposit terms; penalty clauses; financing proof.
Our advice: secure your project with a local advisor
A Capifrance advisor provides local expertise, reliable valuation, proper drafting of the pre-contract and coordination between stakeholders. They help you choose between promise and agreement based on your situation. Contact a Capifrance advisor near you for personalized support and a free valuation.
Conclusion: choosing between promise and agreement
The unilateral promise suits sellers wanting flexibility and buyers needing time. The agreement suits both parties seeking firm commitment. Ensure diagnostics and documents are complete. Draft a precise loan clause and keep proof. Use escrow accounts and respect deadlines. In special cases, consult a notary.
FAQ
What is the main difference between a promise and an agreement? The promise binds only the seller and grants an option; the agreement binds both parties. Can the buyer withdraw after 10 days? No, except under suspensive conditions. What happens if a loan is refused? The contract is canceled and funds returned. Can the seller cancel? They may face forced execution or damages. Does a 2024 promise avoid the 2025 audit? Possibly, unless a clause requires it. Can you withdraw after a promise? Yes within 10 days, then only via suspensive condition. What is the timeline? Usually 2–3 months to final deed. What is the benefit? Flexibility for the buyer. What are the risks? Loss of indemnity or immobilization of the property. Which to choose? Depends on the project. What is a preliminary agreement? A binding pre-contract equivalent to a sale. When to sign? After offer acceptance. What is the difference? Promise binds seller only, agreement binds both. What is a promise? A contract granting a purchase option. How much does it cost? Often free via agent, €150–€500 via notary. What role does the notary play? Secures the legal process and prepares the final deed.
Author :
Frédéric Rémy – Director of Commercial Performance
A real estate professional for several years within the Capifrance network, I would like to share with you some essential advice to help you succeed in your real estate project with the support of our advisors.
