SOBE Knowledge
The Arras Contract — Spain’s 10% Moment
The private contract that locks the deal months before the notary: a 10% deposit, a completion deadline, and exit rules that depend entirely on three words most buyers never read.
What the arras is
The contrato de arras is the private purchase contract signed between offer and completion: the buyer pays a deposit — customarily 10% — and both sides commit to complete by a fixed date.
It usually follows a small reservation agreement and precedes the escritura at the notary by one to three months — the window in which financing closes, due diligence concludes and funds travel. It is a private document with public consequences: from signature, the deal has teeth.
Three kinds of arras — and why the words matter
Spanish law knows three species, and the difference decides what walking away costs:
| Type | If the buyer exits | If the seller exits |
|---|---|---|
| Penitenciales (Art. 1454 CC) | Loses the deposit | Returns it doubled |
| Confirmatorias | No priced exit — the other side can demand completion or full damages | |
| Penales | Penalty applies and completion can still be demanded | |
Only arras penitenciales give both sides a clean, priced exit — and the courts default to confirmatorias when the contract is silent or vague. The single most important line in the document is the one naming Article 1454 expressly.
What the deposit really buys
For the buyer, the arras freezes price and property while mortgage, surveys and legal checks catch up. For the seller, it filters tourists from purchasers — nobody wires 10% casually. The double-return rule is the quiet enforcer: a seller tempted by a higher offer in a rising market must hand back twice the deposit to take it, which prices the temptation precisely.
The date is the second enforcer. Completion deadlines in arras are treated seriously; a buyer whose financing is not ready when the term expires is, legally, a buyer who walked. The deadline should be set by the slowest realistic element — usually the mortgage or the NIE — not by optimism.
Before any deposit moves
Due diligence, sequenced
Nota simple, licences, debts, valor de referencia, community accounts — verified before the arras fixes your position, not after.
Clauses worth their ink
A well-drafted arras on this coast typically carries: an express Article 1454 designation; a financing condition returning the deposit if the mortgage is refused on documented terms; deposit held by a neutral third party (lawyer or notary escrow) rather than wired to the seller personally; a completion date with margin; and an inventory annex where furniture travels with the sale. None of these is exotic; all of them have decided disputes.
Four ways the 10% goes wrong
1. The unnamed type. Silence means confirmatorias, and confirmatorias mean court, not a priced exit. Name Article 1454.
2. Signing before diligence. The arras fixes your position; discoveries after it cost the deposit to act on. Sequence: checks first, signature second.
3. The optimistic deadline. Non-resident financing takes longer than anyone plans. A short term converts delay into default.
4. Deposit to the seller’s pocket. Recovering money from an account abroad is a lawsuit, not a request. Escrow costs nothing and prevents it.
Frequently asked questions
Is the arras deposit always 10%?
Ten percent is the custom, not the law - the parties can agree any figure. Lower deposits weaken the double-return deterrent; higher ones raise the buyer's exposure. Ten remains the coast's equilibrium.
Can I get the deposit back if my mortgage is refused?
Only if the contract says so. A financing condition returning the deposit on documented refusal is standard practice for non-resident buyers - and absent from many seller-drafted templates.
What happens if the seller receives a better offer?
Under arras penitenciales, the seller can exit by returning double the deposit. Under confirmatorias, you can demand completion itself. This is why the type named in the contract matters more than any other clause.
Is the arras legally binding without a notary?
Yes - it is a private contract, fully enforceable between the parties. The notary enters at completion, when the escritura is signed and title passes.
What if completion is delayed past the deadline?
Whoever caused the delay bears the consequences: a buyer loses the deposit, a seller returns it doubled (under penitenciales). Extensions are possible - in writing, signed by both sides, before the date passes.