Quick answer: The contrato de arras is the private deposit contract that locks a Spanish property sale before the notary deed. Convention puts the deposit at 10% of the price. Under arras penitenciales, the type governed by article 1454 of the Civil Code, a buyer who withdraws loses the deposit and a seller who withdraws returns double. A contract silent on the type is read by the courts as arras confirmatorias, which lets the other side sue for completion, so the two words a foreign buyer must see in the text are “arras penitenciales”.
What is a contrato de arras and is it legally binding?
A contrato de arras is a binding private contract in which the buyer pays a deposit, typically 10% of the agreed price, the sale terms are fixed, and the cost of withdrawing is set for both sides before anyone signs at the notary. Spanish practice completes the deed 30 to 90 days later.
| Element | What the arras fixes | Why it matters |
|---|---|---|
| Price and property | Final price, registry description, what is included | No renegotiation at the notary |
| Deposit | Amount, who holds it, how it is applied at completion | The stake each side has on the table |
| Withdrawal cost | Deposit lost, doubled, or performance enforceable | Depends entirely on the arras type |
| Completion window | Long-stop date for the escritura | Delay becomes breach with a date attached |
| Conditions | Financing, licence, charge cancellation | The buyer’s lawful exits, only if written |
Binding is the operative word, and it binds from the moment of signature, not from the notary appointment. A signed arras with a fixed price survives a better offer arriving the next week: the seller who takes it must hand back double the deposit under penitenciales rules, and a buyer whose enthusiasm cools pays for the change of heart with the full deposit.
Foreign buyers tend to meet the arras at the worst possible moment, days after falling for a property, with the agent presenting a 2-page standard form as a formality. Treating those 2 pages as the real contract of the purchase, because that is what they are, is the single most protective habit this guide can teach, and reading them against the checklist at the end of this page takes under an hour. The step-by-step buying guide shows where the arras sits in the full sequence.
What are the three types of arras, and which default applies?
Spanish law recognises three types of arras, each with different withdrawal consequences, and the default is the trap: a contract that does not name its type is read by the courts as arras confirmatorias, the kind that lets the other side sue for completion of the sale rather than settle for the deposit.
| Type | Civil Code basis | If the buyer withdraws | If the seller withdraws |
|---|---|---|---|
| Penitenciales | Article 1454 | Deposit forfeited, walk away | Returns double the deposit, buyer walks |
| Confirmatorias | Article 1124 regime | Seller may sue for completion or damages | Buyer may sue for completion or damages |
| Penales | Articles 1152 to 1155 | Agreed penalty enforced, completion may still be demanded | Agreed penalty enforced, completion may still be demanded |
Penitenciales is the type nearly every foreign buyer wants, because it converts withdrawal into a priced option rather than a lawsuit: the maximum downside is known on day one. Confirmatorias suits a seller facing a hesitant buyer, and penales exists for negotiated penalty structures, common in commercial deals and rare in residential ones.
Case study from our files: a Dutch buyer signed a €42,000 arras on a €420,000 Jávea villa in 2025 on an agency form that never named the type of arras. A family illness forced withdrawal 5 weeks later, and what the buyer expected to be a painful but clean €42,000 loss turned into 14 months of litigation exposure, because the seller’s lawyer read the silent contract as confirmatorias and demanded completion of the full purchase under article 1124. The matter eventually settled at a cost well above the deposit, plus legal fees on both sides and a Spanish court filing the buyer had to answer from abroad. Two words in the contract, arras penitenciales, would have priced the exit at €42,000 flat and closed the file in a week. Every euro of that difference was decided at signature, in a document reviewed for 15 minutes.
Red flag: a contract titled “contrato de arras” with no mention of penitenciales, article 1454, or the double-return rule in the body. The title of the document decides nothing; Spanish courts construe the withdrawal rights from the wording, and silence defaults against the party who needs flexibility, which in a cross-border purchase is almost always the buyer.
How much deposit do you pay, and who holds it?
Spanish law sets no arras amount: the market band runs 5% to 15% of the price, the convention on resale purchases is 10%, and the number is a negotiation lever, because the deposit is simultaneously the buyer’s maximum loss and the seller’s compensation for taking the property off the market for 30 to 90 days.
- 5% arras suits a buyer with open conditions: a cheaper exit if verification fails, and sellers accept it in slower micro-markets or against a fast completion date.
- 10% arras is the convention that most offers assume; on a €300,000 purchase, €30,000 changes hands at signature.
- 15% arras appears when a seller grants a long completion window or the buyer needs to outbid competition without moving the headline price.
Custody of the money deserves more attention than it usually gets. Paying the seller directly is common and legal, and it quietly converts the double-return rule into an unsecured claim: a withdrawing seller owes €60,000 on a €30,000 arras, and collecting depends on their solvency and a Spanish judgment. A lawyer’s client account or true escrow holds the same money neutrally until completion.
Insider tip: align the arras with the tax reality of your region before you pick the number. A Valencian buyer paying 9% ITP under €1 million needs roughly 19% of the price in cash at the arras-plus-completion stage on a 10% deposit; the same buyer in Andalucía at 7% ITP needs about 17%. Setting the arras at 5% because the cash plan is tight is a legitimate negotiation, and it is far cheaper than discovering the squeeze after signing. The full cash stack is in the cost of buying guide.
What does withdrawing cost at each deposit level?
Withdrawal costs are fully known in advance only under arras penitenciales, which is the entire point of naming the type: on a €300,000 purchase with a 10% arras, a buyer who walks loses €30,000, and a seller who walks returns €60,000, double the deposit, under article 1454.
| Purchase price | Arras at 10% | Buyer withdraws: loses | Seller withdraws: must return |
|---|---|---|---|
| €200,000 | €20,000 | €20,000 | €40,000 |
| €300,000 | €30,000 | €30,000 | €60,000 |
| €400,000 | €40,000 | €40,000 | €80,000 |
| €750,000 | €75,000 | €75,000 | €150,000 |
Asymmetries hide inside those clean numbers, and pricing them is what separates a negotiated arras from a signed form. A rising market tempts sellers to walk: on a property now worth €30,000 more than the agreed price, returning double a €15,000 arras, which is what a 5% deposit produces on €300,000, costs the seller exactly €30,000 and leaves them no worse off, so a low deposit in a hot micro-market is an invitation to be outbid after signature. Spanish coastal asking prices rose 13.1% in the year to July 2026 on the idealista index, which puts most of the coast in that category today. A buyer there wants 10% or more on the table precisely because doubling it must hurt. A falling market flips the logic: the deposit is the seller’s insurance against a walking buyer, and sellers push toward 15%.
Timing shapes the real cost too. Deposits at risk sit dead for the 30 to 90 days between arras and notary, so a buyer stretching for a €40,000 arras on a €400,000 purchase should confirm the completion window is one their mortgage timeline can actually meet, because a financing delay past the long-stop date is a withdrawal in the contract’s eyes, with the same €40,000 consequence as a change of heart.
Buyer scenario: on a €350,000 Estepona apartment, a UK buyer negotiated a 7% arras (€24,500) against a 60-day completion, specifically because their mortgage bank quoted 6 to 8 weeks to a binding offer. The seller counter-asked 10% for a 90-day window. Both versions were rational: the buyer was pricing financing risk, the seller was pricing time off market. The signed contract took 7% with a written financing condition, which is what a correctly negotiated arras looks like.
Which clauses protect a foreign buyer?
Five clauses do most of the protective work in a cross-border arras, and every one of them exists only if it is written: Spanish courts enforce the text, not the buyer’s assumptions, and the standard 2-page agency form presented at signature contains none of the five protections by default.
- The type, named. “Arras penitenciales, artículo 1454 del Código Civil” in the body of the contract. Without it, the confirmatorias default applies.
- A financing condition. Deposit returned on documented mortgage refusal, stating the loan amount sought, the application deadline and the refund mechanics. Spanish banks quote 4 to 8 weeks to a binding offer for non-resident mortgages, so the completion window must fit.
- Clean-title delivery. Sale free of charges, occupants and community debt at completion, with the seller obliged to cancel any mortgage at or before the notary. The nota simple you order before signing is the baseline this clause is measured against.
- A licence condition where the plan depends on one. A holiday-let purchase priced on tourist income should make the regional registration position a written condition, because 60% of a community of owners can bar the use after completion.
- Custody and completion mechanics. Who holds the deposit, the long-stop date, which notary, and who pays what: buyer costs run roughly 10% to 13% over the price and the split should be explicit.
Language risk runs through all five. An arras drafted only in Spanish binds a buyer who signed a text they could not read, and courtesy translations have no legal standing unless the contract says both versions govern. Independent review before signature costs a fraction of the deposit at stake, and that single review is the checklist step that catches the missing type, the absent financing condition and the charge that was visible on the registry all along. The due diligence guide sequences those checks.
Send us the draft arras and the property address. We connect you with an independent English-speaking lawyer who checks the type, the conditions and the registry position before your deposit moves.
Get an arras reviewed before you signHow do arras work on a new-build purchase?
New build replaces the single arras with a two-step structure: a reservation document of €3,000 to €10,000 takes the unit off the market, and a private purchase contract 2 to 6 weeks later fixes the price and starts staged payments that typically total 20% to 40% before delivery.
| Stage | Document | Money at risk | Protection that applies |
|---|---|---|---|
| Reservation | Documento de reserva | €3,000 to €10,000 | Contract terms only; often forfeited on withdrawal |
| Contract | Contrato privado de compraventa | 10% to 20% at signature | Ley 57/1968 bank guarantee, per payment |
| Construction | Staged instalments | Up to 40% cumulative | Ley 57/1968 guarantee, per payment |
| Completion | Escritura at notary | Balance plus 10% IVA and regional AJD | Registry title |
Ley 57/1968 is the difference that matters. Resale arras money is protected by contract rules; developer stage money is protected by a bank guarantee or insurance policy that must cover every euro paid before delivery, and penalty wording borrowed from arras practice is not a substitute. A developer contract that offers “double your deposit back” while the guarantee certificate is missing has offered the weaker of the two protections dressed as the stronger.
Verification is mechanical and worth doing on every payment: match each transfer against a guarantee certificate naming the exact amount, check the policy issuer exists and is authorised, and keep the certificates with the contract. The mechanics are owned by the bank guarantee guide, the payment calendar by the off-plan payment schedule guide, and the practice is visible in how listed developers such as Aedas Homes issue per-payment certificates on schemes like South Place in Estepona.
Checklist for a reservation signed this month: the reservation amount and its refund terms in writing, the draft purchase contract received before the reservation expires, the guarantee issuer named in the contract, and no stage payment transferred before its certificate exists.
What happens between arras and the notary?
Completion mechanics fill the 30 to 90 days between arras and escritura, and the buyer’s side of the work is front-loaded into the first 2 weeks: mortgage application filed, valuation (tasación) instructed, and the notary date fixed early enough that the long-stop date never becomes the story.
- Weeks 1 to 2. Mortgage application with full documentation; the bank instructs the tasación. Non-resident files take longer than resident ones, so slack here is cheap insurance.
- Weeks 2 to 6. Bank issues the binding offer (FEIN), which carries a mandatory 10-day reflection period before the mortgage deed can be signed.
- Week before completion. Fresh nota simple confirming no new charges since the arras; utility and community-fee position confirmed; funds positioned in Spain.
- Completion day. Escritura signed before the notary, balance paid, keys handed over; the arras deposit is applied to the price.
- After completion. Transfer tax self-assessed and paid within 30 working days in most regions; registration follows.
Failure between arras and notary almost always traces to a mismatch between the financing timeline and the contractual one, which is why the two protective clauses, the financing condition and a realistic long-stop date, were negotiated back at signature. A buyer using a power of attorney to complete remotely should have the POA notarised and apostilled inside the first 2 weeks, since consular appointments add 1 to 4 weeks of lead time.
Red flag: a seller or agent pressing to shorten the completion window after the arras is signed. The window was priced into the deposit; shortening it transfers financing risk to the buyer for free. Changes to dates are amendments to a binding contract and belong in writing, with legal advice, or not at all.
Closing verification checklist
Seven checks close an arras safely, and none of them takes longer than the days they protect.
- The words “arras penitenciales” and article 1454 appear in the contract body.
- The deposit amount, holder and application at completion are explicit; prefer a client account or escrow.
- A financing condition states the loan amount, deadline and refund mechanics if a mortgage is involved.
- The completion long-stop date fits the bank’s 4-to-8-week reality plus the 10-day FEIN period.
- A pre-signature nota simple has been read against the clean-title clause.
- On new build, the Ley 57/1968 guarantee issuer is named and no payment precedes its certificate.
- The contract exists in a language you read, with the governing version stated.
Frequently Asked Questions
The private deposit contract before the notary deed: deposit paid (10% convention), terms fixed, withdrawal costs set. Under article 1454 penitenciales, a withdrawing buyer loses the deposit; a withdrawing seller returns double.
Courts read it as arras confirmatorias: the deposit is a part payment and the other side can sue for completion or damages under article 1124. The right to walk away for the deposit exists only if penitenciales or article 1454 is named.
5% to 15% of the price, with 10% the resale convention: €30,000 on a €300,000 purchase. No law fixes the amount; it prices market heat, completion window and each side's risk.
Only with a written financing condition stating the loan amount, deadline and refund mechanics. Without it, a documented refusal still costs the buyer the full deposit.
A lawyer's client account or true escrow is safest. Paying the seller directly is legal and common, and it makes the double-return remedy an unsecured claim against their solvency.
New build runs on a reservation (€3,000 to €10,000) plus a private purchase contract with staged payments, each of which must sit behind a Ley 57/1968 bank guarantee. Arras penalty wording does not substitute for that guarantee.
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