The preliminary sales contract (Proposta di acquisto) contains a clause that regulates matters related to the deposit.
The payment, confirming the intention to purchase, can be interpreted differently by the law, and as a result, the regulation of contract termination will proceed differently.
There are 2 most common types of advance payment:
I. Advance — acconto;
II. Security deposit — caparra.
Caparra can be of two types:
a) Confirmatory deposit (Caparra confirmatoria) — regulated by Article 1385 of the Italian Civil Code;
b) Penalty deposit (Caparra penitenziaria) — Article 1386 of the Civil Code.
The main difference between the advance and the security deposit lies in the degree of protection of the parties' interests in case of contract termination due to non-performance by one of the participants.
I. An advance does not guarantee compensation for damages, as it must be returned in any case, regardless of whose fault the termination occurred. The advance is limited to the refund of the same amount.
II. The security deposit (caparra) in contractual practice has a dual important purpose: to formalize the agreements reached and to serve as a deterrent in case one of the parties changes their mind.
In both cases of the security deposit — II a) and II b), if the sale does not take place due to the fault of the buyer, the buyer forfeits the deposit, and if the transaction does not take place due to the fault of the seller, the seller must return the received amount double.
The difference between caparra confirmatoria and caparra penitenziaria lies in the regulation of termination conditions.
In the case of the confirmatory deposit (Caparra confirmatoria, Art. 1385 of the Civil Code), the aggrieved party, in addition to withholding / reimbursing the deposit, may demand compensation for incurred losses, as well as enforcement of the contract.
The penalty deposit (caparra penitenziaria, Art. 1386 of the Civil Code), as can be seen from the name itself, essentially establishes compensation for possible termination, without giving the parties the right to demand more.
If the type of security deposit "caparra" is not specified in the contract, the conditions of Article 1385 will be applied by default, and the deposit will be considered as a confirmatory deposit.
In preliminary real estate purchase contracts, the most common type of security deposit is the confirmatory security payment (caparra confirmatoria), which demonstrates the seriousness of the participants' intentions and excludes the possibility of changing their minds without serious reasons.
What amount of deposit will need to be paid?
There is no law regulating this issue; everything depends on the agreements of the parties.
However, when discussing the conditions, it is necessary to remember that too small a payment and an underestimated purchase price in the contract can work against you. For example, another buyer may appear who offers a higher price — in this case, it will be more advantageous for the seller to return the amount paid by you double and conclude a new contract.
Most often, the parties agree on a deposit payment amounting to 10% of the purchase price, but if the buyer agrees to a deferred transaction date, installment payments, and other favorable conditions for him, then he should be prepared for an increase in the amount of the deposit.