In 30 seconds
- The preliminary contract binds the parties to sign the final deed later, but does not transfer ownership.
- For a home it must be in writing, otherwise it is null; it must be registered and, if made by notarial deed, can be transcribed.
- Sums paid must be properly characterised: a down payment is not a confirmatory deposit.
- If the seller does not appear before the notary, in addition to damages you can ask for a judgment that transfers ownership (art. 2932 c.c.).
Updated on October 14, 2026.
The purchase of a property almost always goes through an intermediate step: the preliminary contract. Many people ask why one does not go straight to the notary for the final deed. In this guide you will find what it is for, which formal rules apply, how the deposit works and what you can do if the other party does not sign.
What is the preliminary contract?
It is the contract by which one or both parties undertake to conclude the final contract in the future, that is, the notarial deed of sale. If the obligation concerns both seller and buyer it is a bilateral preliminary contract; if it binds only one party, leaving the other free to decide, a unilateral preliminary contract. The preliminary contract creates the obligation to sell and to buy, but does not yet transfer ownership.
What is the preliminary contract for?
- Gaining time: the deal is locked in and the final signing is postponed, for example to obtain the mortgage loan or prepare the documents.
- Checking that everything is in order: in the period between the preliminary contract and the deed, origin of title, mortgages, planning and cadastral conformity are verified, and you are protected against negative changes.
Which rules apply to form, registration and transcription?
Is the written form mandatory?
The preliminary contract must have the same form as the final contract (art. 1351 c.c.): for a home, written form is required, otherwise it is null. Any consensual termination must also be made in writing.
How is the preliminary contract registered?
The preliminary contract must be registered with the Revenue Agency within the legal time limit, which is normally twenty days from the date of the deed. Amounts and taxes depend on the content, for example on the sums paid: it is advisable to have them calculated in advance.
When can the preliminary contract be transcribed?
If the preliminary contract is drawn up by notarial deed (or by authenticated private agreement) it can be transcribed in the property registers (art. 2645-bis c.c.).
Transcription has a priority-reserving effect: if the seller sells the same home to a third party, or if mortgages or attachments arise, whoever has transcribed is in a much more protected position. It is especially useful when a long time passes between the preliminary contract and the deed.
What changes if I receive the keys early?
If the seller hands over the keys before the deed (preliminary contract with advance effects), whoever receives them is normally a mere holder and not a possessor: living in the home before the deed is not, in itself, enough to trigger adverse possession.
What is the difference between a down payment and a confirmatory deposit?
A sum is often paid at the preliminary contract, and it is important to characterise it correctly:
- a down payment is an advance on the price, to be returned if the sale is not concluded;
- a confirmatory deposit (art. 1385 c.c.) also serves as a guarantee and as an advance liquidation of damages.
The name given to the sum in the contract matters, but so do the parties’ intention and the clauses. A generic or contradictory wording is a source of disputes. For the withdrawal deposit, which allows you to withdraw by losing it, see the dedicated guide linked below.
What to do if a party does not perform?
If a party pulls out or does not appear before the notary, you have several routes:
- withdraw from the contract and keep the deposit, if the defaulting party is the one who paid it;
- withdraw and demand double the deposit, if the defaulting party is the one who received it;
- request termination or performance of the contract, with damages to be proved under the general rules;
- ask the court for specific performance (art. 2932 c.c.): a judgment that produces the effects of the contract not concluded and transfers ownership, on condition that you pay or offer the remaining price. The claim must be transcribed.
In any case a breach that is not of minor importance is needed. For disputes on rights in rem, mandatory mediation is as a rule required before the lawsuit.
Why be assisted by a lawyer?
Drawing up a preliminary contract is not a formality. There are many pitfalls: for properties to be built the law imposes mandatory content and guarantees; for properties coming from a gift there is the risk of claims by the heirs, to be managed with specific clauses; in the “preliminary of a preliminary” validity depends on a concrete interest of the parties.
Before signing it is advisable to have checked the origin of title, mortgages, planning and cadastral conformity, the date of the deed and conditions precedent, for example obtaining the mortgage loan.
The route that usually makes sense
The possible routes
- Go straight to the notary for the deed.
- First sign a written preliminary contract, registered and, if useful, transcribed.
- If the other party does not sign: withdrawal with the deposit, termination with damages, or a judgment under art. 2932 c.c.
Which one usually makes sense and why
A carefully written preliminary contract usually makes sense, with the sums clearly characterised and, when a long time passes before the deed, transcription. If the deed falls through, the choice between withdrawal, termination and judgment depends on who is in breach, on how the deposit was defined and on how much you still want to buy the home. It depends on the case and the documents.
What to do right away
- Bring the draft of the preliminary contract before signing it, with the documents of the property.
- Check how the contract characterises the sums paid: down payment or deposit.
- Verify registration and any transcription; gather origin of title, mortgages and planning and cadastral conformity.
Every situation must be assessed on the documents of the specific case: this indication is not a promise of any outcome.
Read also: The buyer does not appear at the deed: what to do? Practical guide for the seller · Rent to buy: how to buy a home even if you can’t get the mortgage straight away · Sale of a property with retention of title: the simple guide to avoiding tax risks · How to buy a home and sign contracts without risks: the easy guide for everyone · Rome: I paid the deposit to buy a home and the seller has second thoughts, what can I ask for? · Buying a home that is not compliant: is the deed of sale valid? Here is what the Court of Cassation decided · Purchase offer signed at the agency: is it binding? Deposit, withdrawal and risks · Preliminary contract for a villa in Vico Equense: deposit and what to do if the seller has second thoughts.
How Avv. Fiorentino can assist you
The Firm also works remotely, with documents sent online. The quote is in writing and arrives before the engagement. The offices are in Naples, Rome and Bari, by appointment.
Frequently asked questions
What is the preliminary contract of sale?
It is the contract by which one or both parties undertake to conclude the final contract in the future, that is, the notarial deed of sale. It does not yet transfer ownership.
Must the preliminary contract be in writing?
Yes: it must have the same form as the final contract, so for a home written form is required, otherwise it is null.
What is the difference between a down payment and a confirmatory deposit?
A down payment is an advance on the price, to be returned if the sale is not concluded. A confirmatory deposit (art. 1385 c.c.) also serves as a guarantee and liquidates damages in advance: whoever withdraws because of the other party’s breach can keep it or ask for double.
What can be done if the seller does not appear before the notary?
In addition to damages, you can ask the court for specific performance (art. 2932 c.c.): a judgment that produces the effects of the contract not concluded, by paying or offering the remaining price.
What is the point of transcribing the preliminary contract?
Transcription in the property registers has a priority-reserving effect: if the seller sells the same property to someone else, transcription protects whoever signed the preliminary contract.
Sources: Normattiva, Civil Code, artt. 1351, 1385, 2645-bis and 2932. Author: Avv. Renato Giuseppe Fiorentino, Naples Bar. Informational text, it does not replace an opinion on your case.
Related guides
- Withdrawal deposit in the preliminary contract: if you pull out, what do you lose?
- Specific performance (art. 2932 c.c.): when the court transfers the property
- Buying a home in Campania: the legal checks before the preliminary contract
- Defects in the home purchased: deadlines to report them and remedies
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(Read also): Legal guides from Studio Legale Fiorentino · Buying a home that is not compliant: is the deed of sale valid? Here is what the Court of Cassation decided · Rome: after buying I discovered defects in the home, by when must I report them to the seller?
Translated from the Italian original; updated on October 18, 2026.
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