Confirmatory deposit (caparra confirmatoria) and penitential deposit (caparra penitenziale): the differences
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What a deposit is, in simple termsConfirmatory deposit: how it worksPenitential deposit: the price of exitConfirmatory and penitential deposit: the differences in briefHow to tell which of the two you have signedCommon mistakesThe preliminary contract must be registered, and the deposit must be written properlyIn practiceFrequently asked questionsSourcesIf you sign a preliminary contract (preliminare) and then back out, the deposit decides who loses what. With a confirmatory deposit (caparra confirmatoria), whoever paid it loses the sum, and if the person who backs out is the one who received it, they return it doubled. With a penitential deposit (caparra penitenziale), by contrast, whoever withdraws pays the withdrawal price set in the contract, and owes nothing more.
What a deposit is, in simple terms
The deposit (caparra) is a sum of money that one party pays to the other when signing the preliminary contract (compromesso), that is, the agreement to buy and sell under certain conditions. It serves as a guarantee: it shows that the purchase must go ahead, and it sets out what happens if one of the two parties does not respect it.
The deposit is not a simple advance payment. If you have paid a down payment (acconto), that is an advance on the price, and if the contract does not go ahead you usually get it back. To understand the difference, read acconto o caparra: cosa cambia se salta la vendita.
The deposit usually appears in the preliminary contract, and sometimes already in the purchase proposal (proposta d'acquisto). For this reason, it is wise to read calmly cosa firmi e cosa rischi con la proposta d'acquisto before putting your signature to it.
Confirmatory deposit: how it works
The confirmatory deposit (caparra confirmatoria) is the one governed by Article 1385 of the Civil Code. The principle is simple: whoever fails to respect the contract loses the deposit, or returns it doubled, depending on who was at fault.
The rule has two sides:
- if the party who fails to respect the contract is the one who paid the deposit, the other party may withdraw and keep it;
- if the party who fails to respect the contract is the one who received it, the other party may withdraw and demand double the amount.
Example. The price is €100,000 and the confirmatory deposit is €10,000.
- You, the buyer, pay €10,000 and then back out. The seller keeps €10,000.
- The seller backs out. They return €20,000 to you, that is, double the amount you paid.
The law does not oblige you to withdraw. The party who has stood firm may also choose another route: demand that the contract be performed, or that it be terminated with compensation for damages. This choice makes a big difference, which is why the case should be assessed with the notary or a trusted professional.
Penitential deposit: the price of exit
The penitential deposit (caparra penitenziale) is governed by Article 1386 of the Civil Code. Here the sum is not a guarantee of performance: it is the price the parties have agreed in order to withdraw, that is, to back out without further consequences.
Whoever withdraws loses the deposit or, if the person withdrawing is the one who received it, returns it doubled, and owes nothing more. It is a clear rule, which avoids disputes over compensation.
Example. The price is €100,000 and the penitential deposit is €5,000.
- You, the buyer, decide not to buy any more. You lose €5,000 and owe nothing more.
- The seller decides not to sell any more. They return €10,000 to you, double the amount, and owe nothing more.
In this case the cost of exit is fixed in advance. You do not have to prove any damage, nor wait for a judge to decide.
Confirmatory and penitential deposit: the differences in brief
- Purpose: the confirmatory deposit guarantees that the contract will be respected; the penitential deposit is the price for being able to withdraw.
- Whoever fails to respect the contract: with the confirmatory deposit, the consequences of non-performance apply, that is, loss or double return, and as an alternative you can demand performance or compensation.
- Withdrawal: with the penitential deposit, withdrawal is foreseen and costs exactly the deposit or its double, with no other claims.
- Outcome for the buyer: with the confirmatory deposit you risk the deposit and, if the seller is the one who fails, you may recover double; with the penitential deposit the cost of exit is always the one written in the contract.
How to tell which of the two you have signed
The contract must state clearly what happens in case of withdrawal or failure to respect it. Look for the clause on the deposit and read the words used.
- If the clause refers to the deposit as a guarantee of performance, or to the consequences for whoever does not respect the contract, it is probably a confirmatory deposit.
- If the clause says that one party may withdraw by paying or losing the deposit, that is, it fixes the price of withdrawal, it is a penitential deposit.
- If the text is not clear, do not sign until the notary or the professional assisting you has explained it to you.
Common mistakes
- Confusing the deposit with the down payment (acconto). The deposit has a function of guarantee and sanction; the down payment is an advance on the price.
- Thinking the deposit always comes back. If you back out without a reason foreseen in the contract, you lose it.
- Signing a clause without knowing which of the two deposits it is. The consequences are very different.
- Forgetting to register the preliminary contract within the right time. You will find the details in registrare il compromesso: costi e tempi.
The preliminary contract must be registered, and the deposit must be written properly
The preliminary contract must be registered within 30 days of signing. The deposit must appear in the contract with the amount, the date and the type of deposit chosen. The minimum content of the preliminary contract is explained in compromesso (preliminare): cos'è e cosa deve contenere.
In practice
- Read the deposit clause in the preliminary contract and check whether the text refers to a guarantee or to the price of withdrawal.
- Check how much you have paid and under what heading: as a deposit, as a down payment, or as part of the price.
- Calculate in advance how much you would lose, or how much you would receive, in case of withdrawal, using the figure written in the contract.
- Ask the notary to explain the clause to you before signing, and have the type of deposit written down for you.
Frequently asked questions
If I back out with a confirmatory deposit, do I lose everything?
You lose the sum paid as a deposit. The contract may provide for other consequences, so read the clause before deciding not to go ahead.
Can the seller ask me for more than the deposit?
It depends on the choice of the party who has stood firm. They may withdraw and keep the deposit, or demand that the contract be performed or terminated with compensation for damages.
Can I pay a down payment instead of a deposit?
Yes, but it is a different thing. The down payment is an advance on the price, which must be returned if the contract does not go ahead, subject to any damages. For the comparison, see acconto o caparra: cosa cambia se salta la vendita.
Sources
In the same chapter
- Who chooses the notary, who pays for themAs a rule, the buyer chooses and pays the notary, that is, the fee and the taxes: how to read the quote.
- Buying a home: every step from search to the notarial deed (rogito)From the viewing to signing at the notary: the six steps to buy a home, with documents, sums to pay and checks before you sign.
- Preliminary contract (compromesso): what it is and what it must containThe preliminary contract (compromesso) is the agreement through which you commit to buying a home. I explain what it is, what it must contain and how much you risk if the sale falls through.
- Right of habitation (diritto di abitazione): what it isThe right of habitation lets you live in someone else's home only with your family: it cannot be sold or rented out. Here is how it works.
- Pre-emption right: when it exists and how it worksPre-emption (prelazione) is the priority that gives you the right to buy first, at the same price and conditions: when it exists and how it works.
- Floor, orientation and lift: what they are worthFloor, orientation and lift change the price of a home. Here is how to assess them, with an example in euros and what to check before making an offer.
General information, not legal or tax advice: the law and the notice of sale prevail.
