The ‘agreements of arras' serve for more than what imagine: types and consequences

Los ‘contratos de arras’ sirven para más de lo que imaginas: tipos y consecuencias

The path to a compraventa is used to initiate through a first delivery of money, commonly designated signal or reservation, with which pretends  guarantee that said house goes to be for the buyer and no for no another person.

Said signal or reservation, that formalises by means of a document whose juridical denomination is the one of arras, goes to constitute, in principle, the first payment of the price of one of the economic outlays more significant that makes a person or a familiar unit.

They exist different types of arras very differentiated by the doctrine, and defined by the High court. The importance to know them roots in the different consecuenciasque produce depending on if they sign ones or others, consequences that will come determined fundamentally by the content that give in his editorial.

And like this, they admit three types of arras: confirmatorias, penal and penitenciales.

1.- Arras confirmatorias. They are those that are proof of the perfection or conclusion of the agreement of compraventa and constitute a signal of his celebration. It agrees the price, his delivery is to account of this and do not authorise to desist in case of incumplimiento. They are an authentic guarantee so much for the buyer that like this wants it, as for the vendor, that the compraventa future goes to make.

In the case of incumplimiento, the buyer prejudiced will be able to choose among demanding the fulfillment or the resolution, with the resarcimiento of harms and damages in this last case, as long as said harms are tried.

2.- Arras Penal. His purpose is the aseguramiento of the agreement by means of the threat that represents for the incumplidor an economic loss: they suppose a compensation of harms and damages, but do not prevent the exigibilidad of the obligation. Although, and in front of this last case of compensation and requirement of fulfillment, the Judge will be able to moderate the quantity of the first, if it treats of an incumplimiento partial. Therefore, if the one who breaks the terms and the obligations of the agreement is the buyer, will lose the quantity handed, whereas if the one who breaks is the vendor, will have to restituir of form bent the quantity received.

​3.- Arras penitenciales. Also designated arras of desistimiento, constitute a half lawful so that the parts can, unilaterally, desvincularse  of the agreement by means of the loss or restitution bent. They are those that pretend use usually and those that, in principle, find in all mind of vendor and buyer, although they are the exceptional. That is to say, if they do not express with clarity his consequences, or mentions the precept of the Civil Code in which they find regulated (article 1.454),will be in front of another type of arras.


Attentive therefore, when signing an agreement of arras, since in front of the diversity recognised, so much the doctrine like the jurisprudence have come understanding that, to fault of indication expresses in the agreements, the delivery of arras has a function purely confirmatoria or payment of a part of the final price.

Article written by Carmen Giménez, pleaded title of G&G Pleaded.

 
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