At the time of carrying out the purchase operation of a property, by its very nature, it is extremely important that there is security at the time of executing each procedure, that is why it is usual and advisable to sign a purchase option contract or a deposit contract, in order to guarantee the reservation of said property until the date of granting the public deed and avoid any unforeseen.
Because both contracts are similar, it is very interesting to be able to distinguish their differences well and thus, know in which situations it is more convenient to sign one type of contract and in other cases another.
DIFFERENCES:
Deposit contract:
The purpose of this contract is to deliver a amount of money in order to ensure the purchase of the property or granting the power to rescind it freely consenting to lose the amount delivered or pay a penalty.
There are three types of deposit contract:
- Confirmatory Deposits:
It consists of the delivery of an amount of money as a sign of confirmation of the contract. Their main function is to serve as proof of the conclusion of the contract, and they involve the execution of the same. Similarly, it is expected that this amount delivered as deposit will be considered on account of the price, as a payment on account.
In this case, the fulfillment of the deposit contract by both parties is mandatory, and cannot be terminated unilaterally. Therefore, in case of non-compliance, the injured party may request the termination of the contract or claim its specific execution, in both cases with the right to compensation (Art. 1124 CC.).
- Penitential Arras:
The existence of such deposits authorizes and empowers to legally dissociate either party from the fulfillment of a contract, however, if the withdrawal is made by the buyer, it will lose the deposit delivered to the seller, on the contrary, if the selling party is the one who desists, it must return the deposit in duplicate (Art. 1454 CC.)
- Penalty arras:
They consist of a strict guarantee of the fulfillment of the contract, through the loss of the deposit delivered in this concept, or the return doubled by the one who has received them, depending on who has breached the obligation, equivalent to a penal clause.
The difference with the penitential arras is that they do not authorize the withdrawal of the contract, but are presented as a penalty attached to the breach, and as a means of assessing the damage produced, equivalent, depending on the case, to a future compensation of the damages.
Contract with option to purchase:
This contract consists of the owner granting a third party the right to buy a property, which can be considered in a pre-contract, as stated in the Judgment of the Supreme Court of April 23, 2010:
“The pre-option contract is one by which one of the parties attributes to the optant the right to decide to put into force a contract (normally, as in the present case, of sale) within a specific period. In this sense, it implies the granting by one party to the other of the exclusive power to decide whether or not to conclude the main contract of sale”.
Therefore, such a right that is granted to the potential buyer is the most important feature and that differentiates from the deposits, such a right can be transferred to third parties.
Another characteristic of this type of contract is that a period is established to be able to exercise this right, after that period, you lose your right to purchase. On the other hand, the seller can demand an amount as an “option premium”, which, if in the end such a right is not exercised within the stipulated period, will lose the premium paid and the contract will be canceled, so that the seller will again have full availability on the property.
