The contrato de arras is the private contract in which a buyer in Spain pays a deposit and both sides commit to complete the sale before the notary. The deposit is commonly around 10% of the price, and what you can do if you change your mind depends on the type of arras written in the contract. With arras penitenciales, the buyer can walk away by losing the deposit, and the seller can walk away by returning double. With arras confirmatorias, the deposit is only an advance on the price, and leaving the deal is a breach of contract. Published legal guides explain that the penitential kind has to be clearly stated, so the exact wording of your contract decides which rule applies. This guide explains the three types, shows the money at stake on a €250,000 purchase, and lists the clauses you should check before you sign. It is general information, not legal advice.
What is an arras contract?
The arras contract sits between the offer and the deed. After you agree a price, you and the seller sign a private contract that fixes the property, the price, the deposit and the date for the deed. You pay the deposit, the seller takes the property off the market, and both of you start the steps that lead to the notary. It is the point where a verbal deal becomes binding, which is why it is the most important document before the deed. Our step-by-step guide to buying in Spain places it at step 8 of 12. Do not confuse it with the small reservation payment that some agents ask for earlier, which usually holds the property for a few days while checks are made.
What are the three types of arras?
| Type | Legal basis | What the deposit means | If a party leaves |
|---|---|---|---|
| Penitential (penitenciales) | Civil Code, art. 1454 | The price of a right to withdraw | Buyer loses the deposit; seller returns double |
| Confirmatory (confirmatorias) | Commercial Code, art. 343 | An advance on the price and proof that the contract exists | Breach of contract; the general rules on obligations apply |
| Penal (penales) | Commercial Code, art. 83 | A guarantee that the contract will be performed | The party who walks away forfeits what was paid |
The names are in Spanish because they appear in the contract. Ask your lawyer to explain in English which one your contract uses and to confirm it in writing.
Which type applies if the contract does not say?
Published guidance by Spanish law firms says that if the contract is silent about the type, the deposit is presumed to be confirmatory, and that the Supreme Court reads a penitential clause restrictively, so the parties must clearly intend it. In practice this means that you cannot count on a right to withdraw unless the contract says so. If you want a way out in return for losing the deposit, the contract must use clear words such as arras penitenciales and refer to art. 1454. If you do not want a way out, because you are buying a home you really want and you prefer to bind the seller, a confirmatory clause protects you better, because the seller cannot simply pay you double and sell to someone else.
What happens if you withdraw, and what if the seller does?
The table shows what is at stake under a penitential clause with a deposit of 10% on a €250,000 resale home.
| Scenario | Money outcome | Approx. in £ / $ |
|---|---|---|
| Deposit paid by buyer (10%) | €25,000 | ≈ £21,100 / $28,000 |
| Buyer withdraws | Buyer loses €25,000 | ≈ £21,100 / $28,000 |
| Seller withdraws | Seller returns €50,000 (double) | ≈ £42,200 / $56,000 |
Conversions are approximate and use the European Central Bank reference rates of 14 October 2026 (€1 = £0.844 = $1.120). Rates move every day.
Under a confirmatory clause the numbers do not work this way. Nobody has a right to pay to leave, and a buyer or seller who does not complete is in breach. The other side can generally ask a court to enforce the contract or to end it, with compensation for the damage, so the cost of leaving can be higher or lower than the deposit and has to be argued. A lawyer can tell you which route is realistic in your case.
How much is the deposit?
There is no legal figure. A deposit of around 10% of the price is common, and the amount is negotiable. A reservation paid before the arras is usually much smaller, and one guide puts it at roughly 1% to 5% of the value. The deposit is not an extra cost: if the deal completes, it counts towards the price, so the balance you pay at the notary is smaller. Tax and fees are calculated on the final price, as explained in ITP vs IVA vs AJD and in Spain property buying costs.
Which clauses should you check before you sign?
- Parties: names, NIE or passport numbers and addresses of every buyer and seller. Check that the seller is the registered owner, using the nota simple.
- Property: address, registry and cadastral references, and what is included in the price, such as furniture, parking space or storage room.
- Price and deposit: total price, deposit amount, the type of arras written in clear words, and how the deposit counts towards the price.
- Date and place of the deed: a date or a deadline, the notary, and what happens if the date slips.
- Costs: who pays which taxes and fees. By default the buyer pays the purchase tax and the seller pays the plusvalía municipal, but check the text.
- Charges and debts: the seller must deliver the property free of mortgages, seizures and unpaid community fees or IBI, or the contract must say how they will be cancelled at the deed.
- Mortgage clause: what happens to the deposit if your mortgage is refused (see below).
- Condition of the property: any known defects, licences for works and the energy certificate.
- Language: a translation for you, and a clause saying which version prevails.
What if your mortgage is refused?
Many buyers lose their deposit because they sign the arras before the bank has confirmed the loan. If you need a mortgage, ask your lawyer to include a clause that returns the deposit if the bank refuses the loan within a set number of weeks, with proof of the refusal. Sellers do not always accept this, so a stronger position is to ask the bank for an approval in principle before you sign, and to ask for a longer date for the deed. Non-resident buyers are typically offered 60% to 70% of the value, and you can read more in our main guide.
Who holds the deposit, and how do you pay it safely?
Agree in writing who holds the money. The safest routes are usually a lawyer’s client account or a third-party escrow arrangement, with a clear rule on when it is released, rather than paying the seller or the agent directly. Pay by bank transfer, not cash, keep the receipt and write in the transfer reference what the payment is for. Always check the account number with your lawyer by phone, because fake emails with changed bank details are a known fraud. If you are sending the deposit from abroad, plan the exchange rate and the timing using the money transfer guide.
What if the seller sells to someone else or pulls out?
The answer depends on the type. Under a penitential clause, the seller can leave by returning double, so you should expect to receive twice the deposit and little else. Under a confirmatory clause, the seller is in breach, and you can ask for performance or for the contract to end with damages. Evidence matters in both cases, so keep the signed contract, the proof of payment and all the messages. Ask your lawyer to send a formal notice at once. Our guide on buying as a foreigner explains who can help you.
Should you sign before a notary?
Most arras contracts are private documents signed by the parties. Some buyers ask to sign before a notary for extra certainty about identity and date. It costs more, so ask your lawyer whether it is worth it for the property and the sum involved.
What are the common mistakes?
- Signing without a lawyer, or with the seller’s or agent’s lawyer.
- Paying a deposit before checking the registry, the debts and the licences.
- Assuming you can withdraw by losing the deposit when the contract does not say penitential.
- Having no mortgage clause when you need a loan.
- Paying the deposit to an account that no one has confirmed by phone.
- Leaving the date for the deed open, with no consequence for delay.
- Accepting a contract only in Spanish, without a translation.
What is the step-by-step checklist?
- Get your NIE and hire an independent lawyer (see the NIE guide).
- Request the nota simple and check owner, charges and description.
- Ask your bank for an approval in principle if you need a mortgage.
- Have the lawyer draft or review the arras contract and translate it.
- Confirm the type of arras, the deadline, the mortgage clause and the cost split.
- Confirm the account and who holds the deposit, then pay by transfer.
- Keep the contract, receipt and messages, and prepare for the deed.
Frequently asked questions
Is the arras contract binding?
Yes. It is a binding private contract. How you can leave it depends on the type of arras written in it, and a deposit that is not clearly penitential is generally treated as an advance on the price.
How much is the arras deposit in Spain?
There is no legal amount. Around 10% of the price is common, and it is negotiable. The deposit counts towards the price if the sale completes.
Can I get my deposit back if the mortgage is refused?
Only if the contract says so. Ask your lawyer to include a clause that returns the deposit if the bank refuses the loan within a set period.
What happens if the seller withdraws?
With penitential arras, the seller can withdraw by returning double the deposit. With confirmatory arras, the seller is in breach and you can ask for performance or for the contract to end with damages.
Do I need a lawyer to sign an arras contract?
It is not required by law, but it is the moment when mistakes cost the most, so an independent lawyer should read the contract before you pay.
Sources
Official sources (check these for the current rule):
- Spanish Civil Code (Código Civil), art. 1454 and the rules on contracts (BOE)
- Land registry online service (Registradores de España)
- General Council of Spanish Notaries
Also cross-checked against published guides, because practice varies between notaries, registries and banks:
- Mariscal & Asociados: types of deposits in Spain
- Costa Luz Lawyers: the seller pulls out after the arras deposit
- The Local Spain: the nota simple
This is general information, not legal or tax advice. Rules and rates change, and your situation may differ. Confirm the figures with the tax authority and a qualified lawyer or tax adviser before you commit.
