Arras according to the CCCat

How to sign a deposit contract when the buyer plans to use bank financing for the purchase?

The first thing that must be stated is that in Catalonia there is a Civil Code own of the community. Regarding obligations and contracts, the matter is dealt with in the Book VI. It was approved by the Parliament of Catalonia on February 8, 2017 and entered into force on January 1 of 2018 (DF 9). 

Secondly, it should be noted that Book VI contains a complete, updated regulation and modern sales contract. Also in the article 621-8 regulates the arras. In its first numeral regulates the confirmatory deposit. They are also called pay and deposit. That is to say, a delivery on account of the price that implies that the contract is firm and that they arise from at that time the obligations between the buyer and the seller. Basically, the buyer must pay the full price and the seller must deliver or make available to the buyer the thing sold 

In the second paragraph, it regulates the penitential deposit. That is, the deposits granted to both parties involved in the contract a special power to terminate the contract. This faculty has the effect that if this termination occurs due to the buyer exercising it, lose the deposit. On the other hand, if the seller exercises this power, he must return the deposit doubled. Without However, this second paragraph of article 621-8 excepts the case of article 621-49. 

This precept is unique, and was introduced due to the reality of real estate sales in Catalonia, and -why not say it- in all of Spain. The factual substratum is simple: the majority of Real estate purchases require mortgage financing from a bank. What happens if after the signature of the earnest money Does the Bank not provide financing? Obviously, the buyer you will not be able to buy in most cases, and this can produce - if there is a deposit clause - that there is a withdrawal - at least tacit - from the buyer and he loses the earnest. 

This is the factual substratum of article 621-49 of the CCCcat, which is titled “forecast of third-party financing. We repeat the assumption of previous post. The buyer has a signed sale with a deposit contract but the Bank does not provide financing. What to do in these cases? 

Obviously, the consequences of the buyer's lack of financing can be agreed upon in the purchase and sale contract. But what if there is no agreement? The buyer has a serious problem and can be seen in the situation of losing the deposit. 

Requirements for your application of article 621-49 of the CCCat are:

1. Pact that the buyer plans to resort to financing from a credit institution. It can be added to all or part of the price, but it is enough to indicate that the sale is wants to finance. Note that the only possible financing is that of an entity of credit, not for example financing by another natural or legal person.
2. Express reservation of the right to withdraw of the contract by the buyer.
3. Justification documentary and within the agreed period of the financing entity denying financing, or, where appropriate, subrogation in the already existing mortgage. This requirement has one exception: the buyer's negligence. In this case, we are faced with a question of proof. Proving negligence is always difficult.

Effects of the buyer's withdrawal when the lack of financing is justified:

1. The seller's obligation arises to return the price delivered. Either you sweep, or in another concept. All amounts delivered must be returned to the buyer.
2. The obligation of the buyer arises to leave the seller in the same state as it was. before formalizing the contract (This question also raises problems. What expenses must be reimbursed? Let's think that before formalizing the contract there are expenses: occupancy certificate, intermediary fees, appraisals, etc...). As an example, if the buyer has the keys to the farm, you must return them. If you have carried out works, you must replace them, unless agreed in contrary.