Cancellation of the preliminary contract and return of the deposit

Real estate law

In the case of property sales for which an estate agent has been commissioned, it is customary for the offeror of a purchase offer to initially pay an amount (deposito cauzionale) directly to the estate agent as security for the commitment entered into. As a rule, this amount is automatically converted into caparra/liability money and handed over to the seller as soon as the purchase offer is accepted. In other cases, this deposit is deducted from the total price to be paid when the final contract is signed.

But what happens if one of the parties cancels the preliminary contract? From whom is the deposit then recoverable? In its judgment no. 3596 of 8^th February 2024, the Italian Supreme Court stated as follows: “In the case of a security deposit of a sum of money paid by the purchasing party in connection with the conclusion of a preliminary purchase contract in favor of the intermediary agency, without it being possible to infer in any way that the agency has acted on behalf of the seller, the action for recovery of the objectively unduly paid sum, the return of which is sought, must be brought against the intermediary agency and not against the promising seller, who is not passively legitimized.”

It is clarified that the cheque deposited can only be considered as retention fee (caparra) if this is clearly indicated; otherwise it is considered a mere deposit (deposito cauzionale). In the event of collection by the agency, the latter is therefore the party to whom the recovery is to be addressed and not the seller.

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