Types of arras: Penitenciales, confirmatorias, and penales

This table is the whole article in four rows. Everything below develops each case.

These are the only ones expressly regulated in the Civil Code, and the ones almost everyone believes they are signing. They work as a fixed-price exit: if the buyer withdraws, they lose what they paid; if the seller withdraws, they repay double.

What matters is understanding what you are buying. You are not buying a penalty: you are buying the right not to buy. Neither party breaches anything by withdrawing, because the contract expressly contemplated that outcome. That is why nobody can afterwards claim additional damages or demand that the sale go ahead.

For arras to be penitenciales they must be agreed as such, expressly and unambiguously. The usual formula cites Article 1454 of the Civil Code and states in full that the parties may withdraw by forfeiting or doubling the deposit. Writing only "arras" or "deposit" is not enough.

These are not an exit, they are an entrance. They confirm that the sale contract exists and operate as an advance on the price. Nobody has bought a right to withdraw, because none was agreed.

If a party backs out here, they are not withdrawing: they are in breach. And in reciprocal obligations the injured party chooses between two routes — demanding performance or rescinding the contract — and in either case may also claim damages and interest.

The practical consequence is alarming the first time you see it: a buyer with arras confirmatorias who has second thoughts can be sued to execute the deed and pay the full price. Losing the deposit is not the worst available outcome, it is the best one the seller could offer.

These are a penalty clause applied to a sale. The parties fix in advance what breach costs, and that figure replaces damages and interest, which then need not be proven or quantified.

The common confusion is believing that paying the penalty lets you walk away. It does not: the debtor cannot escape performance by paying the penalty unless the contract has expressly reserved that right. Without that reservation, a buyer who backs out forfeits the deposit and can still be compelled to buy.

The symmetry matters in the other direction too: the creditor cannot demand both performance and the penalty unless that power has been clearly granted. These are clauses to be drafted with care or not drafted at all.

This is the point that costs the most money. If the contract refers to "arras" or a "deposit" without specifying the type, Spanish Supreme Court case law presumes they are confirmatorias. The penitential character is exceptional and must be expressly stated.

Put differently: silence does not leave you in the middle option, it leaves you in the harshest one. An ambiguous contract is not a neutral contract, it is one that plays against you if you are the party who might need a way out.

And "express" means express. Courts have refused penitential status to contracts saying things like "in the event the transaction does not proceed" without specifying who may withdraw or with what consequence. Ambiguity is resolved by returning to the general rule.

Look in the contract for the word "penitenciales" and a reference to Article 1454. If both appear, alongside a sentence describing what happens if each party withdraws, you have arras penitenciales.

If only "arras" or "deposit" appears, or the text merely says the amount will be deducted from the final price, they are confirmatorias by default — even if the seller told you verbally that you could back out by forfeiting the money.

If there is a fixed sum set as a penalty but no mention of withdrawal, they are probably penales, and it is worth checking whether the contract expressly reserves the right to be released by paying that penalty. Without that reservation, the penalty is not an exit.

None of this depends on the document title. A paper headed "Arras penitenciales contract" whose clauses do not agree a right of withdrawal does not make the deposit penitential; what counts is what the clauses say.