There are three types of arras, and they are not alike
Everyone calls it «the deposit», and that is where the problem starts: depending on how it is drafted, handing over that money means very different things.
Confirmatory: a payment on account of the price that confirms there is a contract. If one party fails to perform, the other can demand performance or terminate and claim damages. There is no right to walk away by paying.
Penalty: they work as an agreed penalty for breach. They replace compensation for damages, unless otherwise agreed.
Withdrawal (penitenciales): the only ones that allow you to back out. The buyer loses what was paid and the seller returns double. This is what almost everyone thinks they are signing.
What happens if the contract does not say which type
Here is the trap. The Civil Code regulates withdrawal arras, but the courts require the intention to allow withdrawal to be clear in the contract: if it is not stated, the payment is treated as confirmatory.
In other words: a deposit contract that does not say what type it is will most likely not allow you to back out. Someone who thought they could lose the deposit and walk away finds they can be forced to buy.
And the other way round: a seller who signs withdrawal arras out of habit is giving the buyer an exit option in exchange for an amount that may not make up for having the home off the market for two months.
What it must say, besides the type
Questions about arras
How much is usually paid?
It is freely agreed. A percentage of the price is common, but what matters is not how much, but what that payment means depending on the type of arras.
Can I sign without a lawyer?
You can. You can also end up in court over a three-line clause. Reviewing it beforehand costs a fraction of arguing about it afterwards.
What if the seller does not turn up at the notary?
It depends on the type of arras and what the contract says. With a well-drafted contract there is a way out; with a template one, sometimes the only option is to sue.
Can you draft one for us?
Yes, and we can also review the one you have been given. The review is almost always the best value: the draft comes from the other side and is written in their favour.