Offer, Preliminary Contract, Deed: Who Is Bound, and When

Picture a single sheet of paper on a table, a pen beside it, a seller on one side and a buyer on the other. Whether that sheet is an offer, a preliminary contract or the deed itself is the question this piece takes up.

It sets out what each document does, on the texts read on 30 September 2026. The outline of the purchase is in “How a Foreigner Buys Property in Italy”, and the taxes are in “The Taxes on Buying a Home in Italy, 2026: Line by Line”.

How do the three documents differ?

Side by side, the three documents answer the same questions differently: what they are, what form they take, what they bind.

AdE is the Agenzia delle Entrate, the Italian revenue agency.

When does an offer bind?

Start with acceptance. A contract is concluded when the person who made the offer learns of the other party’s acceptance. The acceptance must reach the offeror within the time the offeror stated or, failing that, the time ordinarily needed. A late acceptance takes effect only if the offeror gives immediate notice to the other party. An acceptance that changes the offer is treated as a new offer.^[10]

An offer can also be made irrevocable. If the offeror has bound himself or herself to keep the offer open, revocation has no effect. Death or incapacity of the offeror does not remove the effect of the offer unless the nature of the transaction or the circumstances exclude that.^[11]

What an accepted written offer produces depends on what it says and on the intention of the parties. Two points come from the Court of Cassation. In decisions on the estate agent’s commission, reported by law firms, the Court has held that the commission arises on the “conclusion of the affair”, meaning a legal tie that allows each party to sue for specific performance or damages. An agreement that is only preparatory does not meet that test.^[12] These decisions concern commission, not the position between buyer and seller in every case.

The other point concerns agreements to conclude a further preliminary contract. The Joint Sections of the Court of Cassation held that such an agreement produces effects only where the parties have an interest, worthy of protection, in forming the contract in stages, and where the narrower area covered by the first agreement can be identified. Breach of such an agreement can give rise to contractual liability for failing to conclude the intended contract.^[13]

For deals concluded through an estate agent, the Agenzia delle Entrate (AdE), the Italian revenue agency, states that the purchase offer is not subject to registration. The seller’s acceptance is subject to registration only where the clauses of the offer form are in themselves sufficient and necessary to conclude a preliminary contract. In that case the agent must request registration.^[14]

What does the preliminary contract do?

With the preliminary contract the parties bind themselves mutually to conclude the final contract of sale. Ownership does not pass until the final contract is signed, the AdE states. It gives as examples of the contract’s use that the buyer is looking for a mortgage or the seller is waiting for a new home to be delivered.^[15]

A preliminary must have the form the law prescribes for the final contract, on pain of nullity.^[1] Contracts that transfer ownership of immovable property must be made by public deed or written private deed, on pain of nullity.^[2] The AdE adds that the preliminary must be in writing, whether as a private writing, an authenticated private writing or a public deed.^[15]

The preliminary must be registered within 30 days of signing. Fixed registration tax is €200, plus stamp duty of €16 for each sheet, a sheet being at most four pages and at most 100 lines. A proportional tax applies to deposits and to payments on account. The rates, and the credit of that tax at the deed, are in “The Taxes on Buying a Home in Italy, 2026: Line by Line”. Where the preliminary is made before a notary, the notary registers it.

If a party who has undertaken to conclude the contract does not do so, the other party can obtain a judgment that produces the effects of the contract not concluded, which is called specific performance.^[16] Where the contract transfers ownership, the claim cannot be granted unless the claimant performs, or offers to perform, his or her own part.^[16] Where a deposit has been given, the Civil Code provides other remedies, described next.

What does the deposit do?

The word caparra covers two different arrangements in the Civil Code, which treats them in articles 1385 and 1386.

The first is the confirmatory deposit, the caparra confirmatoria. On performance it is returned or credited against the sum due. If the party who gave it fails to perform, the other may withdraw from the contract and keep it. If the party who received it fails to perform, the other may withdraw and demand double the amount. The party who is not in default may instead ask for performance or termination of the contract, and damages are then governed by the general rules.^[17]

The second is the penitential deposit, the caparra penitenziale. Where a right to withdraw has been agreed, the deposit is only the price of withdrawal. The party who withdraws loses the deposit given, or returns double the deposit received.^[18]

How the courts read the confirmatory deposit is set out next. The Joint Sections of the Court of Cassation held that the right to withdraw and keep the deposit presupposes a breach that is attributable to the other party and not of slight importance in relation to the other party’s interest. The breach is assessed in the same way as for termination for breach, by comparing the conduct of both parties. The Court described the deposit, on withdrawal, as a conventional and advance liquidation of the damage, so that the damage need not be proved. It held that this remedy and a claim for full damages are alternatives that cannot be combined: a party who claims termination and full damages must prove the damage under the general rules.^[19]

A decision reported in 2026 states that withdrawal does not need an express termination clause: an agreement on a deposit actually paid and a serious breach are sufficient. The decision sent the case back for a new assessment of the facts.^[20]

The tax on each kind of deposit is in “The Taxes on Buying a Home in Italy, 2026: Line by Line”. In a case reported in 2026, a sum first described as a payment on account was classified as a deposit by the court of first instance.^[21]

What can transcription do for a preliminary contract?

The preliminary creates an obligation between seller and buyer. It does not stop the seller from selling the property to someone else, or from granting other rights over it, and in that case the buyer can claim only damages, not cancellation of the later sale, according to the AdE.^[15]

Transcription of the preliminary contract addresses this. Article 2645-bis of the Civil Code provides that a preliminary for a contract of the kinds listed in the Code, which include contracts transferring ownership of immovable property, “must be transcribed” (devono essere trascritti).^[22][23] That applies if it results from a public deed or from a private writing with authenticated or judicially ascertained signature.^[22] The AdE describes transcription as a tool that the law makes available to the buyer.^[23]

The effects are these. The transcription of the final contract prevails over transcriptions and registrations made against the seller after the transcription of the preliminary.^[22] The effects lapse unless the final contract, or another act that fulfils the preliminary, is transcribed within one year of the date agreed for the final contract and in any case within three years of the transcription of the preliminary.^[22] And acts have no effect against third parties who acquired rights on the basis of an act transcribed or registered earlier, which is why the order of entries matters.^[24]

Transcription is possible only on a judgment, a public deed or an authenticated or judicially ascertained private writing.^[25] The AdE states that a notary must take part in the preliminary for it to be transcribed.^[26] In that case, on top of registration tax and a stamp duty of €155, mortgage tax of €200 and mortgage charges of €35 are due.^[26] The provisions on buildings under construction are not covered here.^[27] The notary’s checks are described in “What the Notaio Checks, and What the Notaio Does Not”.

What does the deed of sale do?

In a contract that transfers a determined thing, ownership passes by consent legitimately expressed.^[28] For immovable property the consent must be given in the form the law requires.^[29] The Agenzia delle Entrate states that ownership passes only on signature of the final contract.^[30]

The deed is then transcribed in the land registers, and the notary handles the registration and transcription.^[31] The checks before the deed are in “What the Notaio Checks, and What the Notaio Does Not”, and the cadastral and building documents in “The Cadastre and the Building File: Two Records, Two Purposes”.

Who is bound at each stage?

Taken in order, the answer runs as follows. The offer binds as far as its content and the parties’ intention say, and an irrevocable offer cannot be revoked during the time stated.^[11] The contract that the offer proposes is concluded when the offeror learns of the acceptance.^[10] The preliminary contract binds each party to conclude the sale. Ownership does not pass, registration is due within 30 days, and transcription is provided for if a public deed or authenticated writing is used. A deposit, given under the preliminary, has the consequences the Civil Code sets out.^[17][18] At the deed of sale ownership passes, and the notary registers and transcribes.