A real estate preliminary agreement does not transfer ownership alone. If one of the parties unreasonably refuses to conclude the promised sale, the other can request the court to issue a decision that replaces the contract if the legal conditions are met. For the action based on Article 1669 of the Civil Code, the special deadline is 6 months from the date on which the contract should have been concluded.

What is the sales promise

The bilateral sales promise, often referred to as the preliminary contract, creates the obligation for the parties to subsequently conclude the final contract. It does not itself transfer the right of ownership. The promised contract must be identifiable from the agreement of the parties, including the sold item and the agreed or determinable price.

If one of the parties unreasonably refuses to sign the promised contract, Article 1669 of the Civil Code allows the other party to request a judgment that replaces the contract, provided that the deadline and legal requirements are met. The remedy is not automatic: the court analyzes the promise, the conduct of the parties, and whether the sale can be concluded validly.

The main conditions for the decision that replaces the contract

  • A promise that is valid and precise enough: The contract must show what property and price the parties have agreed upon, as well as the other elements necessary for the conclusion of the sale.
  • Unjustified refusal: it must be proven that the party summoned to court did not fulfill its obligation to conclude the contract, although it had become exigible.
  • Execution of the claimant’s obligations: The party requesting the judgment must have fulfilled the obligations assumed by the promise, for example the payment of the outstanding amounts, or be able to prove the relevant situation according to the contract and the law.
  • Conditions of validity of the sale: The court checks, among other things, the capacity, consent, object and price, as well as the special requirements applicable to the property. The decision cannot supplement any deficiencies in the mandatory documents or procedures.

The High Court’s decision no. 23/2017 established that the promise to sell a property must not be concluded in authentic form merely to be able to request a judgment that replaces the contract. This does not mean that any document signed under a private seal is sufficient: the agreement on the essential elements and all the other conditions required by law must be proven.

The 6-month term

According to Article 1669, paragraph (2) of the Civil Code, the right to bring an action for the enforcement of the decision that replaces the contract expires after 6 months from the date on which the contract should have been concluded. The starting date is determined by the promise and the concrete circumstances; the clauses regarding the terms, conditions or stages of the transaction may count. It does not assume that the deadline begins automatically upon completion of the construction or upon a subsequent notification.

This term refers to the action for the decision that replaces the contract. Other claims, such as the resolution of the promise, the restitution of sums or compensation, may have different rules and deadlines, which must be analyzed separately.

Attention to agricultural land located in the outskirts

For non-agricultural land, Law no. 17/2014 may be applicable. Article 5 of this law sets out additional conditions for the action requesting a decision that replaces a contract, including requirements regarding the procedure and the approvals provided by law, as well as the registration of the property in the tax role and in the land register. The regime depends on the category and location of the land and the specific situation; verification must be done before submitting the application.

What evidence is useful

Keep the promise and the additional documents, the proof of payments, the extract from the land registry, the notifications and correspondence with the other party. Evidence regarding the summoning to the notary, the presentation of the parties, the fulfillment of the agreed conditions and the reason why the final contract has not been concluded may also be useful. For non-urban agricultural land, separately check the documents and the steps required by Law no. 17/2014.

Before choosing the action, clarify whether you are seeking the termination of the sale, the rescission of the promise and the refund of sums or compensation. These remedies are not identical, and the 6-month period in Article 1669, paragraph (2), refers to the action for a decision that replaces the contract.

Official sources

Informational material, not individual legal advice. The solution depends on the content of the promise, the property documents and the law applicable at the relevant date.