Caparra confirmatoria: the deposit with a remedy built in
Quick answer: Italy has three payments that all look like a deposit and behave completely differently. The flat English rule that you simply lose a deposit is true of only one of them, which is why it appears in what English guides get wrong. A caparra confirmatoria under article 1385 lets you withdraw and demand double if the seller defaults. A caparra penitenziale under article 1386 is merely the agreed price of walking away. An acconto is a part payment with no consequence attached at all. Which one you hold is decided by the wording of the compromesso, not by the size of the cheque.
Foreign buyers hand over 10% of a purchase price on the strength of a word they have not looked up. This page is about that word.
The three payments, side by side
| What it is called | What it does if the buyer defaults | What it does if the seller defaults | On completion |
|---|---|---|---|
| Caparra confirmatoria, article 1385 | Seller may withdraw and keep it | Buyer may withdraw and claim double | Credited against the price |
| Caparra penitenziale, article 1386 | Withdrawing buyer loses it | Withdrawing seller returns double | Credited against the price |
| Acconto | Repaid | Repaid | Credited against the price |
The table looks similar in two columns and the difference sits underneath it. A confirmatoria is a remedy for breach: it exists because someone broke the contract. A penitenziale is a price for a right the parties agreed in advance: nobody has broken anything, one side has simply paid for the option to leave.
That distinction decides whether you can ask for anything more.
Why the confirmatoria is the one to want
Article 1385 gives the injured party a choice, and it is the choice that makes it valuable.
Take the remedy in the article. Withdraw from the contract and keep the deposit, or demand double it back. This is fast: it needs no proof of what you actually lost, because the deposit is the agreed measure.
Or ignore the article and sue. Insist on performance, or seek termination, and claim full damages proved in the ordinary way. Slower, more expensive, and worth it where your real losses exceed the deposit.
A buyer who has spent 8 months on a purchase, paid a surveyor, a lawyer and a translator, taken a mortgage offer that has since expired and lost a second property they turned down, may have losses well beyond 10% of the price. The confirmatoria does not cap that. It offers a fast route and leaves the slow one open.
A penitenziale closes the slow route entirely. Once the parties have agreed a price for withdrawal, that price is the whole liability. Whatever else you lost is yours to absorb.
How to tell which one you have
Read the compromesso rather than the covering email.
Italian law assumes confirmatoria where a deposit is given at the conclusion of a contract and nothing says otherwise. A penitenziale only exists where the parties have expressly agreed a right of withdrawal and stated that the sum is its consideration. So the default position favours a buyer, and the danger is a clause that quietly moves away from it.
Three formulations to look for.
“A titolo di caparra confirmatoria” is what you want, and it is the standard phrase.
“A titolo di caparra penitenziale”, or wording that grants either party a right of recesso against payment of the sum, converts your remedy into a fee the seller can choose to pay. In a rising market that is worth having on the seller’s side and not on yours: if a better offer appears, walking away costs them a known amount.
“A titolo di acconto” gives you no remedy at all beyond ordinary contract law. It is not a disaster, and it is not what most buyers think they are getting when they transfer 10% of the price.
Where the document uses more than one of these words in different places, which happens more often than it should in agency templates, get it corrected before signing rather than argued about afterwards.
The stage before the compromesso, where the money usually goes first
Most English descriptions of an Italian purchase start at the compromesso. In practice a foreign buyer’s first payment is usually earlier, at the proposta irrevocabile d’acquisto, and that stage deserves more attention than it gets.
A proposta is a written offer that the buyer undertakes to keep open for a stated period, commonly 15 to 30 days. It is normally accompanied by a cheque, and the agent holds it while the seller decides. If the seller accepts and the acceptance is communicated, the contract is concluded at that moment. The proposta becomes binding, and any caparra wording inside it starts operating.
Three consequences follow, and none of them is obvious from the document.
You are committed earlier than you think. Buyers often treat the proposta as an expression of interest and the compromesso as the real commitment. Legally, an accepted proposta can already be a binding preliminary contract. Whatever conditions you intended to attach, they need to be in the proposta rather than saved for the compromesso.
Your conditions must be written into it. A proposta made subject to a satisfactory survey, to mortgage approval, or to confirmation of building compliance protects you. One made unconditionally, with those checks planned for later, does not. This is the single most valuable sentence a buyer can insist on, and agency templates rarely contain it unprompted.
Agency commission can fall due here. Under the Civil Code an agent earns commission when the deal is concluded through their intervention, and acceptance of a proposta is generally treated as that moment rather than the rogito. A purchase that later collapses can therefore leave the buyer owing full commission on a house they never bought. Where a proposta is conditional, make the commission conditional in the same terms.
The practical rule is straightforward. Treat the proposta with the seriousness you were reserving for the compromesso, put every condition in writing at that point, and do not hand a cheque to anyone before you have read what the piece of paper it accompanies actually says.
What happens when a seller does default
The remedy reads cleanly on the page and takes longer in life, so it is worth knowing the shape of it before relying on it.
A seller who stops responding, relists the property, or simply refuses to complete has breached. The buyer then chooses. Withdrawing and demanding double is a claim that has to be made formally, usually through a lawyer’s letter, and enforced through the courts if the seller does not pay. Insisting on performance means an action under article 2932, which asks a judge to produce a judgment having the effect of the unconcluded contract, and that action can itself be transcribed to protect priority in the meantime.
Neither route is quick. Italian first-instance civil proceedings are measured in years rather than months, which is why the practical protections in the previous section matter more than the theoretical remedy. A buyer whose deposit is still held by the notaio has leverage. A buyer whose deposit is in the seller’s spent current account has a judgment to collect.
What is normal, and what is not
Deposits on Italian resales run between 10% and 20% of the price, with 10% the common case. Below that a seller has little reason to take the property off the market; much above it and the buyer is exposed for no additional benefit.
Two situations sit outside that range.
Off-plan purchases work on staged payments rather than a single deposit, and they carry their own statutory protections, including a compulsory bank or insurance guarantee covering sums paid before completion. That regime is separate from article 1385 and considerably more protective.
Auction and distressed sales have their own deposit rules set by the court or the procedure, and the ordinary caparra analysis does not apply.
Registering the compromesso, where the labels cost real money
The preliminary contract has to be registered with the Agenzia delle Entrate within 20 days of signature, and registration is not a formality: it is the moment the deposit label acquires a price.
Registration carries a fixed duty of EUR 200 plus stamp duty, and then a proportional charge that depends on what the money was called. A caparra confirmatoria is taxed at 0.50%. An acconto, being part payment of the price, is taxed at 3%. On a EUR 400,000 purchase with a 10% deposit that is EUR 200 against EUR 1,200, for the same transfer of the same sum on the same day.
Both amounts are creditable against the registration tax due at the deed, so on a completed purchase the difference largely washes out. Where the rest of the transaction stack lands is set out in the closing costs breakdown. It stops washing out if the sale collapses, and it is one more reason the wording is worth reading before signature rather than after.
The separate question: is the money safe at all
Deposit type decides what you can claim. Deposit safety decides whether there is anything to claim it from, and the two get conflated constantly.
A caparra paid directly to a seller sits in that seller’s bank account. If they are pursued by creditors, become insolvent, or simply spend it, your right to double the amount is a right against a person who cannot pay. The article gives you a claim, not a guarantee.
Two mechanisms fix this, both underused by foreign buyers.
Transcribe the compromesso under article 2645-bis. Beyond reserving your priority against anything registered against the seller afterwards, it puts the preliminary contract on the public record. The mechanics and the time limits are in the rogito and what protects a buyer.
Do not release the money to the seller. Sums can be held by the notaio, or by an escrow arrangement, rather than transferred on signature. Where a seller resists both, that resistance is information.
A third habit costs nothing: pay by traceable bank transfer to a named account matching the seller on the title, never in cash, never to an agent’s personal account, and never to an account in a country unconnected with the transaction. That last pattern is the standard shape of a property payment fraud, and deposits are the stage at which it happens.
What has to be true before you pay anything
The compromesso is where leverage ends. After it you are committed, and the questions below become expensive rather than merely inconvenient.
Title and charges. Who owns it on the register, and what is registered against it. The cadastre does not answer this, and a visura catastale is not proof of ownership.
Building compliance. Whether what stands there matches what was permitted, which is the single most common reason an Italian purchase collapses late.
The condominium position, where the property is in a building, including arrears that transfer with the flat.
Boundaries and access on rural property, where rights can have been acquired by long use.
The sequence and the documents are in due diligence before the compromesso, and the wider purchase order in buying property in Italy as a foreigner. What the notaio checks and what they do not is in the role of the notaio.
Weighing the deposit stage
What works in a buyer’s favour
- The law defaults to caparra confirmatoria, the most protective of the three, unless the contract says otherwise
- The double remedy needs no proof of loss, which makes it fast where a seller simply changes their mind
- The alternative route, performance or termination with full damages, stays open and is not capped by the deposit
- Off-plan buyers get a compulsory guarantee on sums paid before completion, which is stronger again
- 10% is a normal deposit, so a seller demanding 30% is signalling something
What works against you
- The remedy is a claim against a person, not a secured right, and an insolvent seller cannot pay double
- A single substituted word in the compromesso converts your remedy into the seller’s cheap exit
- Deposits are the point in the transaction where payment fraud is attempted
- After the compromesso your leverage is gone, so everything discovered later costs money rather than a renegotiation
- Recovering against a defaulting seller means Italian proceedings, in Italian, which is slow enough that many buyers settle for less
The proportionate approach is not to reduce the deposit. It is to check the word, keep the money out of the seller’s hands until completion, and finish the diligence before signing rather than after.
Sources
Italian Civil Code article 1385 on the caparra confirmatoria, including the injured party’s alternative right to seek performance or termination with damages, and article 1386 on the caparra penitenziale as consideration for an agreed right of withdrawal; article 2645-bis on the transcription of preliminary contracts. Checked 7 September 2026.
Frequently Asked Questions
A deposit given when a contract is concluded, governed by article 1385 of the Civil Code. If the buyer defaults the seller may withdraw and keep it. If the seller defaults the buyer may withdraw and demand double it back. On completion it is simply credited against the price.
Under a caparra confirmatoria, yes, that is the remedy the article provides. The alternative is to sue for performance or termination with full damages instead, which can be worth more where your losses exceed the deposit, but takes far longer.
An acconto is a simple part payment of the price with no penalty function. If the deal fails it is repaid, and nobody forfeits or doubles anything. A caparra carries a remedy built into it. Agents sometimes use the words interchangeably, and the contract wording is what governs.
The price of walking away rather than a penalty for breach. Under article 1386 it is the consideration for an agreed right of withdrawal: whoever withdraws loses what they gave or returns double what they received, and that is the end of it. No further damages are available.
Between 10% and 20% of the price on a resale, most often 10%. On off-plan purchases the staged payments are larger and governed by separate protections, including a compulsory bank guarantee on the sums paid before completion.
Not automatically. Money paid to a seller directly is exposed to that seller's creditors. The two ways to fix it are transcribing the preliminary contract under article 2645-bis, and having sums held by the notaio rather than released to the seller.
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