3508 Proposta Irrevocabile D'Acquisto.

Hi Brendon, buying in a foreign country can be very nerve wracking, we did it last year, with help from a translator. A quick search and I've found the following information. There are a number of people on the forum qualified to give you specific advice but until they get online hope this helps.

[url]http://www.tuscanyrealestate.co.uk/How_To_Buy/Purchase_Process/purchase_process.html[/url]

Paula

Brendon ,

go here

[url]http://www.notariato.it/eng/notaio/listing.aspx?lml_language_id=0&trs_id=492000[/url]

all info about legal procedure to buy in Italy

Ugo

[LEFT]The [B][I]proposta d’acquisto[/I][/B][I] is a formal and[/I] unilateral offer to buy a stated property at a stated price, although it does not mean you have secured the property at this stage. [/LEFT]

[FONT=Times New Roman][SIZE=2][FONT=Verdana]The general rule is that unless the [I]proposta is irrevocabile[/I], you may revoke your offer at any time until the vendor has accepted it. But once accepted, the principle of reciprocity kicks in and the offer then becomes a contract. An irrevocable offer ([I]proposta irrevocabile[/I]) is when you keep it open for a specified time in order to allow the vendor sufficient time to consider and accept your offer. If the vendor has not accepted after the specified time has expired, the offer is automatically revoked. [/FONT][/SIZE][/FONT]

Although it is not a legal requirement, you will be expected to pay a deposit ([I]deposito cauzionale[/I]) at this stage. However, your deposit still does not secure the property. You are essentially giving the vendor a fixed amount of time to take the property off the market and obtain an agreement to sell you the property. If another buyer approaches the vendor in the meantime, and makes a better offer, the vendor can potentially sell without your knowledge.

[FONT=Times New Roman][SIZE=2][FONT=Verdana]The property is not secure until you have signed the preliminary contract or [I]Compromesso.[/I] In the absence of the vendor’s formal acceptance, you are entitled to receive a refund of any deposit ([I]deposito cauzionale[/I]) paid but it is always wise to stipulate in the offer that your deposit is fully refundable as this enables you to get your money back should the deal fall through. After the vendor accepts your offer (this has to be in writing), the principle of reciprocity kicks in and your offer and deposit (now known as the [I]caparra[/I]) is subject to the provisions as per articles 1351, 1385 and 1386 of the Civil Code.[/FONT][/SIZE][/FONT]

[QUOTE=Charles Joseph]After the vendor accepts your offer (this has to be in writing), the principle of reciprocity kicks in and your offer and deposit (now known as the [I]caparra[/I]) is subject to the provisions as per articles 1351, 1385 and 1386 of the Civil Code.][/QUOTE]

Charles - does that mean that the vendor has to refund the deposit and the same amount again, in compensation, if they pull out of the sale?

[quote=Marc]Charles - does that mean that the vendor has to refund the deposit and the same amount again, in compensation, if they pull out of the sale?[/quote]

The double deposit rule only applies if the vendor pulls out for no legally valid reason after signng the compromesso. It applies to both the Caparra Confirmatoria (art 1385) and Caparra Penitenziale (art 1386).

If you pay a deposito cauzionale of say 5000 euro with your proposta and the vendor then pulls out, he/she has to refund it. But like most of these things, it is always best to state it clearly in the offer.

For new members and thicko's like me could you clarify all these different names! Where and what in the process they actually mean.

proposta d’acquisto
[B][/B]
compromesso

Caparra Confirmatoria

Caparra Penitenziale

Also is it not the compromesso that can be drawn up to include any stipulations required for the purchase. Which in some cases where the proposta and compromesso are within the same document this option could be lost.

[FONT=Arial][FONT=Verdana]The poposta is a formal offer to buy a property. It is not really a contract. It can still contain conditions but it is not the same as the compromesso. [/FONT][/FONT]

[FONT=Arial][FONT=Verdana]The Compromesso is the name given the prelminary contract (this is legally binding). I suppose it is like the exchange of contracts stage in the UK.[/FONT][/FONT]

[FONT=Arial][FONT=Verdana]The Atto is the final contract if you like. It is the doc produced by the Notaio for completion (otherwise known as the Rogito). [/FONT][/FONT]

[FONT=Arial][FONT=Verdana]Sometimes you can skip the first two and go straight to the Rogito. In other situations you can skip the proposta and use the compromesso. It depends on what the vendor wants to do. There appear to be no set rules.[/FONT][/FONT]

[B][FONT=Arial][FONT=Verdana]Caparra penitenziale [/FONT][/FONT][/B]

[FONT=Arial][FONT=Verdana]If the buyer fails or refuses to perform the contract without lawful reason he/she automatically forfeits the entire deposit. However, the buyer has, by law, the same route to compensation should the vendor pull out without lawful reason, who is under a legally binding obligation to pay the buyer double the original deposit paid.[/FONT][/FONT]

[B][FONT=Arial][FONT=Verdana]Caparra confermatoria [/FONT][/FONT][/B]

As with the caparra penitenziale, the buyer risks losing the entire deposit if he/she fails or refuses to perform the contract without lawful reason. If the vendor pulls out without lawful reason, he/she forfeits double the deposit. Additionally, in the event of a material breach, not only is the injured party entitled to recover damages as outlined above, he/she can seek a hearing to enforce the contract. For example, if the vendor sells to someone else, the buyer can seek additional damages equivalent to the value of the property itself. On the other hand, the vendor can force you to buy the property even if you decide pull out.

All of these contractual documents [B][U]should[/U][/B] be drafted and translated by someone who has knowledge of the law and care should be taken before signing anything to ensure that there are no surprises. Yesterday I saw a compromesso that has totally mislead the buyer because the English version was not a faithful translation of the original and omitted some very important words in one of the clauses...that the property was encumbered by an outstanding mortgage. The buyers signed the document without even knowing what they were letting themselves into.

Thanks, thought it would help to make it clear and it has. :)

I also saw another case where a buyer of a high value (500K +) property in southern Italy has not been given all the facts.

The Atto they signed was in Italian and wasn’t even translated into English. What is even more surprising is that the contract appears to be [I]vincolato da un accollo[/I]. Without boring you with the technical aspects, [I]Accollo[/I] is a juridical doctrine that essentially places the burden of liability on a third party to assume responsibility for any debts (such as an outstanding mortgage on a property).

This couple have unwittingly signed the document and essentially placed themselves into a situation where they are now liable for the hefty mortgage that is outstanding on the property they have just purchased.

It appears that both the agent and the Notary (in particular) notarising the transaction didn’t:

1)[SIZE=2][FONT=Verdana] Arrange for a translation[/FONT][/SIZE]
2)[SIZE=2][FONT=Verdana] Warn the buyer of this high risk situation[/FONT][/SIZE]

It just goes to show that anyone can get caught out. All I can say is people [U][B]do be very careful[/B][/U] and don't sign anything until you are absolutely sure! I can't overemphasise the importance of this point.

[QUOTE=brendon collins]I would like to know the Legalities of Proposta, Is this a legal document? and what if this has been signed by all parties and now one of the parties wants to walk away from the deal, has anyone knowledge of this? Brendon.[/QUOTE]

I will not add more, because Charles, as usual, has been very competent.
Just some considerations about what could happen if the parties wants to walk away from the deal [B][U]after[/U][/B] signing the contract.
If you sign a proposta and the vendor accepts it, the contract is closed and vendor and buyer are both bound, so if one of them decides to not respect the agreement there are different routes the other part can follow:
Let's suppose that the one who walks away is the vendor, the buyer can:
- take action against him for the damages. these includes not only the double of the caparra payed, but further damages too
- take action against him asking the judge to transfer him the property (art. 2932 codice civile). In this case the buyer will pay the whole price (or the part nedded) only at the moment of the judge's decision.

Inadequate translation

Your references to inadeqaute, at the least, more likely deliberately misleading translations is quite shocking.

Would a purchaser be considered to have legal grounds for extracting themselves from such a contract in Italian law because of a seriously incorrect translation into English, in your opinion?

[quote=Relaxed]Inadequate translation

Your references to inadeqaute, at the least, more likely deliberately misleading translations is quite shocking.

Would a purchaser be considered to have legal grounds for extracting themselves from such a contract in Italian law because of a seriously incorrect translation into English, in your opinion?[/quote]

I can't comment on the specifics as I don't want to be in breach of any confidentialty...but the buyers in both cases cited are instructing solicitors at the moment.

Article 54 of the Legge Notarile does state that Atti Notarili must be written in Italian and that a procedure exists for non-Italian buyers who don't understand the language.

It is, as you say, shocking to note the omission of very important information from a contract. Hard to say whether it is deliberate or just down to plain incomptence. The issue is that both contracts have been signed (which is construed as acceptance) and that ignorance is not really accepted in a court of law.

Would be interested in Notaio's views.

Yes, it would be interesting to hear from notaio. In my experience the notaios are very precise about translations, and insist on witnesses able to understand both the original and the translation of the atto, (at least where the non Italian speaking purchaser is present, rather than having granted a procura): but often a notaio is not involved at the compromesso stage, and the compromeso is - as you have said - a binding contract. Interesting.

[quote=Relaxed]Yes, it would be interesting to hear from notaio. In my experience the notaios are very precise about translations, and insist on witnesses able to understand both the original and the translation of the atto, (at least where the non Italian speaking purchaser is present, rather than having granted a procura): but often a notaio is not involved at the compromesso stage, and the compromeso is - as you have said - a binding contract. Interesting.[/quote]

The second case is an Atto with no English translation and the Accollo so it will be even more interesting.

Summarising what has been said to this point, it seems to me that a 'proposta irrevocabile d'acquisito' is, to all intents and purposes, a Compromesso, by another name. The legal ramifications ar the same, the only difference is that the deposit is smaller.

Since people are often warned here that they should never enter into a Compromesso without doing surveys and getting legal advice first, couldn't it also be said that they should never enter into a Proposta without doing the same?

[LEFT][FONT=Arial][FONT=Verdana]Once the proposta has been accepted it creates an intention to be legally bound. The doc should at least contain the following (which is what the compromesso would contain): [/FONT][/FONT]
[FONT=Arial][FONT=Verdana][/FONT][/FONT][/LEFT]
[LIST]
[*][LEFT][FONT=Arial][FONT=Verdana]The purchasers/vendors personal details (name, date of birth, place of birth, codice fiscale and place of residence) [/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Verdana][FONT=Arial][/FONT][/FONT][FONT=Arial][FONT=Verdana]General conditions[/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]The Title details of the subject property [/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]A description of the subject property including Land Registry data and a reference map of the plot.[/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]The total purchase price of the property with the different instalments due to be paid.[/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][FONT=Verdana]What happens when either party is in breach of contract. Also included here are the circumstances in which the deposit becomes forfeitable. [/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]Declarations and disclosures from the vendor concerning the subject property[/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]Any restrictions in exercising the rights over the property [/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][/FONT][FONT=Arial][FONT=Verdana]Any special conditions that are specific to the transaction [/FONT][/FONT][/LEFT]
[*][LEFT][FONT=Arial][FONT=Verdana]The completion date[/FONT][/FONT][/LEFT]
[/LIST][LEFT][FONT=Arial][FONT=Verdana]Once you have found the property for you, it is always best to obtain a survey or legal advice before committing yourself and signing anything. [/FONT][/FONT]
[FONT=Arial][FONT=Verdana] [/FONT][/FONT]
[FONT=Arial][FONT=Verdana] [/FONT][/FONT][/LEFT]

Charles and notaio: just to clarify - is the main difference the wording in the proposta: i.e. the difference between a caparra (penitenziale or confirmatoria) and a deposito cauzionale, rather than the difference between a proposta and a compromesso (also known as contratto preliminare)?
Therefore is it possible to have a proposta di acquisto with a caparra instead of a deposito, and is it also possible to prepare a proposta that is essentially identical to a preliminare/compromesso, drafted in a way that it effectively "becomes" the preliminare on payment of a caparra (first or second)? Hope that makes sense.

As regards poor/inadequate/misleading translations, a significant problem is, I think, lack of any formal regulations in Italy over who can call themselves a translator. Anyone can set themselves up as a translator, regardless of qualifications, training, experience or (most importantly) insurance. This is due to change soon, as plans are underway to establish an albo dei traduttori but only Italian citizens and residents will be regulated by it and, from what I have seen of the requirements, not very much protection or assurance will be offered. The main point of it seems to be to set professional tariffs and "protect" the profession. The key point I think that if you are going to use a translator, make sure he or she suitably qualified and experienced in Italian property law with the appropriate insurance and/or (preferably and) have their work overseen by a legal professional. Or just skip the translator and go with the legal professional, as many have suggested.

[QUOTE=gardahomes]Charles and notaio: just to clarify - is the main difference the wording in the proposta: i.e. the difference between a caparra (penitenziale or confirmatoria) and a deposito cauzionale, rather than the difference between a proposta and a compromesso (also known as contratto preliminare)?
Therefore is it possible to have a proposta di acquisto with a caparra instead of a deposito, and is it also possible to prepare a proposta that is essentially identical to a preliminare/compromesso, drafted in a way that it effectively "becomes" the preliminare on payment of a caparra (first or second)? Hope that makes sense.

As regards poor/inadequate/misleading translations, a significant problem is, I think, lack of any formal regulations in Italy over who can call themselves a translator. Anyone can set themselves up as a translator, regardless of qualifications, training, experience or (most importantly) insurance. This is due to change soon, as plans are underway to establish an albo dei traduttori but only Italian citizens and residents will be regulated by it and, from what I have seen of the requirements, not very much protection or assurance will be offered. The main point of it seems to be to set professional tariffs and "protect" the profession. The key point I think that if you are going to use a translator, make sure he or she suitably qualified and experienced in Italian property law with the appropriate insurance and/or (preferably and) have their work overseen by a legal professional. Or just skip the translator and go with the legal professional, as many have suggested.[/QUOTE]

I really love this forum because forces me to be on the coustomers' side explaining things that normally are considered done and usual.
Many of the technical and legal informations have been already given by Charles and you can find them in the notariato's website at the address Ugo gave before, written in better english than mine.
Anyway, the difference between deposito and caparra may be merely apparent, because what is called deposito is instead a real caparra: much it depends on how the contract or the proposal has been written.
The habit to have a deposito was born with the spreading of real estate agencies.
The agents ask the potential buyers to leave a "deposito" (normally a chek of minumum amount that will not be cashed in) when they make theyr proposal, in order to demonstrate they're acting seriously.
The function of this "deposito" is essentially a warrantee, it is as if the buyer said:
I'm interested in this purchase, I'm a serius person and even if I do not know if the vendor will accept my proposal, here's a chek of mine.
I repeat, all this doesn't exist in the civil code, it is a creation of the agents world.
It doesn't mean it hasn't legal effects, but not one of these classified for the caparra in the civil code.
If something goes wrong, the case law says that we're in the field of pre-contractual responsability: it means that there's not a contract but a mere responsability for the good faith duty that all the partie must have during the negotiation.
Caparra is different: it is a specific and legally described instiute, as sterssed in the previous posts
Respounding to the second part of your question, my answers are yes.
It is possible to have a deposito that become a caparra: the easiest way is to write it in the proposta.
Moreover it is possible to have a proposta turning into a preliminare.
Once again, the easiest way is to write it in the proposta.
Of course the proposta must contain all the elements that a preliminare must have: in this case it should be enough a clause saying something like
"with the acceptance of this proposal the parties agree on the closing of a "contratto preliminare" a therefore they're both bound to the the respect of all the clauses here written"
I remind you that the acceptance must be written.
An acceptance containing new clauses is considered as a new proposal and therefore the ping-pong can goes on until an agreement is reached.

About the translation of contracts, I do not know what happened with Charles'case.
The legge notarile imposes specific formalities when the contract (atto pubblico) is signed by a foreigners that doesn't understand italian:
2 witnesses and one of them must understand the foreign language
a translator, that acts under the responsability of law (even criminal responsability in case of deliberately wrong translation)
A translator isn't necessarily if the notary knows the foreign language, but in this case he\she must write the contract in the 2 languages (italian and foreign).
What if the notary doesn't follow the law ?
there's a huge responsability, that might lead until the "banning" of the notary from the professional activity.

Sarah

In having read the clauses contained in the preliminary contract that I was shown in London yesterday, I do not believe that it was translated by a professional interpreter. The clause in Italian was unequivocal. The property was encumbered by an outstanding mortgage (the amount was indicated), yet the English translation in the adjacent column completely omitted to mention this.

The other doc was an atto in Italian. It could be, as Notaio mentions, that the notary was able to speak English, but there is no translated version of the contract and why would the buyer sign the Atto if he knew that he was going to be held liable for a six figure debt?