Preliminary preliminary agreement and breach: between earnest money and contractual liability

Comment by Avv. Donatella Conicella – Head of the Civil Law Department of Legal Aid

Sentence n. 226/2025 of the Court of Palermo, issued by Dr. Sara Monteleone, addresses a particularly relevant issue regarding earnest money (caparra confirmatoria) in the context of a real estate contract characterized by a progressive formation of the contractual bond (so-called preliminary preliminary agreement).

1. RECONSTRUCTION OF THE CONTRACTUAL RELATIONSHIP

The parties had signed a purchase proposal (23.6.2021) accepted by both co-owners of the property, with the provision of:

• a sale price of 580,000.00 euros;
• the immediate payment of 20,000.00 euros as earnest money (caparra confirmatoria);
• the subsequent stipulation of a preliminary contract by 30.9.2021;
• the final contract by 31.1.2022.

2. THE PROBLEM THAT AROSE

The promising seller (Adamo) repeatedly hindered the stipulation of the preliminary contract, raising issues related to leasing financing and the need for building modifications (a plasterboard wall) for the change of intended use. Despite expressing consent to the draft prepared by the Notary, she repeatedly evaded meetings scheduled for the stipulation.

3. JUDICIAL LEGAL ASSESSMENT

The Court:

• recognizes the validity of the multi-phase contractual structure, referring to legitimate jurisprudence (Cass. S.U. 4628/2015 and Cass. 12527/2018);
• qualifies the accepted proposal as a preliminary preliminary agreement, subject to contractual good faith;
• finds a serious breach by the promising seller, for having initially expressed consent to the stipulation, then pretextually raised obstacles and omitted any useful collaboration for the conclusion of the agreement.

4. EARNEST MONEY (CAPARRA CONFIRMATORIA) AND WITHDRAWAL

In application of art. 1385, co. 2, c.c., the Court recognizes the right of the purchasing party (Ro.Gi. S.r.l.) to withdraw from the contract and to obtain double the earnest money (caparra) paid (20,000.00 euros), even though the check had not been cashed by the seller. According to the orientation of the Cassation (sent. 19801/2021), the effect of the earnest money (caparra) is perfected with the delivery and availability of the title, even if not collected.

5. SYSTEMIC OBSERVATIONS

The sentence exemplarily highlights:

• contractual good faith as a criterion for judging breach;
• the functional role of earnest money (caparra confirmatoria) as a tool for compensatory self-protection;
• the inapplicability of the notice to perform (diffida ad adempiere) ex art. 1454 c.c. in the presence of subsequent behaviors incompatible with the expressed resolutive will.

CONCLUSIONS

The decision is in line with the most authoritative legitimate jurisprudence and constitutes a well-reasoned example of the application of the regime of earnest money (caparra confirmatoria) and the discipline of contracts with progressive formation. It reinforces the centrality of the principle of fairness and good faith even in contractual relationships not yet perfected in their definitive form.