Perhaps, days later, the interested party will call me saying that he thought well and gave up on buying my property, and his search for a new buyer starts from scratch. Therefore, with the experience I have in the real estate market (over 12 years) I advise you to: do not withdraw the property from sale when a situation like this happens, but there is an exception! The exception is when you and this potential buyer agree to ARRAS or BUSINESS SIGNAL . It is important to mention that it is possible that a contract will be signed exclusively for this purpose: to secure business .
Having said all of the above, I'm going to explain to you now what ARRAS is all about, and show you the cool prediction! Yes, our Brazilian Civil Code even took care of this situation, so see:
ARRAS or SINAL is a very common institute in real estate purchase and sale negotiations. It is provided for in articles 417 to 420 of the Brazilian Civil Code , and aims to guarantee that a deal (usually a promise) will be closed.
Art. 417 CC:
Art. 417. If, at the time of conclusion of the contract, one party gives to the other, as arras, money or other movable property, the arras, in case of execution, shall be refunded or computed in the due installment, if of the same. gender of the main one.
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As the article mentioned above, ARRAS can be paid through:
- MONEY – most common form in real estate purchase and sale contracts; or
- other MOBILE PROPERTY – that is, it is possible to use a (eg) car like Arras.
There are 2 types of Arras:
- CONFIRMATORY ARRAS;
- PENITENTIAL ARRAS.
CONFIRMATORY ARRAS :
It is provided for and regulated in articles 418 and 419 of the Civil Code :
Art. 418. If the party that gave the arras does not execute the contract, the other may have it undone, retaining them ; if the non-execution is from the one who received the arras, the person who gave them may have the contract undone, and demand its return plus the equivalent , with monetary restatement according to regularly established official rates, interest and attorney's fees. Art. 419. The innocent party may ask for additional indemnity, if it proves greater damage , the arras being a minimum fee. The innocent party may also demand the execution of the contract, with the losses and damages, with the arras being the minimum indemnity.
Then observe the following characteristics of the Confirmatory Arras :
- Legal Prediction: Arts. 418 and 419 of the Civil Code;
- It does not admit repentance of the contract;
- Admits supplementary indemnity;
PENITENTIAL ARRAS
It is provided for and regulated in article 420 of the Civil Code :
Art. 420. If the contract stipulates the right of repentance for any of the parties , the arras or signal shall have a solely indemnifying function . In this case, whoever gave them will lose them to the benefit of the other party; and whoever received them will return them, plus the equivalent. In both cases there will be no right to supplementary indemnity.
Then observe the following characteristics of Penitential Arras:
- Legal Provision: Art. 420 of the Civil Code;
- Admits regret in the contract;
- Does not admit additional indemnity.
And what is the main difference between ARRAS?
Note that the biggest difference between the Confirmatory Arras and the Penitential Arras is whether or not to allow an indemnity beyond the fixed amount as Arras .
To fix: The main difference between the two ARRAS options is regarding the complementary indemnity, being:
- Confirmatory Arras : Admits additional indemnity in addition to payment of Arras ;
- Penitential Arras : Does not admit additional indemnity in addition to payment of the Arras .
