Buying a house is usually a step-by-step process. It often begins with a written promise, continues with the payment of a deposit, and ends in front of the notary with the transfer of ownership. However, it is not uncommon to realise—sometimes only after signing—that what is written in the final deed does not perfectly match what had been agreed months earlier in the preliminary contract.
This raises a key question: which contract prevails if there are discrepancies between the preliminary agreement and the deed of sale? The answer, confirmed by consistent case law, is that the final contract almost always prevails. It becomes the only true source of rights and obligations between the parties, effectively replacing everything agreed before.
Does the deed of sale cancel the preliminary agreement?
The signing of the final deed marks a decisive turning point. Once the final contract is executed, it becomes the sole reference for regulating the relationship between buyer and seller.
The preliminary contract (commonly called a “compromise”) has a preparatory role: it binds the parties to conclude the final agreement. Once that goal is achieved, it is considered fulfilled and therefore superseded.
In practical terms, this means that earlier promises no longer have value if they are not included in the final deed. For example, if the preliminary agreement stated that the house was sold with air conditioners, but the final deed makes no mention of them, the buyer cannot later claim them. What counts is only what is written in the notarised contract.
If the terms change, which agreement applies?
Differences between the preliminary agreement and the final deed are not treated as errors, but as conscious choices made by the parties.
If the final contract contains different terms—whether relating to price, conditions, or specific details—it is assumed that both parties agreed to modify their original arrangement. There is no need for a separate document confirming the change: the signature on the final deed is enough.
In case of a dispute, the judge will rely exclusively on the final contract. The preliminary agreement is no longer used to interpret the parties’ intentions.
A typical situation involves the price: if the preliminary contract indicated €200,000 but the final deed states €190,000, the lower amount is the only valid one. The seller cannot later claim the €10,000 difference by referring back to the earlier agreement.
Can the preliminary clauses still remain valid?
There is only one way to preserve clauses from the preliminary agreement: they must be expressly confirmed in the final deed.
The law assumes that the final contract replaces everything that came before. This presumption can only be overcome if the parties clearly state, in writing, that certain provisions from the preliminary agreement are intended to remain valid.
Without this explicit reference, silence is interpreted as a decision to abandon the earlier terms. The final deed is not a simple repetition of the preliminary contract—it is a new and autonomous agreement.
For instance, if the buyer wants the seller to leave a custom kitchen that was promised in the preliminary agreement, this must be specifically written into the final deed. Without that clause, the seller is not obliged to leave it.
Who must prove that earlier agreements still apply?
If a dispute arises, the burden of proof lies entirely with the person claiming that a clause from the preliminary agreement is still effective.
Since real estate transactions require written evidence, this proof must be documented. It is not enough to rely on verbal understandings. The party must demonstrate that, at the time of signing the final deed, there was a written agreement confirming that the clause would survive.
If no such document exists, the judge will consider only the final deed as binding.
A practical example: if the buyer claims that the garden should measure 100 square meters as stated in the preliminary agreement, but the final deed transfers only 80, they must prove—through a written document signed at the same time—that the seller acknowledged this discrepancy or agreed to compensate it. Without that proof, the claim will be rejected.
VGS Family Lawyers is a law firm that offers assistance to English-speaking clients with interests in Italy. In case you need assistance, please write to: info@vgslawyers.com