A signed promise to sell is not a prison. Contrary to popular belief, there are several exit routes after signing. The most obvious is that the buyer has 10 days to withdraw without justification. Another possibility is unfulfilled suspensive conditions, which automatically release both parties. But be careful: each mechanism follows strict rules. Missing a deadline by one day, a poorly drafted formal notice, or an implicit waiver of suspensive conditions can turn a legitimate exit into a wrongful breach—sometimes with damages at stake.
Suspensive conditions: an automatic release mechanism
Suspensive conditions are the ultimate legal shield. For international buyers unfamiliar with French law, let us clarify: a suspensive condition is a clause that makes the final validity of the sale contingent upon the occurrence of a future, uncertain event. In other words, the sale legally exists only if that condition is met.
If it fails, the promise to sell is automatically canceled. No indemnity, no penalty, no need for justification. Article 1304-6 of the Civil Code establishes this principle: the failure of a condition retroactively releases the parties as if the commitment had never existed.
Common conditions cover three areas:
- Financing remains the most frequent: the buyer typically has 45 days to secure their mortgage loan.
- An administrative condition: for example, obtaining an operational land-use certificate or another specific authorization.
- Technical conditions: these often pertain to the absence of prohibitive easements or the compliance of inspections.
This protective mechanism is a hallmark of French law. It differs fundamentally from Anglo-Saxon or Middle Eastern systems, where the initial commitment is harder to revoke.
Practical illustration: a buyer signs a promise for a townhouse in Neuilly. The price is set at €5.2 million following a rigorous property appraisal, conditional on obtaining a €3.5 million loan. After two bank refusals, he negotiates directly with the seller for a payment extension.
This simple discussion was interpreted by the courts as a waiver of the suspensive condition. The buyer, believing he was preserving his options, actually deprived himself of his main protection. The promise became firm and final!
Is it necessary to notify the cancellation of the promise to sell when a suspensive condition is not met?
Indeed, there is a certain formality to observe. The buyer must inform the seller by registered letter with acknowledgment of receipt within the deadline specified in the contract. This is generally five days. Supporting documents (individual loan refusal letters, bank correspondence) must be attached. Caution: a simple email or phone call is not sufficient.
Also remember that a suspensive condition is not presumed. It must be drafted with precision, objectivity, and verifiability in mind. Vague wording such as “subject to my advisor’s approval” or “if the property suits my project” will be systematically rejected by judges.
This rigor applies equally to the promise and to the preliminary sales agreement. Both forms ofpre-contract follow the same legal principles.
The cooling-off period: a right specific to the buyer
As you surely know, the SRU law of December 13, 2000 grants the individual buyer a 10-day cooling-off period. This is a withdrawal right exercisable without reason or penalty, codified in Article L.271-1 of the Construction Code. The seller has no equivalent period.
This period runs from the day after the delivery of the registered letter that notifies the promise to sell. To be precise, the 10-day count excludes the first day but includes the last. If the tenth day falls on a Saturday, Sunday, or public holiday, practice dictates that the deadline is extended to the next working day.
Withdrawal is exercised by registered letter with acknowledgment of receipt, addressed to the notary or the real estate agent holding the file. Sending it directly to the seller remains valid but complicates proof. The buyer normally recovers their deposit within 21 days.
Practical illustration: a promise to sell is notified on Friday, May 3. The legal deadline thus begins on Saturday, May 4, and expires at midnight on Monday, May 13. A buyer sends their withdrawal on Tuesday, May 14, believing that the two weekends extend the deadline. Mistake: non-working days count in the calculation. Their late withdrawal constitutes a wrongful breach.
Points of vigilance:
- Keep the notice of first presentation of the initial registered letter
- Mail the withdrawal at the latest on the penultimate day of the deadline
- Use clear wording: “I withdraw from the promise signed on [date]”
- No need to justify your decision, or you risk weakening your démarche
Buyer default
Once the cooling-off period has passed, and if no suspensive condition is met, the next step is clear: the buyer is obligated to purchase. However, defaults do occur. This gives the seller two options: force the buyer to complete the purchase or keep the deposit.
The mandatory prerequisite to “specific performance” is to issue a formal notice to the buyer. In other words, the seller formally demands that the buyer sign the authentic deed of sale within a reasonable timeframe. Usually, this means giving them 15 days. This summons must be sent by bailiff’s writ or registered letter with acknowledgment of receipt.
Above all, the letter must specify a signing date with the notary. You must indeed respect the time frame between the preliminary agreement and the deed of sale usually provided.
Practical illustration: a château in Burgundy is under a promise for €3.2 million. The buyer, a foreign investor, ceases communication after the conditions are lifted. The seller follows the procedure meticulously: formal notice by bailiff setting a signing date of June 15, bailiff’s certificate of default drawn on the appointed day, and notification that the deposit of €320,000 is forfeited.
This procedural rigor allows the seller to keep the deposit and immediately relist the property among the real estate listings in Paris and Province on their network.
Defects of consent: a more complex judicial cancellation
To protect buyers and sellers, the law also provides for situations where “defects of consent” are discovered afterward. Serious defects that would lead the buyer to cancel the sale. Here are typical scenarios that open this more contentious avenue:
- Error regarding essential qualities remains the most frequent case: the error concerns an element that had a decisive influence on the buyer’s decision. Ex.: actual surface area more than 5% below the advertised figure, impossibility of carrying out the planned real estate project, existence of serious hidden easements.
- Fraud (dol) implies a fraudulent maneuver (codified in Articles 1130 and following of the Civil Code): the willful concealment of a defect, a false declaration regarding rental income, misleading photographs. The burden of proof lies with the claimant, who must demonstrate intent to deceive.
- Economic duress (recognized since 2016): it protects the seller against abuse of dependency. It is not uncommon for a seller in financial distress to accept a derisory price.
An action for nullity must be brought within five years of discovering the hidden defect. In practice, the various costs (expert fees, lawyer’s fees, bailiff’s fees) total around €15,000 to €30,000.
Practical illustration: a Parisian income property is sold for €8.5 million with an advertised yield of 4.2%. After the sale, the buyer discovers that three of the seven commercial leases are fictitious, created with the seller’s shell companies. The rents actually represent only 60% of those declared.
The court finds fraud (dol): production of fake leases, false attestations, active concealment. The promise is annulled, and the seller is condemned to pay damages for the loss suffered.
Anticipate to better protect yourself
Experience shows that you must always negotiate suspensive conditions with precision. Each condition must be objective, verifiable, and time-limited.
Favor wording that leaves no room for interpretation: “obtaining a loan of €X at a maximum rate of Y% over Z years” rather than “satisfactory financing.” Also specify the notification methods and required supporting documents.
Keep all communications, registered letters, and delivery notices. If you suspect a problem, communicate exclusively in writing, with hand delivery and acknowledgment of receipt. This traceability will serve both to prove your good faith and to characterize the other party’s fault.
Finally, act within deadlines with rigor. Real estate law punishes delays harshly. Use calendar reminders for each deadline. In case of doubt about a deadline, err on the side of early action. Better a premature démarche than a definitive time bar!