Boutique Agency
30 August 2026
The offer has been accepted. Buyer and seller have agreed on the price and the property is off the market. Then comes one of the most important moments in the purchase process: signing the promesse de vente or compromis de vente.
For many buyers, this feels like the administrative confirmation of a decision that has essentially already been made. The property has been viewed, the price has been negotiated and the notaire will now take care of the rest.
But it is precisely in the avant-contrat that the rules governing the purchase are laid down. Not only the price and the date on which the parties ultimately expect to go to the notaire, but also the conditions under which the sale will proceed, the deadlines the parties must comply with and the circumstances in which the buyer ultimately does not have to complete the purchase.
And it is precisely here that a few lines of text can make a major difference later on.
Promesse or compromis: what is the difference?
The avant-contrat can take different legal forms. The two main ones are the promesse unilatérale de vente and the compromis de vente, also known as the promesse synallagmatique de vente.
With a promesse unilatérale de vente, the seller – the promettant – undertakes, for an agreed period, to sell the property to the buyer at the agreed price and under the agreed conditions. During that period, the buyer – the bénéficiaire – receives the exclusive right to proceed with the purchase. Legally, the buyer is granted an option.
With a compromis de vente, the structure is different. In principle, both buyer and seller undertake to buy and sell respectively.
Both forms exist alongside each other. In current real estate practice in the South of France, the promesse unilatérale de vente is frequently used, but a buyer may also be presented with a compromis de vente.
It is therefore important to know which form is being used.
The difference is certainly not merely theoretical for the buyer
The legal distinction can have major practical consequences if a buyer still wishes to withdraw from the purchase after the statutory cooling-off period has expired.
With a compromis de vente, the buyer has, in principle, committed to buying. Once the statutory cooling-off period has expired and there is no valid condition suspensive or other statutory or contractual ground for withdrawing from the purchase, the buyer cannot simply decide that he no longer wants the property.
In principle, the seller can demand completion of the sale and seek to enforce it through the courts. Depending on the agreement and the circumstances, damages may also, or alternatively, be claimed.
With a promesse unilatérale de vente, the position is different. The seller has undertaken to sell during the agreed period, while the buyer has been granted an option.
If, after the statutory cooling-off period, the buyer ultimately decides not to exercise that option, without being able to rely, for example, on an unfulfilled condition suspensive, the consequence is not, in principle, that the buyer can be forced to purchase the property after all.
But that decision is certainly not without cost.
With a promesse unilatérale, an indemnité d'immobilisation – a type of reservation fee – is generally agreed. If the buyer ultimately does not exercise the option without a statutory or contractual way out being available, that amount may remain payable to the seller.
This also makes clear why the distinction between the two agreements matters:
With a compromis, the buyer has in principle committed to buying; with a promesse, the buyer has an option to buy, but failing to exercise that option can have significant financial consequences.
A promesse is therefore certainly not a non-binding way of holding a property for a few months.
From this point onwards, the two agreements have so much in common that we can refer to both as the avant-contrat.
The avant-contrat determines much more than the purchase price
An avant-contrat can be an extensive document.
Naturally, it contains the identity of the buyer and seller, the description of the property and the purchase price. But it goes much further than that.
For example, it specifies exactly which lots are being sold. In the case of an apartment, this may include not only the apartment itself but also a cellar, garage, parking space or other separate lots. It contains information about easements, the legal and planning status of the property, the technical surveys and – in the case of an apartment – the copropriété.
It also determines the period within which the final acte authentique must be executed and which conditions must first be fulfilled.
The avant-contrat is therefore much more than a confirmation of the agreed price. In fact, it is the legal roadmap for the remainder of the transaction.
The most important protection: conditions suspensives
One of the elements requiring particular attention is the conditions suspensives.
These can provide that the transaction will only proceed if a particular condition is fulfilled.
The best-known example is financing. If a buyer requires a loan for the purchase, the avant-contrat sets out the conditions under which that financing must be obtained. It may, for example, specify the amount to be borrowed, the maximum interest rate, the term of the loan and the period within which financing must be obtained. This may appear to be a technical part of the document, but the precise wording is important.
A buyer who, according to the avant-contrat, is required to apply for financing of €700,000 cannot simply submit only an application for financing of €900,000, receive a refusal and then claim that the condition suspensive has not been fulfilled.
The conditions therefore determine not only whether there is a financing condition, but also what the buyer must do in order to rely on it.
Financing is far from the only possible condition
This is precisely where a standard avant-contrat can sometimes become risky.
Not every purchase is standard.
A buyer may, for example, only want to buy a villa if a swimming pool can be built. Another buyer may want to extend the existing house. Two adjoining apartments may need to be joined together. Permission may be required to enlarge a window. Or a buyer may only want an apartment if permission can be obtained for a particular renovation.
If such a possibility is essential to the purchase, the time to investigate how this should be dealt with legally is before signing the avant-contrat. Sometimes sufficient certainty can be obtained beforehand. In other cases, a specific condition suspensive may be necessary. A dangerous phrase is:
We will look into that after the purchase.
Because if that possibility was essential to the buyer but was not included anywhere as a condition, once the cooling-off period has expired it may turn out that the purchase will proceed even though the plans for which the property was bought cannot be carried out.
Do not only look at what is written
When reviewing an avant-contrat, attention understandably often focuses on mistakes.
Is the name correct? Is the purchase price correct? Is the parking space included? Is the surface area correct?
But what is not written is at least as important.
What does the buyer intend to do with the property? What assumptions were made during the viewings? Are there circumstances without which the property would not actually be of interest? Is permission still required for anything? Were oral assurances given on which the buyer partly based the decision to purchase?
A missing condition is far less noticeable than an incorrect house number. Legally, however, that missing sentence may ultimately be much more important.
Pay close attention to the deadlines
An avant-contrat usually contains several dates and deadlines.
There may be a deadline for financing, for other conditions suspensives, for exercising an option and for signing the acte authentique.
Those deadlines do not all have the same legal effect.
The date specified for the acte authentique also deserves attention. If, for example, the final deed is to be signed no later than 15 November and an administrative delay means that this is not possible, this does not automatically mean in every agreement that the sale is cancelled on 16 November.
But neither can one party independently decide that the deed will simply be signed three weeks later. If a deadline needs to be extended, the parties must agree to that extension.
In practice, it is advisable to record that agreement clearly in writing, for example in an avenant or by means of written confirmation from the notaires.
There is French case law in which the conduct of the parties showed that, after a deadline had expired, they continued jointly to perform the agreement. But for either buyer or seller to rely on that is unnecessarily risky.
A written extension avoids subsequent disputes about what the parties apparently intended.
What about the deposit?
The terminology differs somewhat depending on the type of avant-contrat. With a promesse unilatérale de vente, the term indemnité d'immobilisation is generally used. With other structures, for example, there may be a dépôt de garantie.
For the buyer, however, another practical question is at least as important: where is the money deposited? The safest approach is simple:
Deposit the amount into the notaire's client account.
The notaire holds the amount during the transaction. If the sale proceeds, it is deducted from the purchase price. If it has to be repaid in accordance with the law and the provisions of the avant-contrat, the notaire returns it.
Under certain legal conditions, an authorised French estate agent may also receive funds as séquestre. That does not mean, however, that a buyer has to choose this option.
The notaire is independently involved in the legal completion of the transaction. This makes the notaire's client account the appropriate place for the buyer to deposit funds relating to the purchase.
Who actually drafts the avant-contrat?
Many buyers assume that a promesse or compromis de vente is always drafted by a notaire. That is not necessarily the case.
An appropriately authorised French estate agent can draft a private avant-contrat. Legally, this can therefore result in a perfectly valid contract.
But the fact that something is permitted does not automatically mean that it is advisable in every situation. An estate agent specialises in brokering real estate transactions. The agent knows the property, is in contact with buyer and seller and often has model agreements available for preparing an avant-contrat.
A notaire has a different role. The notaire looks at the legal structure of the transaction, the ownership situation, special conditions and the consequences of the agreements made by the parties.
And that is precisely where the risk of a standard avant-contrat lies.
The danger often lies in what is not there
Suppose an estate agent uses a standard model in which the buyer, seller, purchase price, financing and completion date are all correctly entered.
On paper, everything may be correct. But what if the property has a swimming pool for which the planning permission is unclear? What if an extension was never properly declared? What if the buyer only wants to purchase if a new extension proves possible?
What if there is a complicated easement? What if the buyer wishes to purchase through an SCI? What if a parcel of land has a different legal or planning status than expected? What if major works are planned within the copropriété of an apartment building? Or what if a condition suspensive simply does not properly reflect what this particular buyer needs?
There does not have to be an obvious error in the document. The problem may be precisely that the necessary provision is missing. After all, a standard model does not know which circumstances are decisive for this particular buyer.
This does not mean that having an avant-contrat drafted by an estate agent is necessarily wrong. But the more complex the transaction becomes, the more important it is for someone with the appropriate legal expertise to examine the file before it is signed.
The notaire is better involved before rather than after signing
It is therefore advisable not to involve the notaire only once the avant-contrat has already been signed.
Before signing, the contents can still be amended relatively easily. Additional questions can be asked, documents can be requested and specific conditions suspensives can be included. A particular issue concerning the property can be investigated before the buyer becomes further committed to the transaction.
After signing, the position is different. A notaire can of course still carry out investigations and identify problems. But a condition that is important to the buyer and was not included in the original agreement cannot simply be added unilaterally. The seller's agreement will then be required again. The idea that “the estate agent drafts the avant-contrat and the notaire will look at it later” therefore effectively reverses the correct order.
Can the buyer choose their own notaire?
Yes.
The buyer does not automatically have to use only the seller's notaire. In France, the buyer and seller may each have their own notaire. The notaires then work together on the same transaction. In principle, this does not mean that the buyer pays notarial fees twice; the relevant remuneration is divided between the notaires involved in accordance with the applicable rules.
Particularly in an international purchase, having one's own notaire can be reassuring. Not because the seller's notaire should represent the seller's interests – the French notaire occupies an independent position – but because there is a notaire involved in the file from the outset with whom the buyer has direct contact.
The role and choice of the French notaire deserves a separate article in this series.
And then there is the ten-day cooling-off period
A private individual purchasing a residential property in France is, in principle, entitled to a statutory ten-day délai de rétractation.
During that period, the buyer may withdraw without having to give a reason. But there is an important detail here too. The period does not necessarily begin at the moment the buyer signs the avant-contrat. The start of the period is linked to the formal notification or delivery of the agreement and the information required by law. That may sound like a technical detail, but it is not. If a buyer wishes to withdraw, a single day can make the difference. That is why this will be the subject of the next article in this series.
The avant-contrat is the time to ask questions
After the avant-contrat, many steps still follow. The notaire carries out the necessary investigations, financing is finalised, any rights of pre-emption are dealt with, the conditions in the agreement must be fulfilled and eventually the acte authentique is signed.
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