The preliminary contract may be declared final when the buyer has not paid the full price

With a new Interpretative Decision of 09.05.2023, the Supreme Court of Cassation ruled on a significant issue related to the preliminary contracts for the sale of real estate.

According to the Supreme Court of Cassation, the court may declare final a preliminary contract, under which there is a stipulation that it will be concluded after payment of the entire price, even when the buyer-plaintiff has not paid it. In this case, the claimant must fulfill his obligation within two weeks of the entry into force of the decision under the conditions of art. 362, para. 1 of the Civil Procedural Code. If the buyer fails to pay within this period, the decision may be annulled at the request of the defendant. 

A necessary prerequisite for the submission of this claim by the buyer is the existence of a legal relationship between the parties, based on a valid preliminary contract, containing an agreement on all the essential terms of the final contract, which has not been terminated.

The payment of the agreed price by the buyer, even if the preliminary contract provides for it to be carried out before the conclusion of the final contract, should not be considered an absolute prerequisite for the merits of the claim under Art. 19, para. 3 of the Obligations and Contracts Act and, accordingly, its absence to have as a mandatory consequence the rejection of the claim.

According to the Supreme Court judges, when the buyer defaults (has not paid the price) and the non-fulfillment of the obligation to pay the price is not due to objective reasons or to the creditor's delay, this circumstance is not an obstacle to upholding the claim when the default has not led to the termination of the contract between the parties.