Promise to sell: essential clauses to include

Drafting a promise to sell (promesse de vente) is a crucial step in any property transaction. This legal document, which formally commits the seller to transfer their property on specified terms, requires particular attention to the clauses it contains. A poorly drafted promise to sell can lead to major legal complications, delays in the transaction, or even the outright cancellation of the sale. For property professionals and private individuals alike, mastering the essential clauses of a promise to sell is therefore indispensable to securing their property transactions in 2026.

The legal foundations of the promise to sell

The unilateral promise to sell is governed by Article 1124 of the French Civil Code: the promisor grants the beneficiary the right to opt for the conclusion of a contract whose essential terms are determined and for whose formation only the beneficiary's consent is lacking. Revocation of the promise during the period allowed to the beneficiary to exercise the option does not prevent the formation of the promised contract. Article 1589 of the French Civil Code, according to which a promise to sell amounts to a sale where there is reciprocal consent of both parties on the thing and on the price, governs the bilateral promise, commonly called a compromis (preliminary sale agreement). The distinction between these two forms of preliminary contract is developed in our article on the differences between a bilateral promise and a unilateral promise.

Key points of the legal framework:

• Article 1124 of the French Civil Code defines the unilateral promise and deprives its revocation of effect during the option period • Only the promisor is bound; the beneficiary remains free to exercise the option or not • Article 1589-2 of the French Civil Code makes void a unilateral promise to sell a building that is not recorded in an authentic instrument or in a private instrument registered within ten days of its acceptance by the beneficiary • Article 1170 of the French Civil Code deems unwritten any clause that deprives the debtor's essential obligation of its substance; an ambiguous clause is not deemed unwritten, it is interpreted

The standard templates for promises to sell circulated online take account neither of the particular features of each transaction nor of recent changes in the legislation.

Precise identification of the property

Detailed description of the property

The description of the property is one of the most critical clauses in a promise to sell. The description must be exhaustive and include all the elements needed to identify the building precisely. The documents needed to identify the property and to prove ownership are listed in our article on the documents to gather for a compromis de vente.

Essential items to mention:

• Municipality in which the property is situated • Cadastral section and parcel number • Cadastral area • Nature of the premises (house, flat, commercial premises) • Floor and position in the building • References of the title deed

Example of an identification clause: "A dwelling house situated in [Town], registered in the cadastre under section AB number 123, with a cadastral area of 500 m², acquired by notarial deed dated [date] received by Maître [Name], notary in [Town], published at the land registry (service de publicité foncière) of [Place] on [date], volume [X], number [Y]."

Legal and administrative references

For properties in co-ownership (copropriété), the description must be even more precise:

• Co-ownership lot number • Share of the common parts • References of the co-ownership regulations • Descriptive statement of division

Determination of the price and financial terms

Fixing the sale price

The price is an essential element of the property contract. Case law requires that it be determined or objectively determinable.

Mandatory statements concerning the price:

• Exact amount in euros • Statement of "net to seller" or costs borne by the buyer • Payment terms • Amount of the immobilisation indemnity (indemnité d'immobilisation)

Example of a price clause: "The sale price is fixed at the sum of €350,000 (three hundred and fifty thousand euros) net to seller, all costs, duties and taxes to be borne by the buyer. An immobilisation indemnity of €17,500 (5% of the price) shall be paid on signature of this agreement."

Terms of payment of the price

A well-drafted property contract must specify:

• Amount and conditions of payment of the indemnity • Financing conditions • Payment deadlines • Terms for release of the funds

Essential conditions precedent

Condition precedent of obtaining a loan

This condition, imposed by Article L. 313-41 of the French Consumer Code where the price is paid with the help of one or more property loans, must specify precisely:

• Amount of the loan applied for • Maximum term of the loan • Maximum acceptable interest rate • Lenders envisaged • Time limit for obtaining the approvals

Example of a financing clause: "This sale is concluded subject to the condition precedent (condition suspensive) that the buyer obtains a property loan of €280,000 over a maximum of 25 years, at an effective overall rate not exceeding 3.5% per annum, from any bank of their choice, within 45 days of signature of this agreement."

Other common conditions precedent

Property surveys and certificates may be made the subject of conditions precedent:

• Energy performance certificate (DPE) • Asbestos survey (properties built before 1997) • Lead survey (properties built before 1949) • Termite survey (contaminated areas)

Specific conditions depending on the property:

• Obtaining planning permission • Clearing of the urban pre-emption right • Waiver by forced heirs • Administrative regularisation

The seller's obligations and guarantees

The seller's information obligations

The seller must provide a set of precise information:

Mandatory documents: • Complete technical diagnostic file • Information on easements (servitudes) • Co-ownership charges (last 3 years) • Statement of risks and pollution • Minutes of general meetings

Example of an information clause: "The seller shall hand over to the buyer all the mandatory technical diagnostics currently valid, together with the last three co-ownership charge notices and the minutes of the general meetings of the last three years."

Statutory and contractual guarantees

The guarantees may be adjusted by contract:

• Warranty against eviction • Warranty against latent defects • Floor area guarantee (Carrez law) • Guarantee of compliance with standards

The duration and the terms of exercise of the option

Determining the duration of the option

The duration of the option must be precise and appropriate:

Commonly accepted durations: • Standard sales: 2 to 4 months • Complex conditions precedent: up to 6 months • Administrative procedures: specific time limits

Example of a duration clause: "This option is granted for a period of three months from the signature of this agreement, that is until [precise date] inclusive."

Terms of exercise of the option

The terms must be explicit:

• Forms of notification (registered post with acknowledgement of receipt recommended) • Required notice period • Supporting documents to be produced • Consequences of exercise or non-exercise

Example of an exercise clause: "The option shall be exercised by registered letter with acknowledgement of receipt, accompanied by evidence that the conditions precedent have been fulfilled, sent to the seller at least 15 days before the option period expires."

Termination and penalty clauses

Termination clauses

The breaches that may lead to termination must be listed:

Frequent grounds for termination: • Failure to comply with contractual time limits • Failure to pay the indemnity • Failure to produce the required supporting documents • Breach of the conditions precedent

Penalty clauses and indemnities

The immobilisation indemnity is subject to a specific regime:

• Amount generally between 5% and 10% of the price • Remains payable to the seller in the event of waiver • Does not constitute a penalty clause and therefore cannot be reduced by the court (Cour de cassation, 3rd Civil Chamber, 30 April 2002, No. 00-16.422; Cour de cassation, 1st Civil Chamber, 6 October 2021, No. 19-15.035)

The operation of the penalty clause and of the immobilisation indemnity where the buyer withdraws is examined in our article on cancellation of the compromis de vente by the buyer.

Securing the promise to sell legally

To optimise the legal certainty of your transaction, several precautions are needed:

Pitfalls to avoid with free templates

A free template for a promise to sell carries major risks:

• Standard clauses unsuited to your situation • Failure to reflect recent developments in case law • No customisation to the property • Gaps in the conditions precedent • Failure to adapt to local specificities

Advantages of professional support

Consulting a professional makes it possible to:

• Adapt the clauses to the specific features of the transaction • Anticipate potential difficulties • Incorporate the latest legal developments • Secure the transaction effectively

Essential points of vigilance

Before signing, check:

Security checklist: • Compliance with the statutory information obligations • Precision of the conditions precedent • Consistency of time limits and terms • Proportionality of penalties • Adaptation to the specific features of the property

Example of an overall security clause: "The parties declare that they have been informed of the legal and tax consequences of this promise, and that they have had the benefit of the advice of their respective advisers. They expressly waive the right to invoke subsequently any failure to inform or advise."

Conclusion and next steps

Drafting a promise to sell property requires precise adaptation to the circumstances of each transaction. Using a standard template exposes the parties to legal risks and to costs greater than the savings made.

The essential clauses detailed above – precise identification of the property, conditions precedent, the seller's obligations, terms of exercise of the option and termination clauses – must be adapted to the specific features of each transaction.

To make your property project a success in 2026, favour professional support, which will allow you to:

• Benefit from a perfectly suited promise to sell • Anticipate the difficulties specific to your transaction • Incorporate the latest legislative and case law developments • Secure your investment legally