Preliminary Agreement
A contract in which the parties commit to concluding a specified future agreement — most often a property sale — giving the buyer a legally enforceable claim to force the sale through if the seller later refuses.
Сфера дії: Польща.
Визначення
The preliminary agreement (umowa przedwstępna) is governed by Articles 389–390 of the Civil Code. It must specify the essential terms of the final agreement it commits the parties to — for a property sale: the parties, the property, and the price. Setting a deadline for concluding the final agreement is standard market practice, but under Article 389 §2 it is not a condition of validity: if the preliminary agreement leaves the deadline out, the party entitled to demand conclusion of the final agreement simply has one year from the preliminary agreement's date to set one.
Unlike the final sale agreement itself, a preliminary agreement for real estate does not need to be made as a notarial deed to be valid — a plain written document is sufficient. However, only a preliminary agreement made in notarial form gives the other party the stronger remedy of demanding through the courts that the final agreement be concluded, with a court judgment then able to substitute for the missing signature. A preliminary agreement in ordinary written form only entitles the disappointed party to claim damages if the other side refuses to proceed.
In practice, buyers negotiating a preliminary agreement in ordinary written form typically also pay a zadatek to give the seller a real financial incentive to follow through, since a damages claim is slower and less certain than the notarial-form remedy of forcing the sale.
Приклади
A buyer and seller sign a preliminary agreement in ordinary written form, with a 20,000 PLN zadatek and a three-month deadline to complete the notarial deed.
A buyer who signed their preliminary agreement in notarial form successfully sues to force the sale through after the seller tries to back out for a higher offer.
A buyer whose preliminary agreement was only in ordinary written form discovers that, when the seller refuses to proceed, their only recourse is to sue for damages rather than to force the sale itself.
Як це впливає на купівлю та продаж
Buyers who want the strongest protection should insist the preliminary agreement itself be made in notarial form, since only that version lets a court force the sale through if the seller later refuses. Sellers should understand that a notarial-form preliminary agreement commits them just as firmly as the final deed will — backing out isn't a low-stakes option once that document is signed.
