The deed is the document that formalizes the act of buying and selling, being made before the Notary. In Notary two different contracts may be performed:
Deed of sale: where is celebrated the transfer of ownership of the property
Deed of a loan with mortgage: constitution of the mortgage as collateral, which only takes place in case there is recourse to a bank financing for the purchase of a property.
This contractual celebration safeguards the interests of the contracting parties, ensuring the realization of the final contract, the deed,”Escritura”.
The written form requirement follows the art. 410 , nº 2 of the Civil Code to determine that the promise of entering into a contract for which the law requires a public or private notary, is only valid if made in writing and signed by the part ( s ) that will bind . The conclusion of preliminary contract of sale on their fraction, built, under construction or to be constructed, has a separate regime. In this respect, art. 410 nº 3 of the Civil Code establishes that the promise must be in writing, under penalty of nullity. The signatures on the promise or promissory must be recognized in a notary, proceeding also the certification of the existence of the user’s or construction license.
Elements to include in a Promissory Contract:
In a contract to be signed, the parties should take into account the core of the business, the object itself, the purpose, describing it specifically and detailed in such a way that parties don’t fall in doubt . Also there must be included some reciprocal guarantees for the parties to complete the business or are properly compensated for breach of contract by the other party that may eventually occur.
It should be also provided in the contract:
A deadline for completion of the definitive agreement, the deed;
Amount of the deposit, if any, as partial payment of the total price agreed;
Amounts of reinforcement as a signal or deposit, if any, and the date of payment of the total amount as an advance payment;
The time of the delivery of the good, which is of great importance due to the possibility of retaining the good (art. 755, nº 1, paragraph f, of the Civil Code ) ;
Verified the delivery of the good (promissory signed), there is now the need to proceed to the payment of the IMT ;
Because of the possibility for either parties, to obtain a court decision that produces the effects of a business declaration missing, (art. 830 of the Civil Code) it is the promissory contract onerous and has for its object a building or condominium unit, which is described in all its content. The specific execution of the promissory cannot be excluded by the parties in case of breach.