Preliminary Real Estate Sale Agreement: Differences in Burden of Proof for Breach – Commentary on Order No. 16370/2025

The preliminary real estate sale agreement is a fundamental instrument that binds parties to the future execution of the deed. But what happens if one party fails to uphold the agreement? The Supreme Court of Cassation, with Order No. 16370 of June 17, 2025 (reporting judge Dr. V. P.), has provided a crucial interpretation on the different methods of proving damages in case of breach, distinguishing between the promisor seller and the promisor buyer. This ruling is essential for anyone operating in the sector.

Breach of Preliminary Agreement: Burden of Proof Compared

The preliminary agreement (Art. 1351 of the Italian Civil Code) is a commitment to enter into a definitive contract. Article 1453 of the Italian Civil Code allows the injured party, in case of breach, to seek performance or termination, in addition to damages. It is precisely on the proof of such damages that the Cassation Order, in the dispute between A. R. and F., introduces a clarification of great practical impact.

The Cassation Ruling and Its Implications

The Cassation, rejecting the previous decision of the Court of Appeal of Messina of 17/12/2018, has established clear principles on the burden of proof. The jurisprudential maxim is as follows:

In matters of preliminary real estate sales, while the breach by the promisor buyer means that the promisor seller is owed damages for the substantial unmarketability of the property during the pendency of the preliminary agreement, which exists in re ipsa and therefore does not require proof, the breach by the promisor seller obliges compensation for damages requested by the promisor buyer only if the latter provides proof of their actual existence and if they, even if to be quantified equitably, are a direct and immediate consequence of the breach.

This ruling outlines a crucial distinction. If the breach is by the promisor buyer, the promisor seller is entitled to compensation for the "substantial unmarketability" of the property. This damage is "in re ipsa," inherent in the breach, not requiring specific proof of economic prejudice, as the immobilization of the property is sufficient to constitute damage.

Conversely, if the breach is attributable to the promisor seller, the promisor buyer seeking damages must provide rigorous proof of the actual existence of the damages. The buyer must demonstrate that the damages are a "direct and immediate consequence" of the breach (Art. 1223 of the Italian Civil Code). Although quantification may occur equitably (Art. 1226 of the Italian Civil Code), the burden of proving the existence of the damage and the causal link remains with the buyer.

In summary:

• Damage to the Promisor Seller: "In re ipsa" (unmarketability), does not require proof.
• Damage to the Promisor Buyer: Requires rigorous proof of existence and direct/immediate causal link.

Practical Advice and Legal Protection

This interpretation has significant implications. For the seller, compensation is facilitated. For the buyer, it is essential to meticulously document every cost or loss (e.g., notary fees, missed opportunities) arising from the failure to comply with the preliminary agreement. The advice of a specialized lawyer is crucial to best protect one's interests.

Conclusions: Awareness and Protection

Order No. 16370/2025 clarifies the different burdens of proof in the breach of a preliminary agreement. This distinction reflects the different nature of the prejudice that each party may suffer. Understanding these nuances is essential for anyone approaching a real estate sale, ensuring greater awareness and effective tools for the defense of their rights. Careful management and qualified legal advice are always the best guarantees.