Promesa de compraventa: clauses to check

In most Colombian property purchases, the first document with real legal weight is not the deed. It is the promesa de compraventa, a promise to buy and sell that the buyer and seller sign weeks or months before they go to the notary. It is usually where the deposit is paid, the closing date is fixed, and the consequences of backing out are spelled out. For a foreign buyer reading it in a second language, this is the document most worth slowing down for.

What a promesa is, and what it is not

A promesa is a contract in which both parties commit to sign a future contract: the escritura pública de compraventa, executed before a Colombian notary. It does not transfer ownership. In Colombia you become the owner only once the escritura is signed and then registered with the Oficina de Registro de Instrumentos Públicos, which is overseen by the Superintendencia de Notariado y Registro. Until then, what you have is a contractual right against the seller, not title to the property.

The Código Civil regulates the promise of a contract. Article 1611, as substituted by Ley 153 de 1887 article 89, treats a promise as binding only if these requirements are met:

be in writing;
relate to a contract the law would not treat as ineffective;
contain a term (plazo) or a condition that fixes when the promised contract will be signed;
describe the promised contract precisely enough that only the delivery of the property or the legal formalities remain.

A promesa that leaves the signing date open, or describes the property or the price vaguely, may not be enforceable as a promise at all. That is the main reason to check every date and description carefully. Have a Colombian lawyer confirm the current wording of the Código Civil and how courts apply it to your draft.

The property and the parties

Property identification. The promesa should identify the property by its address, its folio de matrícula inmobiliaria (the registry number) and, typically, its boundaries or the reference to the deed that describes them. Compare all of this against a current certificado de tradición y libertad; see our guide to reading the certificado.
Seller. The person or company signing as seller should match the owner shown on the certificado. If someone signs under a power of attorney, ask for a copy and confirm it covers this sale.
Buyer. Sign in the exact name, or company, that will hold title. Changing the buyer later can complicate the escritura and your foreign-investment records (see personal name vs. SAS).
Liens and restrictions. The seller usually promises to deliver the property free of mortgages, embargoes and other encumbrances. If the certificado shows one, the promesa should say how and when it will be lifted.

Price, payments and how the money arrives

The promesa should state the total price, the amount and date of each payment, and how each one will be made. For a foreign buyer, how matters as much as how much. Money sent from abroad should come through the regulated exchange market and be declared as foreign investment in the buyer's name, so the payment schedule should leave room for that (see sending money from the US and registering your foreign investment). Be wary of a clause asking you to pay the seller abroad or into a third party's account.

Also check who pays which closing costs (notary, registration, taxes). That split is often negotiated in the promesa; see closing costs in Colombia.

Arras: the deposit and what it means

The initial payment is often called arras, and the label matters. The Código Civil regulates arras, and Colombian practice distinguishes between two broad types:

Confirmatory arras (arras confirmatorias) are a sign that the deal is closed and usually count toward the price. They do not give either side a right to walk away.
Withdrawal arras (arras de retractación or penitenciales) work as the price of backing out: either party may withdraw. Under Código Civil article 1859, the party who gave the arras loses them, and the party who received them must return them doubled. Confirmatorias must be stated expressly in writing under article 1861; otherwise the law presumes a right to retract. Have a Colombian abogado confirm how your draft is labeled.

Read how your promesa labels the deposit and whether it says if either party may withdraw, until when, and with what consequence. If the wording is unclear, ask for it to be rewritten before you sign. Where one party is a merchant, such as a developer, the Código de Comercio (articles 866–867) may also apply to arras and the cláusula penal. Ask a Colombian abogado which rules govern your contract.

Cláusula penal: the penalty for breach

Most promesas include a cláusula penal, an amount one side owes the other if it fails to perform, for example by not appearing at the notary or not paying on time. Check:

that it applies to both parties, not just the buyer;
what triggers it, and whether there is a notice or cure period first;
whether the other side can claim the penalty and still demand that the contract be performed, or only one of the two. As a general rule under Código Civil article 1594, once the debtor is in mora the creditor chooses between the principal obligation and the penalty — not both — unless the parties stipulated the penalty for simple delay or that paying the penalty does not extinguish the principal. The contract's wording matters; have a Colombian abogado review it;
how it interacts with the arras, so you are not exposed to losing the deposit and paying a penalty for the same event without having agreed to that.

The size of the penalty is negotiable. There is no standard amount you should assume. Código Civil article 1601 and, when commercial rules apply, Código de Comercio article 867 allow reduction of penalties considered excessive; ask a Colombian abogado how those limits would apply to your figures. Never invent or assume a percentage from a blog.

Dates, notary and delivery

Signing date, time and notary. The promesa should name a specific date (or an objective way to set it), the time and the notaría where the escritura will be signed. Vague dates such as “when the bank approves” or “when the building is finished” can make the promise weak. You can look up notarías in the Superintendencia's directory.
Extensions. If the date may move, the promesa should say how. An extension should be agreed in writing, typically as an otrosí (amendment) signed by both parties.
Delivery (entrega). State when you get the keys, in what condition, and with which utility and administration (HOA) bills paid up to that date.
Your presence. If you will not be in Colombia for the signing, arrange a power of attorney well in advance. A power signed abroad generally has to be formalized for use in Colombia (apostille or consular process). See Cancillería's apostille and legalization page, and confirm the requirements with the notary who will execute the escritura.

Conditions

A promesa can be made subject to conditions: mortgage approval, a satisfactory title study, lifting an existing lien, or, in pre-construction, the developer completing the project. Each condition should be specific and should have a deadline, and the contract should say what happens to your money if the condition fails. Make sure an unmet condition returns your payments instead of triggering the penalty against you.

Signing the promesa itself

A promesa is commonly a private document. It does not have to be an escritura, but many parties have their signatures authenticated at a notary (autenticación de firmas) for extra certainty about who signed. Get a Spanish original and, if you need one, a translation for your own use, and remember that the Spanish text is what will count. Keep the signed promesa with your payment records, because it explains what each transfer was for. For the full sequence, see buying property in Colombia, step by step.

This guide is education, not legal advice. Have a Colombian lawyer review your promesa before you sign or pay anything.

Promesa checklist

Seller matches the owner on a current certificado de tradición y libertad.
Property identified by address and folio de matrícula inmobiliaria.
Buyer named exactly as the future titleholder.
Price, payment dates and payment method stated; foreign funds routed and declared correctly.
Arras clearly labeled as confirmatory or withdrawal, with consequences spelled out.
Cláusula penal applies to both parties, and its relationship to the arras is clear.
Specific date, time and notaría for the escritura; extensions only by signed otrosí.
Conditions have deadlines and a clear refund outcome.
Closing-cost split and delivery terms written down.
Reviewed by a Colombian lawyer before signing.

Frequently asked questions

Does signing a promesa make me the owner?

No. A promesa is a commitment to sign the escritura pública later. You become the owner only once the escritura is signed before a notary and registered with the Oficina de Registro de Instrumentos Públicos.

Why does the signing date in the promesa matter so much?

Under Código Civil article 1611 as substituted by Ley 153 de 1887 article 89, a promise is binding only if, among other requirements, it contains a term or condition that fixes when the promised contract will be signed. A promesa with an open or vague date may not be enforceable as a promise; have a Colombian abogado apply the statute to your draft.

What is the difference between confirmatory and withdrawal arras?

Confirmatory arras (Código Civil art. 1861) must be express in writing and usually count toward the price, without a right to walk away. Withdrawal arras (art. 1859) let a party back out: the giver loses them and the receiver returns them doubled. Check which type your promesa describes and have a Colombian abogado confirm.

Can a cláusula penal be negotiated?

Yes. There is no standard amount to assume. Check that it applies to both parties, what triggers it and how it interacts with the arras, and have a Colombian lawyer review it.

Does the promesa have to be signed at a notary?

It is commonly a private document, not an escritura, though many parties have their signatures authenticated at a notary for extra certainty about who signed.

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