Specific performance of a promise to sell is a judicial mechanism that can allow a buyer to obtain the transfer of the property when the seller refuses to sign the deed. Instead of terminating the contract and requesting compensation, the buyer seeks the court to produce the effects of the declaration that the seller should have made.

In practice, the judgment can substitute the seller's promise to sell. However, this outcome is not automatic. The possibility of compelling the sale depends on the content of the contract of promise to buy and sell, the behaviour of the parties, the legal status of the property, and the fulfilment of the obligations undertaken by the buyer.

Before proceeding to court, it is necessary to ascertain whether there is merely a delay, a definitive refusal, or an impediment that has made the sale impossible. It should also be analysed whether the buyer is prepared to pay the outstanding price and fulfil the remaining conditions stipulated in the preliminary sale agreement.

What is specific performance of a pre-contract?

Specific performance allows for the judicial enforcement of a promise to contract. In the context of property sales, it is primarily used when the seller has agreed to sell but subsequently refuses to attend the notary's appointment or attempts to withdraw from the deal.

If the action is judged to be well-founded, the court issues a judgment that produces the effects of the seller's declaration of intent. This means that the judicial decision can substitute the declaration that would have been made in the deed or in the notarised private document.

This mechanism is distinct from the resolution of the CPCV. In resolution, the aim is to terminate the contract and draw consequences from the breach, particularly concerning the deposit. In specific performance, the buyer remains interested in the property and wishes to conclude the acquisition on the agreed terms.

When can a seller be forced to sell?

For specific performance to be considered, a valid and sufficiently determined preliminary sale and purchase agreement must exist. The preliminary sale and purchase agreement must allow for the identification of the parties, the property, the price, the terms of the business, and the obligations undertaken.

It is also necessary to demonstrate that the seller has failed to fulfil their obligation to enter into the final contract. In many cases, it is sufficient for default to exist, meaning a legally relevant delay. It is not necessarily mandatory to wait for definitive non-performance to request specific performance.

However, the buyer must be in a position to fulfil their part. If a portion of the price still needs to be paid, a document obtained, or another essential act performed, the court may require the obligation to be fulfilled or the amount owed to be deposited.

The specific enforcement may be considered, among other situations, when:

• The seller does not attend the deed without adequate justification;
• The seller declares they no longer intend to sell.;
• The seller tries to increase the price after signing the preliminary sale agreement;
• The seller receives a higher offer and tries to get rid of the first buyer.;
• The deed is not registered despite the buyer's insistence;
• The seller is not providing the necessary documents for the sale to be completed.

Each situation must be analysed individually. A single absence or a justified lateness does not necessarily have the same consequences as a clear and definitive refusal.

The 830th article of the Civil Code states that if the obligation is to be performed outside of Portugal, the debt is to be settled in the currency of the place of performance or in euros, at the creditor's option.

The specific performance of a promise to contract is provided for in Article 830 of the Civil Code. In general, when someone undertakes to conclude a specific contract and fails to fulfil that promise, the other party may obtain a court order that produces the effects of the missing declaration of will.

This possibility depends on the nature of the obligation allowing for the substitution of the declaration and on the absence of a valid convention excluding specific performance.

In pre-contracts relating to the transfer or constitution of real rights over buildings or independent units, intended for owner-occupation, the law establishes particular protection. In these situations, the right to specific performance cannot be excluded by the parties as provided for in the Article 830, no. 3, in conjunction with the Article 410(3) of the Civil Code.

The framework must, however, be checked against the specific contract. The purpose of the property, the form of the CPCV, the existence of a deposit, the clauses adopted and the nature of the parties may influence the legal outcome.

For a broader view of applicable standards, you can consult the page on Distance Selling Regulations.

Is a definitive breach necessary?

Specific performance may be claimed when the seller is in default, without it always being necessary to previously convert such delay into a definitive breach. The essential point is that the obligation to enter into the definitive contract is due and has not been fulfilled.

Imagine that the deed should have been finalised by a certain date and the seller, despite being summoned, did not appear. If the buyer remains interested in the acquisition, it may make sense to consider specific performance rather than immediately terminating the contract.

This distinction is important because rescinding the preliminary sale agreement and specific performance have different objectives. If the buyer prematurely declares that they consider the contract terminated, it could hinder a later attempt to demand the sale.

Before sending a communication to the seller, it is advisable to analyse the contractual deadline, the deed marking rules, and the potential need for a formal notice. You may also consult the article on Breach of the CPCV.

Does the signal prevent specific execution?

The existence of a deposit may influence the possibility of specific performance. Under the general terms of Article 830, the provision of a deposit or the setting of a penalty for non-performance may be interpreted as an agreement contrary to specific performance.

However, this rule admits important exceptions, namely in promises covered by Article 410, paragraph 3, of the Civil Code. Therefore, it should not be automatically concluded that the payment of a deposit prevents the buyer from demanding the sale.

This also does not mean that the buyer can freely accumulate all remedies. Requiring the completion of the sale is different from rescinding the contract and demanding double the deposit back. The appropriate option depends on the buyer's objective and the facts that have already occurred.

If the buyer intends to keep the property, specific performance may be more appropriate. If they have lost interest in the acquisition or the sale has become unviable, it may be necessary to assess the termination and the consequences provided for in Article 442 of the Civil Code.

Does the buyer have to be prepared to pay the price?

He who requests specific performance must demonstrate that he has fulfilled or is prepared to fulfil his own obligations. The buyer cannot judicially demand the transfer of the property and, at the same time, refuse to pay the agreed price.

When there is still an outstanding amount to be paid, Article 830(5) of the Civil Code allows the court to set a deadline for the buyer to deposit their instalment. If this deposit is not made, the action may fail.

For this reason, before proceeding, it is important to confirm that financing is available or that sufficient funds exist to pay the remainder of the price, taxes, and associated acquisition costs.

A mere intention to obtain credit may not be enough. If the bank has not yet approved the financing or if the approval has expired, the strategy must be evaluated with particular prudence.

What happens if the property has a mortgage?

The existence of a mortgage does not always prevent specific performance. However, it is necessary to understand if the charge can be cancelled and under what conditions.

When the mortgage secures a debt of the seller and should not remain after the sale, the process may require specific measures to protect the buyer. In certain circumstances, it may be necessary to ascertain the amount owed to the bank and arrange for the payment of the price to coincide with the cancellation of the charge.

Before proceeding, the permanent property registry certificate, banking documentation, and the CPCV clauses relating to the vacant and unencumbered handover of the property must be consulted.

If there are any registered liens, seizures, usufructs, or other rights, the viability of specific enforcement must be analysed on a case-by-case basis. The judgment does not automatically eliminate all obstacles affecting the property.

What if the seller has already sold the property to someone else?

The situation becomes more complex when the seller enters into a second sale and transfers the property to a third party. A preliminary contract with merely obligatory effect does not, in itself, prevent another acquisition from being registered.

If the third party has validly acquired the property, specific performance against the original seller may no longer be possible, as they no longer possess the necessary right to complete the promised transfer.

In this scenario, the initial buyer may have to consider other mechanisms, such as the termination of the CPCV, the refund of the deposit doubled, or a claim for damages, depending on the contract and the available evidence.

Speed may be relevant when there are indications that the seller intends to negotiate the property with someone else. It may be necessary to consider registering the action and other measures intended to preserve the usefulness of the process.

To better understand this risk, you can refer to the article on Sell a property after signing a preliminary purchase agreement.

Does the actual effectiveness of the CPCV reinforce protection?

The preliminary contract normally only takes effect between the parties. This means that it binds the buyer and the seller, but it does not automatically grant the buyer a real right over the property.

Under certain conditions, the parties may give real effect to the preliminary agreement. To do this, formal requirements must be met and the relevant registration must be carried out.

Actual effectiveness can strengthen the buyer's position against third parties. However, it does not arise solely from the use of the expression “actual effectiveness” in the contract. It is essential that the requirements laid down by law are met.

This protection should be considered before a dispute arises. Once the seller has transferred the property to a third party, it may no longer be possible to obtain the same level of protection through a simple addendum.

Important documents to prepare the action

Specific performance requires proof of the contract, of the breach, and of the buyer's readiness to perform. Before deciding to proceed, relevant documentation must be gathered and analysed.

• the CPCV and all signed addenda;
• the payment receipts for the deposit and the further payments;
• The updated property registration certificate.;
• the property register and the property documentation;
• the notices to appear for the signing of the deed;
• the communications exchanged between buyer and seller;
• proof of funding approval;
• the affidavit or certificate of non-appearance in the deed, where applicable;
• the documents demonstrating the seller's refusal.

Informal messages may be relevant, but they do not necessarily replace formal communication. Content, date, and proof of receipt should be carefully evaluated.

The importance of the notary's appointment for the deed

In many pre-sale purchase agreements (CPCVS), one of the parties is responsible for scheduling the property transfer deed and communicating the date, time, and location to the other party. Failure to follow this procedure can make it difficult to prove that the seller was effectively in default.

The notice must respect the notice period stipulated in the contract and be sent by a means that allows proof of receipt. It must also indicate the elements necessary for the performance of the act.

If the seller does not attend, it may be useful to obtain a document proving their absence. Depending on the chosen venue for the ceremony, a certificate or certificate of non-attendance may be issued.

The buyer must also demonstrate that they were prepared to conclude the transaction. This may involve the availability of the price, presence at the location and fulfilment of their respective conditions.

Specific execution or double the signal?

The choice depends above all on the buyer's objective. If the property remains essential and the sale is still legally possible, specific performance can allow the deal to go ahead.

If the buyer no longer intends to purchase, if the property has been transferred to a third party, or if there are serious obstacles, it may make more sense to assess the termination of the CPCV and the consequences for the down payment.

The repayment of the deposit in double is not automatic simply because the seller failed to meet a date. As a rule, it is necessary to demonstrate a definitive breach of contract attributable to the seller, rather than mere default or a justifiable delay.

Any penalty clauses, expenses incurred, additional damages and limitations set out in the contract must also be analysed. The strategy must be defined before sending communications that could be interpreted as a definitive choice between performance and termination.

Risks of proceeding without analysing the CPCV

Specific performance may be unfeasible if the contract does not sufficiently identify the property, if the buyer is in breach, if the sale has become impossible, or if there are unforeseen legal obstacles.

Difficulties may also arise where the CPCV contains contradictory clauses, unclear time limits or an exclusion of specific performance whose validity is open to dispute.

Before starting the process, it is important to confirm the legal validity of the CPCV and check that the formalities relating to the preliminary sale agreement for the property have been complied with.

Legal proceedings can involve costs, documentary evidence, witnesses, records, and compliance with fiscal obligations. It should not be initiated solely on the conviction that the seller “cannot back out”.

Is it possible to resolve the issue without going to court?

Not all refusals to sell require legal action. In some cases, it's possible to resolve the dispute through negotiation, scheduling a new date, correcting documents, or executing an addendum.

If the problem relates to a mortgage, a planning permission or an outstanding bank debt, an additional period may be granted to resolve the issue. A payment arrangement may also be agreed to allow the charges to be settled at the time of the conveyancing.

When the seller intends to increase the price or accept a third-party offer, negotiations can become more difficult. Nevertheless, legally sound communication can clarify the consequences of non-compliance and avoid litigation.

Any alteration to the CPCV must be formalised in writing. Verbal agreements on new deadlines, prices, or conditions can create difficulties in proving them.

Quando consultar um advogado?

Deve consultar um advogado quando o vendedor se recusa a marcar ou celebrar a escritura, tenta aumentar o preço, anuncia que vai vender a terceiro ou deixa de responder às comunicações.

O apoio jurídico também é importante quando existem hipotecas, penhoras, vários proprietários, heranças, procurações, sociedades comerciais ou dúvidas sobre os poderes de quem assinou o CPCV.

Se já foi enviada uma comunicação de resolução, aceite uma devolução de valores ou assinada uma alteração contratual, esses atos devem ser analisados antes de pedir a execução específica.

Quanto mais cedo for feita a avaliação, maior será a possibilidade de preservar documentos, cumprir prazos e evitar decisões incompatíveis com o objetivo de adquirir o imóvel.

Como um advogado pode ajudar na execução específica?

Um advogado pode analisar o CPCV, confirmar a situação registral do imóvel, verificar se existe mora ou incumprimento definitivo e avaliar se o comprador está em condições de cumprir a sua prestação.

Pode ainda preparar a convocatória para a escritura, responder às comunicações do vendedor, negociar uma solução e avaliar a necessidade de registar a ação ou adotar outras medidas de proteção.

Se a via judicial for adequada, o advogado pode estruturar o pedido, reunir a prova, acompanhar o depósito do preço quando necessário e defender que a sentença produza os efeitos da declaração de venda em falta.

A execução específica não deve ser tratada como uma fórmula automática para obrigar alguém a vender. O sucesso do pedido depende da validade do contrato, da possibilidade de realizar o negócio e da atuação de ambas as partes.

Conclusão

A execução específica do contrato-promessa pode permitir ao comprador obrigar o vendedor a cumprir a promessa de venda. Em vez de terminar o CPCV, o comprador pede ao tribunal que substitua a declaração do vendedor e produza os efeitos necessários à transmissão do imóvel.

Para isso, é essencial que exista um contrato válido, que o vendedor esteja em falta, que a venda continue a ser possível e que o comprador tenha cumprido ou esteja preparado para cumprir as suas obrigações, incluindo o pagamento do preço.

A existência de sinal, a finalidade do imóvel, as cláusulas do CPCV, os encargos registados e uma eventual venda a terceiro podem alterar profundamente a solução. Por esse motivo, cada caso deve ser analisado antes de optar entre exigir a venda, resolver o contrato ou reclamar as consequências do incumprimento.

Quando o vendedor recusa a escritura, agir com rapidez e prudência pode ser determinante. Uma comunicação mal formulada ou uma demora excessiva pode comprometer a possibilidade de adquirir o imóvel que foi prometido vender.