Is the offer to purchase at the price and condition of the mandate worth a sale?

Far from being an automatic guarantee of sale, the price offer raises many questions for buyers and sellers: is the seller obliged to accept? What are the parties' rights and obligations? What are the current practices in a market that is often tense, such as the real estate market in Paris and other major cities?

In this article, we explore the legal and practical subtleties of this key stage in the real estate transaction, answering frequently asked questions and providing useful advice on how to avoid pitfalls. Whether you're buying or selling, a better understanding of the implications of the offer to purchase will help you navigate this sometimes complex process with greater serenity.

Does an offer to purchase bind the seller?

In theory, an offer to purchase at the posted price seems to imply that the seller must accept the proposal, but in practice, things aren't quite so simple. Legally, the seller is not systematically obliged to accept an offer at the asking price. Indeed, even if the offer is in line with the initial expectations expressed in the advertisement, several factors may allow the seller to refuse it without contravening the law.

The principle: the seller's contractual freedom

In France, the sale of real estate is based on the principle of contractual freedom. This means that, until a compromis or promesse de vente has been signed, the seller remains free to choose the buyer with whom he wishes to conclude the transaction. Even if an offer to purchase respects the price set out in the advertisement, the seller may refuse to sign it, orprefer another offer, for reasons of his own.

Cases in which the seller can refuse an offer to purchase at the set price

In certain specific cases, the seller may reject an offer to purchase at the price without incurring liability:

1. Several competing offers: if several buyers simultaneously propose the asking price, the seller can arbitrate between these proposals, according to non-financial criteria (for example, financing deadlines or the solidity of the file).
   
2. Suspensive conditions: a purchase offer including suspensive conditions deemed too restrictive (such as obtaining a loan within a tight timeframe) may be rejected, even if the price is in line.
   
3. Change of mind or retraction: the seller may decide to withdraw the property from the market or reassess his intentions, as long as the offer has not been accepted.
   
4. Sale through a real estate agent: if the mandate entrusted to the agent stipulates that all offers must be presented to the seller, the latter nevertheless remains free to refuse an offer, even at the price.
   

Case law and current regulations

Case law has repeatedly confirmed that the seller retains a certain degree of freedom before signing a preliminary contract (compromis or promesse de vente). In particular, the Cour de cassation has reiterated that the announcement of a price does not amount to a legally binding offer, but rather an invitation to enter into negotiations.

However, in certain cases, an abusive or unjustified refusal could be challenged in court by the buyer, especially if the seller had expressed a verbal agreement or implied acceptance of the proposed conditions. In such cases, the buyer can claim damages, but these are rare and difficult to prove.

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To recap, although an offer to purchase at the price is often perceived as a strong lever for buyers, it does not automatically oblige the seller to conclude the transaction. Contractual freedom prevails as long as no binding document has been signed. Buyers must therefore remain vigilant and ensure that their offer is accompanied by a solid file, in order to increase their chances of being selected.

Patrick explains to you if the purchase offer at the price and condition of the mandate is worth a sale

What happens when the seller formally accepts a purchase offer?

When a seller formally accepts an offer to purchase, it initiates a process that binds both parties to the conditions defined in the offer. However, although this acceptance marks a key stage, it does not yet constitute a definitive sale. It is a pre-agreement, the legal implications of which vary according to the terms of the offer and the context of the transaction.

The seller's legal commitment

By accepting an offer to purchase, the seller undertakes to sell the property to the buyer under the conditions set out in the offer, in particular at the proposed price. This acceptance, generally formalized in writing, seals an agreement in principle that can be legally binding. It means that the seller can no longer offer the property to another buyer, or renege on his commitment without risking sanctions. On the other hand, the sale only becomes legally effective once the compromis or promesse de vente has been signed , a more detailed and binding document.

Implications for the buyer

Once the offer has been accepted, the buyer obtains a form of exclusivity on the property, subject to the conditions set out in the offer. However, this step does not mean that the buyer can immediately take possession of the property, or that the transaction is definitively secured. There are still a number of stages to go through, including the drafting of the preliminary sales agreement, administrative formalities and, if necessary, obtaining financing.

Conditions precedent: a safeguard for both parties

Theoffer to purchase at the agreed price may include conditions precedent, such as the buyer having to obtain a mortgage. These conditions enable both parties to protect themselves in the event of unforeseen circumstances:

• If a suspensive condition is not fulfilled, for example if the buyer fails to obtain financing, the agreement lapses without penalty for either party;
  
• On the other hand, if all conditions are met, both buyer and seller are obliged to continue with the sale until it is completed, without exposing themselves to legal recourse.
  

If the seller fails to honour his commitment

If the seller withdraws his acceptance after having formally accepted a purchase offer, he is liable to sanctions. The buyer can apply to the court for compulsory execution of the sale, especially if there is no suspensive condition justifying the refusal. In addition, the seller may be obliged to pay damages to the buyer for any loss suffered.

What acceptance of the offer does not immediately resolve

Formal acceptance of an offer to purchase does not mean that the transaction has been finalized. Several points remain to be settled:

• Drafting and signing a compromis or promesse de vente, which sets out the obligations of both parties.
  
• Completion of the necessary administrative formalities (e.g., checking the property's mortgage status or urban planning).
  
• Payment of the security deposit, often requested at the time of the compromis de vente.
  

Formal acceptance of an offer to purchase is an essential but intermediate stage in a real estate transaction. It commits the seller to the proposed terms, provided the suspensive conditions are met. To avoid any misunderstanding or dispute, this acceptance must be clear, in writing and quickly followed by the signature of a preliminary contract. This secures the transaction for both parties and reduces the risk of conflict.

Is the offer to purchase at the price to be considered as a promise to sell?

The offer to purchase and the promise to sell are two distinct stages in the real estate acquisition process, each with different legal implications and degrees of commitment. While an offer to purchase may seem close to a pre-contract, it does not constitute a promise to sell in the legal sense. It remains a preliminary step in the negotiation process, without guaranteeing the finalization of the transaction.

The difference between an offer to purchase and a promise to sell

An offer to purchase at price is a proposal made by the buyer to acquire a property under the conditions he or she has specified. It is only binding on the buyer until it is accepted by the seller. However, until it has been formally accepted, it is not binding on the seller. Once accepted, it creates an obligation for both parties, but this obligation remains limited, as the offer to purchase generally does not contain all the elements necessary to constitute a definitive contract.

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A promesse unilatérale de vente, on the other hand, is a firm commitment by the seller to sell the property at a set price, subject to certain conditions. It gives the buyer a purchase option for a given period. If the buyer exercises this option, the seller is legally bound to conclude the sale. This type of deed is often supervised by a notary, and carries a much stronger commitment than the offer to purchase.

The compromis de vente is a bilateral contract in which the seller and buyer mutually agree to conclude the sale. It lays down all the conditions of the transaction (price, financing terms, deadlines, compulsory diagnostics, suspensive conditions, etc.) and constitutes a quasi-definitive step. If one of the parties withdraws without justification, the other can oblige him/her to complete the sale or pay damages.

Does an offer to purchase at the asking price constitute a pre-contract?

Even when it is at the asking price, an offer to purchase does not constitute a genuine pre-contract. A pre-contract, such as a promise to sell or a compromis, includes detailed, bilateral commitments defining the obligations of both parties. An offer to purchase, on the other hand, is often less precise and may contain areas of uncertainty (vague suspensive conditions, lack of formal agreement on secondary points, etc.).

However, if an offer to purchase at the price is accepted by the seller, it can be perceived as a binding step, particularly if it contains clear and precise terms on price and conditions. In this case, it can be used as a basis for proving the parties' intention to enter into an agreement, although a formal pre-contract remains necessary.

The limits of the “offer to purchase at price” in real estate transactions

An offer to purchase at price does not systematically imply forced execution of the sale. As long as a preliminary sales agreement has not been signed. On the other hand, an abusive refusal or unjustified retraction on the part of the seller could pave the way for recourse, although this is often complex and costly.

To sum up, an offer to purchase is not the same as a promise to sell or a compromis. It is a preliminary step in which the buyer expresses interest in the property and proposes conditions for its acquisition. Although it can be binding when accepted by the seller, it is legally less binding than a formal pre-contract. To secure a transaction, the signing of a promesse or compromis de vente remains an essential step.

What are the risks for the parties in the event of disagreement?

When a disagreement arises following an offer to purchase, the consequences can be significant, for both buyer and seller. The financial and legal risks depend largely on the nature and formalization of the commitments made by both parties. Although such disputes are rare, they can sometimes give rise to complex and costly legal proceedings.

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What happens if the seller refuses an offer at the price despite a supposed commitment?

A refusal to accept an offer at the price can be a source of dispute, particularly if the seller had given clear signs of acceptance. In some cases, this refusal may be perceived as a breach of a moral or contractual obligation. However :

• The seller remains free until a preliminary contract has been signed. Even in the event of verbal or informal acceptance, the seller may decide not to proceed. The law favors contractual freedom in this case, unless an explicit written document proves the existence of a firm agreement;
  
• In the event of abusive refusal, for example if the seller seeks to outbid the buyer after having accepted an offer, the buyer may consider legal recourse. However, jurisprudence is cautious in this type of situation, and does not systematically impose forced execution of the sale.
  

What recourse does the buyer have?

If the buyer feels that the seller has failed in his obligations, he has several options:

1. Claiming damages: if the seller has accepted an offer at the price in writing, and then improperly withdrawn, the buyer can claim compensation for the loss suffered (e.g. costs incurred for financing or moving, or loss of opportunity);
   
2. Ask for compulsory execution of the sale: this recourse is possible if a purchase offer clearly accepted in writing contains all the essential elements of the contract (price, description of the property, main conditions). However, this action is rare, as the courts generally favor freedom of contract;
   
3. Mediation: before embarking on lengthy and costly legal proceedings , the buyer can attempt an amicable resolution with the help of a mediator.
   

What are the risks for the seller?

Sellers who refuse an offer after having formally accepted it, or who act unfairly, expose themselves to a number of risks:

• Financial risks: the buyer may claim damages, particularly if the refusal to sell causes financial loss. These amounts can be substantial, depending on the evidence provided;
  
• Legal recourse : if a written commitment is clearly established, the seller may be forced by the courts to conclude the sale or pay compensation to the buyer.
  

Disagreements following an offer to purchase can lead to disputes with potentially serious consequences for both parties. The seller risks financial and legal penalties in the event of an abusive refusal or breach of contract, while the buyer must carefully weigh up the costs and benefits of taking legal action. In all cases, a well-drafted offer and clear dialogue between the parties can minimize these risks.

What are common practices in the real estate sector?

The real estate market is often marked by complex dynamics, particularly when a property attracts several offers. Even when an offer is made, the seller still has some leeway to arbitrate between different buyers.

To what extent can sellers choose between several offers at the same price?

Faced with several offers at the asking price, the seller can choose the one that seems most attractive. Several factors can influence the seller's decision:

1. The quality of the financial file: sellers often prefer buyers with a better credit rating, such as those who have already obtained financing or who don't need a loan;
   
2. The conditions offered: an offer without suspensive conditions is perceived as less risky, and will be preferred.
   
3. Speed of transaction: a buyer who can close quickly will often have an advantage.
   
4. Personal affinity: the “feeling” between a seller and a buyer can sometimes play a role, particularly for residential properties which have an emotional value.
   

How do real estate agents act as mediators?

The role of real estate agents is to:

1. Present offers objectively: they explain to the seller the advantages and disadvantages of each proposal, taking into account price, conditions and the strength of the case;
   
2. Manage real estate negotiations: agents often try to maximize the sale price while avoiding conflicts between the parties;
   
3. Facilitating transparency: by ensuring that each party has a clear understanding of the other's expectations, the agent limits misunderstandings and potential disputes;
   
4. Accompanying buyers: the agent also plays a role with buyers, providing them with advice to improve their chances, such as fine-tuning their financial file or adapting their deadlines.
   

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What strategies do buyers use to maximize their chances of obtaining the property?

In a competitive market, buyers need to stand out from the crowd to convince the seller to choose their offer, even if the price is the same. Here are some common strategies:

1. Reinforce financial solidity: Obtaining a certificate of financing or an agreement in principle from the bank before making an offer will give a token of seriousness. This reassures the seller of the buyer's ability to complete the transaction;
   
2. Propose a simplified offer : reducing or eliminating suspensive conditions, such as obtaining a loan, can be a strong argument. However, this strategy entails risks for the buyer, who must be sure of being able to finance the property;
   
3. Adapting deadlines: proposing an early signing date for the compromis or acte définitif may appeal to sellers in a hurry. Conversely, for sellers who need time to move, offering flexibility on deadlines can make all the difference;
   
4. Personalize the approach: a letter of intent or message accompanying the offer can create a personal connection with the seller, demonstrating sincere interest in the property and the projects envisaged;
   
5. Be responsive: in a tight market, speed is of the essence. Buyers who visit the property quickly, make an informed decision and submit their offer without delay have an advantage.
   

How to write a clear, solid offer to purchase?

Drafting a well-structured offer to purchase a property is a crucial step in securing a real estate transaction and avoiding misunderstandings. A clear, complete and legally sound offer helps convince the seller of the buyer's seriousness, while limiting the risk of litigation. Here are the essential elements to include and the best practices for formalizing an effective offer to purchase.

Essential elements of an offer to purchase

1. The identity of the parties: the offer must specify the full names and contact details of the buyer and, if possible, the seller. This clearly identifies the parties involved in the transaction;
   
2. Precise description of the property: the property in question must be accurately described, including the address, main features (type, surface area, floor, annexes such as cellars or parking lots), and the cadastral reference or lot number for condominiums, if available;
   
3. The proposed price: the amount offered must be clearly indicated in euros, specifying whether the offer is “at the posted price” or a negotiated amount;
   
4. Conditions precedent : these clauses secure the offer in the event of unforeseen circumstances. For example:
   

- Obtaining a bank loan within a given timeframe.

- Absence of servitudes or serious anomalies in the technical diagnostics.

1. The validity period of the offer: an offer to purchase is not valid indefinitely. It is important to specify the period during which the offer remains binding (generally between 7 days).
   
2. Payment terms: specify whether the property will be financed by a mortgage or cash payment. In the case of financing, include a certificate of financing or an agreement in principle from the bank to reassure the seller.
   
3. The buyer's signature: a signed offer carries more legal weight. In the event of a dispute, this formalization constitutes proof of the buyer's intention.
   

How to formalize an offer to purchase?

Put the offer in writing: an oral offer to purchase has no legal value. It must be drawn up in writing, dated and signed by the buyer. This can be in the form of a handwritten letter, an electronic letter or a standard form provided by a real estate agent.

The offer to purchase: a decisive but not definitive step

Theoffer to purchase is a key phase in a real estate transaction, enabling the buyer to express his interest while initiating negotiations with the seller. While it may seem binding, it is neither a promise to sell nor an absolute guarantee of closing the deal. For it to be effective and legally sound, it must be carefully drafted and include clear elements.

Buyers and sellers alike need to bear in mind that this stage, although structuring, remains preliminary: the compromis or promesse de vente represents the definitive commitment. By mastering the subtleties of the offer to purchase, both parties can secure their interests while moving forward with serenity towards the final signature.

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