Can I get the deposit back if the deal falls through?
It depends on the type of sum and who breaks the agreement. When you pay a sum on signing an agreement (e.g. buying a house), it can be a deposit (caparra) or a down payment (acconto), with very different effects. With a confirmatory deposit (art. 1385 of the Civil Code): if you, who paid it, are in breach and the deal falls through through your fault, you lose it; if instead the other party is in breach (who received it), they must return double the deposit. A down payment, instead, is a simple advance on the price: if the deal doesn't go through, it's returned (or offset), without the deposit's penalty function. There's also the penitential deposit, which is the price of a right of withdrawal: whoever withdraws loses (or returns) that sum, with no other consequences.
📋 The rules
- Confirmatory deposit: whoever pays it and withdraws loses it
- If the one who received it is in breach: returns double
- Down payment: simple advance, always refundable/offsettable
- Penitential deposit: price of the right of withdrawal
- What matters is how the sum is qualified in the contract
🔓 Exceptions
- The non-breaching party can instead seek performance of the contract and damages
- If not specified, the sum may be interpreted as a down payment
- Abusive or disproportionate clauses: challengeable in consumer contracts
⚠️ Penalties & fines
The qualification of the sum is decisive, so it must be clearly written in the contract ("as a confirmatory deposit" or "as a down payment"). With the confirmatory deposit, in case of breach, the faithful party can keep the deposit (or demand double), or waive this effect and seek performance of the contract and full compensation. If the sum is a down payment, it's returned when the deal doesn't go through. In a dispute, what the contract says counts: always keep receipts and written agreements, and have the nature of the sum clarified before paying it.
📎 Official sources
- Normattiva · Civil Code (confirmatory deposit, art. 1385) →
- Normattiva · Civil Code (penitential deposit, art. 1386) →
- Ministry of Enterprise and Made in Italy · Consumer protection →
❓ Frequently asked
What's the difference between deposit and down payment?
The confirmatory deposit has a guarantee function: if whoever paid it is in breach they lose it, if the one who received it is in breach they must return double. The down payment is instead a simple advance on the price, to be returned or offset if the deal doesn't go through.
If I change my mind do I lose the deposit?
With the confirmatory deposit, if the deal falls through through your breach, yes: you lose it. If instead the other party breaks the agreement, they must return double the deposit. With the penitential deposit, whoever withdraws simply loses that sum, with no other consequences.
Can I get the down payment back if the deal doesn't go through?
Yes. The down payment is a simple advance on the price and doesn't have the deposit's penalty function: if the contract doesn't go through, it's returned (or offset). So it's important the contract clearly specifies whether the sum is a down payment or a deposit.
How do I know if it's a deposit or down payment?
What matters is how the sum is qualified in the contract: it must be expressly stated "as a confirmatory deposit" or "as a down payment". Without a clear qualification, the sum is generally interpreted as a down payment. Have the nature clarified before paying it.
Can I still demand the contract instead of the deposit?
Yes. The non-breaching party can, instead of keeping the deposit (or demanding double), waive this effect and seek performance of the contract and full compensation for the damage suffered. It's a choice for the party faithful to the agreement.
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