Recognition of signatures in the promissory contract for the purchase and sale of real estate

One of the most characteristic contracts of real estate law is the Promissory Contract for the Purchase and Sale of real estate, which takes on special relevance when the parties agree on the assumptions of the sale of the property in question.

The purpose of this contract is to define the conditions and specificities of the business, such as, inter alia, the price, the goods in question, the relevant deadlines, guarantees and the delivery of the keys (traditio rei).

In the case of the promise of purchase and sale of real estate, the law is clear regarding its underlying requirements, particularly with regard to the form to be adopted, which means that the promissory contract will only be valid if it is duly signed by both parties that bind it and with their respective signatures notarized.

With regard to the signatures affixed to the document, Article 410 of the Civil Code
Portuguese, which succeeded the famous "Seabra Code" and which came into force on 1 June 1967, and whose provision, in question, appears later in 1980, provides in its paragraph 3, the following:

"(...) 3 - In the case of a promise relating to the conclusion of a onerous contract for the transfer or constitution of a right in rem over a building, or an autonomous fraction thereof, already built, under construction or to be built, the document referred to in the preceding paragraph must contain the face-to-face recognition of the signatures of the promisor or promisor and the certification of the building. o, by the entity that carries out that recognition, of the existence of the respective use or construction license; However, the party who promises to transfer or create the right can only invoke the omission of these requirements when it has been culpably caused by the other party. (...)"Now, it is clear that the legislator intended to guarantee, with a very high degree of unequivocality:

1) The identity and powers of the signatories and 2) The existence of documentation essential to the completion of the final business. One of the objectives of this rule is to prevent a property that does not have a license from being the object of the business without the knowledge of the promising buyer or to prevent the so-called "clandestine construction". The lack of this recognition of signatures has legal consequences, in this case in the form of invalidity (called mixed), however, it may be remedied later with the obtaining, for example, of the building or housing license.

In these terms, the jurisprudence is unanimous, with regard to article 410, paragraph 3, of the Civil Code, which: "(...) establishes a rule of a mandatory nature that aims to protect, in particular, the position of the promising buyer, given the order of magnitude of the patrimonial interests involved, requiring the face-to-face recognition of signatures (duly authenticated) in the text that formalizes the promissory contract as a way of raising awareness and awareness, by its solemnity, of the importance of the act and the duty of the subscriber to pay attention, with all seriousness and rigor, to every clause to which he is thus bound (and which in the overwhelming majority of cases is (pre)prepared and proposed by the promising seller)".

Often and in practical life it is common for the parties to question the possibility of introducing a clause excluding that assumption and that would prevent them from later arguing the annulment of the contract, however, it is important to verify the validity (and consequences) of this type of clauses.

Now, according to the same case-law, mentioned above: "(...) since the segment of the rule in question is of an imperative nature and of public interest, there is no point in the inclusion in the text of the promissory contract of a clause, allegedly consensual, which proposes to produce the contradictory practical effect of making non-mandatory a formality that the law expressly imposes as a matter of urgency. such. IV - The assertion, in the same clause, that such invocation of nullity will automatically constitute conduct that qualifies as an abuse of rights is completely inappropriate, insofar as such a legal figure, of generic provision, depends absolutely and decisively on the concrete and case-by-case analysis of all the particularities of the conduct of each of the contracting parties, it cannot be generalized, in an abstract way, based on the blind operation of any contractual clause. V – Therefore, under the terms of article 220 of the Civil Code, the contractual clause of a promissory contract that stipulates the waiver of any of the promisors to invoke the nullity provided for in article 410, paragraph 3, of the Civil Code is null and void. (...)"Nevertheless, it is considered an abuse of rights, a case in which the parties waive the aforementioned formality (the recognition of signatures), but accept the conditions of the business, never having argued the validity of the contract over the months that followed the signing of the contract and only doing so because it suits them for a certain cause. Finally, it is important to clarify that, despite the legislative introductions resulting from the new legislative package, called SIMPLEX, with regard to urban planning and in particular, the elimination of the obligation to present the authorisation to use the act of transfer of ownership of urban buildings, the aforementioned paragraph 3 of article 410 of the Civil Code remains in force, under the same terms, and no adaptation or exclusion has been foreseen.

Therefore, the license of use or construction must still be presented, for the act of notarizing signatures in a promissory contract for the purchase and sale of a property.

Sofia Távora Seruya
Lawyer

Martinez-Echevarria Ferreira Advogados
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