Earnest money deposits and the seller's passive breach: buyer can claim the double amount (Spanish Supreme Court 178/2026)

A classic frontier in Spanish real estate contracts

Judgment 178/2026 of 9 February of the Spanish Supreme Court, 1st Chamber (ECLI:ES:TS:2026:572), reported by Justice M.ª Ángeles Parra Lucán, settles a classic question in Spanish conveyancing: the dividing line between withdrawal under earnest-money clauses (Art. 1454 of the Spanish Civil Code – CC) and termination for breach (Art. 1124 CC).

> Key takeaway: a seller cannot use qualified passivity as a shield against the earnest-money regime. When the seller's behaviour shows an unequivocal intent not to perform, the buyer can terminate and recover double the deposit.

The facts: €10,000 deposit and a frozen seller

A buyer paid €10,000 as *arras penitenciales* (penitential earnest money) to acquire a property in Laredo (Cantabria). Execution of the public deed was conditional on the seller completing pending legal steps linked to the property's registry title (the property was co-owned in quarters and encumbered).

The seller did not push those steps forward. The judgment uses the words "absolute passivity" — not a mere delay. Faced with this inaction, the buyer terminated the contract by burofax (3 March 2016) and claimed back the deposit. The claim for double the deposit came later, first in conciliation and then in the lawsuit.

The procedural journey: three different views

• Court of First Instance No. 1 of Getxo (30 Sept 2019): dismissed. There was a breach but no formal withdrawal, so Art. 1454 CC did not apply.
• Provincial Court of Bizkaia, Section 5 (5 Nov 2020): found terminating breach, but limited the order to refunding the €10,000 paid, with no doubling.
• Supreme Court, 1st Chamber (9 Feb 2026): set aside the appeal judgment and ordered the seller to refund €20,000, the doubled deposit, plus statutory interest from the filing of the claim.

The Supreme Court's reasoning

The Chamber warns that the appeal court's reading would lead to an unacceptable outcome: the seller who expressly withdraws must refund the doubled deposit, while the one who stays silent, breaches and forces the buyer to litigate would only refund what was received. The law would treat the more reticent party better. Not a reasonable view.

The judgment does not confuse withdrawal and breach:

• Earnest-money clauses (Art. 1454 CC) allow lawful withdrawal from the contract, without cause, by losing or refunding double the deposit. The amount cannot be moderated by the court (STS 12 March 1965, ECLI:ES:TS:1965:3800).
• Breach (Art. 1124 CC), by contrast, violates the contractual content.