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If compromise and deed differ

It often happens that one of the parties finds that the clauses in the notarial deed of sale differ from what is stated in the compromise. How can you avoid that? Does one of the two documents take precedence over the other? Does a provision that is in the compromise and not in the deed still apply? What rules apply when both documents contain conflicting provisions? Can you consider holding the civil-law notary liable afterwards?


If you buy or sell a property, the real estate agent often draws up the compromise. The broker usually starts from a standard document from his professional federation. The parties often also add a number of specific provisions, depending on what they have agreed with each other. If the civil-law notary then draws up the deed, the deed may sometimes deviate (whether or not significantly) from the content or formulations in the compromise, because the civil-law notary often uses its own standard text. As a result, it is sometimes difficult for a layman to estimate exactly what you commit yourself to in the deed. In addition, it sometimes happens that you have to conclude that a number of specific provisions from the compromise are simply not included in the draft deed.


How to avoid? 

You can avoid a lot of problems by calling on the civil-law notary who also draws up the deed before drawing up the compromise (or the purchase and sale promise). Otherwise, at least explicitly ask the notary to strictly adhere to what is stated in the compromise when drawing up the deed. Although that is not always obvious, it is also important to thoroughly go through the draft of the notarial deed. Be sure to check whether the terms and conditions for the purchase or sale that are important to you are stated (e.g. specific clauses regarding matters that the seller still needs to put in order, guarantees from the seller, ...). If necessary, ask the notary to amend the deed. Due to the complexity, it is sometimes advisable to also have the compromise and the deed read by a lawyer.



Contrary to popular belief, it is not the case that a compromise would be less valuable than the notarial deed or that the compromise would be just a provisional document that no longer counts once the deed has been completed. Both documents are valid agreements and have the same value between the parties who entered into them. In principle, the notarial deed does not simply replace the previously drawn up private agreement.



If the civil-law notary forgets to adopt a number of agreements from the compromise, then you usually have good arguments to argue that those agreements will continue to apply, unless of course both parties agree that this is not the case. The fact that those agreements are not included in the notarial deed does not mean that they expire. If the other party claims otherwise, it will have to prove it, e.g. with correspondence dating from between the private deed and the notarial deed, showing that it was the intention of the parties to cancel the agreement in question. If additional agreements are stated in the notarial deed that were not included in the compromise, these will in principle also apply. After all, the counterparty can say that by signing the notarial deed you confirmed your agreement with the additional agreements. In addition, there is sometimes a clause in the notarial deed that indicates that the deed forms a whole with all previous agreements concluded between the parties with regard to the sale in question.



Notaries sometimes dare to stipulate in their deed that the notarial deed takes precedence in the event of a conflict between the private and the notarial deed. Such a provision is in principle also valid without further ado. If you do not want this clause to apply, you must ask the notary to delete it. If the agreements do not determine which agreement prevails, it is important to find out the intention of the parties. The argument that the notarial deed dates from after the compromise can be an element in this, but is not in itself decisive. It can then also be examined, for example, whether after the compromise there have been consultations about the provision that has been amended in the meantime, and so on.


Liability notary

If the civil-law notary included a clause in the notarial deed that deviates from the private contract, you could consider holding him liable for this. After all, the civil-law notary has a duty to advise and to provide information. In practice, however, this will not always be easy. The civil-law notary will probably state that you received the draft deed in advance and that he read the deed and provided the necessary explanation. Moreover, even if you could already prove an error, you will still have to prove your damage.


A notarial deed for the sale of a property has no more value than the compromise. Make sure that both texts contain the same provisions. If one of the two documents contains additional agreements or obligations, you are in principle also bound by them. If the compromise and the deed contain a contradiction, then the intention of the parties must be found out, with all the difficulties that entails. Be sure to pay attention when the notarial deed states that it takes precedence, in case there are differences with previous agreements. Consider having that clause deleted. If necessary, call on a lawyer to check to what extent the deed correctly reflects the provisions of the compromise, if the degree of deviation between the two texts makes it difficult for you to correctly assess the scope of the differences. Making the civil-law notary liable afterwards for contradictions or differences between the deed and the compromise will not always be easy.


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