Foreword: the function of the transcription of the preliminary

The preliminary contract for real estate purchase and sale represents one of the most common negotiating instruments in Italian contract practice. With it, the parties mutually obligate each other to enter into a future final contract having transactional effects. However, the long time interval that often elapses between the stipulation of the preliminary and the definitive contract exposes the promising buyer to significant risks: the promising seller could alienate the property to third parties, set up mortgages or suffer enforcement actions by its creditors.

To protect the promissory purchaser from such risks, the legislature introduced with Article 2645-bis of the Civil Code the possibility of transcribing the preliminary contract, giving this formality a peculiar reservation effect. The rule stipulates that preliminary contracts having as their object the conclusion of contracts for the transfer or constitution of real property rights must be transcribed if they result from a public deed or from a private deed with a notarized or judicially ascertained signature.

The requirements of the promising seller

From the perspective of the promising seller, the transcription of the preliminary contract represents a significant constraint on the free disposition of the property. Once the preliminary contract is transcribed, the seller’s ability to dispose of the property is restricted, as any subsequent dispositive acts would be unenforceable against the promissory purchaser if the latter transcribes the final contract within the timeframe prescribed by law.

However, the transcription of the preliminary may also meet the needs of the promising seller. First, it constitutes a form of guarantee of fulfillment on the part of the promissory buyer, who, having made public his or her intention to purchase, will find it difficult to escape the obligation assumed. Secondly, the transcription of the preliminary may be a means of protection for the seller who has already delivered the property to the promissory buyer, enabling him to prove the existence of a legal title legitimizing such delivery.

The promising seller also has an interest in the timely cancellation of the transcription of the preliminary agreement if the contract is terminated or loses effect, in order to restore the full legal availability of the property and its marketability. As pointed out by Court of Monza Judgment No. 2619/2024, the permanence of a transcript relating to a contract that has now been terminated constitutes a concrete prejudice to the owner of the property.

The requirements of the promissory purchaser

For the promissory purchaser, the transcription of the preliminary contract constitutes the fundamental instrument of protection against the risks arising from the failure to acquire ownership immediately. In fact, Article 2645-bis, paragraph 2, of the Civil Code stipulates that “the transcription of the final contract or of any other deed that in any case constitutes the execution of the preliminary contracts referred to in paragraph 1, or of the judgment granting the application for specific performance of the aforementioned preliminary contracts, prevails over the transcriptions and registrations made against the promisor after the transcription of the preliminary contract.”

This reservation effect, as clarified by established case law, extends not only to transcriptions of subsequent deeds of disposition, but also to mortgage registrations and transcriptions of foreclosures. Brescia Court Judgment No. 4733/2024 reiterated that “the transcription of the preliminary contract prevents the rights of the promissory purchaser from being affected by any other sales of the same property by the promisor, by any other act performed by the seller, or by any fact suffered by the promisor.”

Therefore, the promissory purchaser has a primary interest in the timely transcription of the preliminary contract and that the transcription is carried out correctly, complying with the formal requirements of the law. As pointed out by Court of Milan Judgment No. 6500/2025, an indispensable prerequisite for transcription is that the contract results from a public deed or private writing with a notarized or judicially ascertained signature.

The time limits of the reservation effect

The effectiveness of the transcription of the preliminary contract is not unlimited in time. In fact, Article 2645-bis, paragraph 3, of the Civil Code stipulates that “the effects of the transcription of the preliminary contract cease and are considered as never produced if within one year from the date agreed between the parties for the conclusion of the final contract, and in any case within three years from the aforementioned transcription, the transcription of the final contract or of another act that otherwise constitutes the execution of the preliminary contract or of the court application referred to in Article 2652, first paragraph, number 2) is not executed.”

Therefore, the rule provides for a dual term: a one-year term, running from the agreed date for the stipulation of the definitive contract, and a three-year term, running from the transcription of the preliminary contract. Both terms are peremptory in nature and respond, as clarified by the judgment of the Court of Catania No. 4290/2025, “to the same ratio of protection of interests of a general nature, represented by the twofold need to avoid, on the one hand, that the property may be taken away by the promising seller indefinitely, through a preliminary of convenience, from the generic patrimonial guarantee under Article 2740 of the Civil Code, and, on the other hand, that it is realized, in fact, the removal of the property from free circulation.”

Case law has made it clear that the three-year term runs from the transcription of the first preliminary contract and cannot be extended by the parties through the stipulation and transcription of supplementary or amending deeds. As affirmed by the same judgment of the Court of Catania, “the extension of the term for the conclusion of the final contract, although freely agreeable between the parties, can only give rise to reservative effects enforceable against third parties if transcribed before the expiration of the annual term and provided that the transcription of the final or the court application is in any case within the three-year term from the transcription of the first preliminary.”

The unnecessary expiration of the three-year period results in the automatic termination of the reservation effects of the transcription, which are considered as never having been produced, without the need for formal cancellation of the transcription itself. This implies that the promissory purchaser loses all protection against third parties who have acquired rights to the property after the transcription of the preliminary.

The non-performance of the preliminary contract

When one of the parties fails to fulfill its obligations under the preliminary contract, the other party may avail itself of the remedies provided by the general rules of contracts. In particular, the fulfilling party may seek termination of the contract for non-performance under Article 1453 of the Civil Code, or it may exercise the right of withdrawal provided for in Article 1385 of the Civil Code on the subject of the down payment.

In the event that it is the promising seller who defaults, the promising buyer may either seek termination of the contract with return of twice the deposit paid, or take action for specific performance of the obligation to contract under Article 2932 of the Civil Code, obtaining a judgment producing the effects of the unfinished contract.

If, on the other hand, it is the promising buyer who fails to perform, the promising seller may retain the deposit paid as a penalty and seek termination of the contract. As pointed out in Milan Court Judgment No. 5294/2025, the penalty clause included in the preliminary contract “performs a function, not so much as a penalty-punishment, but as a lump-sum compensation for damages, being intended to strengthen the contractual bond and to establish in advance the performance to which one of the contracting parties is obliged if he or she defaults.”

A particular hypothesis of non-performance is that of so-called anticipated non-performance, which occurs when a party expressly declares that it will not or cannot fulfill the obligation undertaken. As clarified by the judgment of the Court of Brescia No. 4733/2024, “the declaration of the promising seller that he is unwilling or unable to fulfill his obligation to enter into the final contract within the agreed time limit integrates anticipated default, which is suitable for the basis of a claim under Article 2932 of the Civil Code.”

Of particular relevance is the hypothesis in which the promising seller has obligated himself to cancel prejudicial transcripts encumbering the property prior to the stipulation of the definitive agreement. As affirmed by Cagliari Court Judgment No. 1296/2024, this obligation constitutes “a result guarantee obligation, by virtue of which the promisor is liable for the failure to achieve the promised result even when this does not depend on his willful misconduct or fault, the risk having been assumed that the third party will not give consent to the cancellation.”

The cancellation of the transcript of the preliminary

The issue of cancellation of the transcription of the preliminary contract assumes particular practical relevance and has complexity profiles that deserve in-depth analysis. Article 2668 of the Civil Code, in its fourth paragraph, states that “the transcription of preliminary contracts shall be cancelled when the cancellation is duly permitted by the parties concerned or is judicially ordered by a final judgment.”

Thus, the rule provides two alternative ways to obtain the cancellation of transcription: the consent of the parties concerned or a court order that has become final. As clarified by the ruling ofthe Court of Monza No. 2619/2024, “the cancellation of the transcription of the preliminary contract requires, pursuant to the last paragraph of Article 2668 of the Civil Code, the consent of the parties concerned or a judicial decree that has become final.”

Consensual cancellation

Consensual cancellation is the simplest and quickest way to remove the transcript of the preliminary. It requires the consent of all parties concerned, which must be manifested in the form required for transcription, i.e. by public deed or private deed with a notarized signature. The consent must be submitted to the Registrar of Land Records together with the request for removal.

In practice, consensual cancellation is often agreed upon at the same time as the termination of the preliminary contract, by entering into a deed of mutual resolutory consent that expressly provides for the obligation of one party to give consent to the cancellation of the transcript. If this obligation is not fulfilled voluntarily, the party concerned may take legal action to obtain an order replacing the missing consent.

As pointed out in Catania Court Judgment No. 1408/2025, “where the parties have agreed on the obligation of the promissory purchaser to give assent to the cancellation of the transcription of the preliminary contract in the event that the condition precedent is not fulfilled, the failure to fulfill this obligation entitles the promising sellers to judicially request the cancellation of the transcription. The court, having ascertained incidentally the non-fulfillment of the condition precedent, may directly order the Registrar of Land Registries to proceed with the cancellation of the transcript, substituting itself for the defaulting party’s failure to give consent.”

Judicial cancellation

When the other party’s consent cannot be obtained, cancellation of the transcript can only be ordered by a final judgment. This implies that the interested party must institute a court of ordinary cognizance, obtain a favorable ruling, and wait for the judgment to become final before the cancellation can be made.

The need for res judicata constitutes an element of rigidity in the system, which can lead to long delays and significant costs. However, this requirement responds to the need to ensure the certainty of legal relations and the stability of real estate publicity, preventing transcripts from being cancelled on the basis of non-final orders that are subsequently reformed on appeal.

Case law has clarified that the order of cancellation can be contained in the same judgment that declares the termination of the preliminary contract or ascertains its ineffectiveness. As stated in Catanzaro Court Judgment No. 420/2025, “Pursuant to Article 2668 paragraph 2 of the Civil Code, the cancellation of the transcript must be judicially ordered if the trial is extinguished due to waiver or inactivity of the parties. Therefore, there is a party’s interest in obtaining a judicial order to cancel the transcript in the absence of a previous order ordering such cancellation and in the absence of the express consent of the party in whose favor the transcript is executed.”

The annotation in lieu of cancellation

One profile of particular interest concerns the distinction between cancellation and annotation of the transcript. Case law has made it clear that in the case of termination of a transcribed preliminary contract, the appropriate remedy is not the cancellation of the transcript but the annotation of the termination in the margin of the original transcript.

As affirmed by the Court of Prato Judgment No. 261/2025, “the transcription of the preliminary deed is not susceptible to be cancelled by order of the Judge, since Article 2668 of the Civil Code covers only the claims set forth in Articles 2652 and 2653. In cases where a transcribed deed is declared null and void or is annulled, terminated, rescinded or revoked, or is subject to a resolutive condition, on the other hand, the declaration of nullity, annulment, termination, rescission, revocation and fulfillment of the condition are subject to annotation in the margin of the transcription of the deed pursuant to Article 2655 of the Civil Code.”

This distinction has significant practical relevance, since annotation, unlike cancellation, leaves a trace of the contractual event in the property records, enabling third parties to reconstruct the legal history of the property. Annotation can be performed on the basis of agreement of the parties or on the basis of a judgment showing one of the facts provided for in Article 2655 of the Civil Code.

The automatic termination of the effects

A special case is that of the automatic termination of the effects of transcription due to the expiration of the terms provided for in Article 2645-bis, paragraph 3, Civil Code. In such a case, as already pointed out, the effects of transcription cease and are considered as never produced, without the need for any formal cancellation.

However, even in this case it may be appropriate to obtain the cancellation of the transcription for reasons of clarity and certainty of the real estate records. As affirmed by Court of Milan Ruling No. 5294/2025, “the transcription of the preliminary contract pursuant to Article 2645-bis of the Civil Code automatically ceases its reservation effects after three years from the transcription, without the need for formal cancellation, since the judge may still order its cancellation ex officio for reasons of public interest once the termination of the title has been ascertained.”

Special hypotheses: bankruptcy and judicial liquidation

Special rules are provided for when the promising seller is subject to insolvency proceedings. Article 173 of the Code of Business Crisis and Insolvency provides that the liquidator may dissolve the preliminary contract of real estate sale, even when the promising buyer has filed and transcribed an application for specific performance under Article 2932 of the Civil Code.

However, the rule provides for an important exception: the transcribed preliminary contract is not dissolved if it relates to a property for residential use intended to constitute the principal residence of the promissory purchaser or his relatives and relatives-in-law within the third degree, or to a property for nonresidential use intended to constitute the principal place of business of the promissory purchaser, provided that the effects of the transcription have not ceased prior to the date of the opening of the judicial liquidation.

In the event of dissolution of the preliminary contract in the bankruptcy proceedings, the promissory purchaser is entitled to assert his claim in the liabilities and enjoys the privilege provided for in Article 2775-bis of the Civil Code, provided that the effects of the transcription of the preliminary contract have not ceased prior to the date of the opening of the judicial liquidation.

Conclusions

The transcription of the preliminary contract of real estate sale and purchase is a fundamental instrument of protection for the promissory purchaser, enabling him to oppose to third parties his right to purchase the property. However, this tool is subject to strict time limits and requires compliance with precise formal requirements.

Breach of the preliminary contract may give rise to various legal consequences, which vary depending on the defaulting party and the contractual terms agreed upon. In any case, the termination or ineffectiveness of the preliminary contract necessitates the cancellation or annotation of the transcript in order to restore the full legal availability of the property and the certainty of the property records.

The cancellation of the transcript can be done by consent of the parties concerned or by a court order that has become final. The choice between the two methods depends on the willingness of the other party to consent and the need to obtain a judicial determination of the fate of the preliminary contract.

Ultimately, the regulation of the transcription of the preliminary contract requires a careful assessment of the opposing interests of the promising seller and the promissory buyer, balancing the latter’s need for protection with the need to prevent the property from being indefinitely removed from the free movement and general asset security of the promising seller.