A deal is a deal—or is it?

For many people, selling a home is a major life event. It’s not uncommon for a seller to have second thoughts or begin to doubt the terms of the agreement after signing a purchase contract. But to what extent can a seller renege on the terms of the agreement? Is it still possible to withdraw from the sale?

The pre-signing phase: offer, acceptance, and rescission

Before a purchase agreement is signed or an offer is accepted in any other way, the seller is in a relatively unencumbered position. In principle, an offer to sell can then be revoked. An offer that has been made can therefore be withdrawn. This is only possible as long as the offer has not yet been accepted by the buyer and there is no irrevocable offer or agreed acceptance period. This is governed by Article 6:219 of the Civil Code (“BW”).

Once the buyer accepts the offer, a (purchase) agreement is formed and the right to withdraw expires. However, there is an important caveat to the foregoing.

Requirement for written form

When buying or selling a home, the written form requirement applies. This is stipulated in Article 7:2(1) of the Dutch Civil Code. Therefore, if you have purchased a home through a verbal agreement, that purchase is generally not legally enforceable. You might therefore think: as long as there is no signed agreement, there is no valid purchase agreement. But what if the parties have reached an agreement via email or WhatsApp? Case law has established that a written purchase agreement constitutes a “private deed” within the meaning of Article 135 of the Code of Civil Procedure (“Rv”). An email or WhatsApp message does not constitute a signature within the meaning of Article 135 Rv, and therefore does not satisfy the written form requirement of Article 7:2(1) BW. In other words: as long as the purchase agreement has not been signed, no valid sale is concluded.

 On August 27, 2025, the Court of First Instance of Curaçao reaffirmed the foregoing. The court ruled as follows:‘The fact is that there was no written document—no deed signed by the parties—as referred to in Article 7:2 of the Civil Code. Consequently, even if there was full agreement, the sale was vulnerable to annulment by one of the parties.’

 In that same ruling, the General Court also held that the absence of a written agreement would be acceptable only under very exceptional circumstances.

 The written form requirement thus protects both the buyer and the seller. Neither party can enforce the sale as long as there is no signed purchase agreement. Consequently, the seller cannot be compelled to cooperate in drafting and signing a written agreement.

After Signing: Commitment, Termination, and the Limits of Regret

Once the contract is signed, the seller’s position changes significantly. The purchase agreement is then considered concluded and is also binding. The seller cannot simply back out at that point.

Termination of the agreement is only possible if the buyer fails to fulfill their obligations, for example, by failing to pay the security deposit or by refusing to cooperate with the transfer. Therefore, if the buyer fulfills their obligations in good faith, the seller is obligated to cooperate with the transfer.

If the buyer fails to fulfill his or her obligations, the buyer must first be given notice to fulfill those obligations within a reasonable period of time. Only if the buyer fails to do so within the specified period is the buyer in default, and the seller may terminate the agreement. However, the parties may agree otherwise in the purchase agreement. It is therefore of great importance to carefully review such provisions when drafting the purchase agreement. 

If a seller withdraws from the contract without a valid reason, this constitutes a breach of contract. The buyer may then claim damages under Article 6:74 of the Dutch Civil Code and, if applicable, claim a contractual penalty.

How can the seller protect themselves?

Although the law establishes clear guidelines, there is considerable flexibility within the purchase agreement. Sellers can significantly strengthen their position by including specific provisions, such as:

· A clear description of the condition of the item being sold.

· A penalty clause in the event that the buyer fails to fulfill their obligations.

· Termination provisions.

· Including deadlines with consequences (such as for payment or delivery).

By including such provisions in the purchase agreement, risks can be mitigated and the likelihood of legal disputes is reduced.

Practical considerations

In practice, many disputes arise due to unclear agreements or the lack of a written record. Sellers are therefore advised to carefully and fully document all agreements in writing, stay alert to important deadlines, communicate promptly and in writing when problems arise, and, of course, seek legal advice when in doubt.

Conclusion

A seller who changes their mind about a purchase agreement has limited legal options for withdrawing from it. Before signing the purchase agreement, withdrawal is often still possible, but after signing, the seller is generally bound by the agreement. The requirement for a written agreement in real estate transactions provides significant protection in this regard. As long as the agreement has not yet been signed, the sale can still be voided. Only if the buyer fails to fulfill their obligations and is in default can termination be an option.

However, the best way for the seller to protect themselves is to establish clear, written, and legally sound agreements in advance. This helps prevent unpleasant surprises and conflicts.

Careful preparation is the difference between regret and confidence.

Want to learn more? Email us at terpstra@stlegalsolutions.com or call us at +5999 5121325