Promissory Contract: The Precautionary Arrest Order

On 17 June 2025, the Supreme Court of Justice unanimously ruled that the existence of evidence such as the prolonged inaction of the promissory seller with regard to the steps it was obliged to take, its incontactability and the public announcement of the sale of the building that was the subject of the promissory contract are sufficient to justify, on the part of the promissory buyer, the fear of losing the asset guarantee of its credit.

In this case, the parties entered into a promissory contract for the purchase and sale of a building to be built, with a date for the deed of sale of 31 August 2025.

The promissory purchaser instituted a precautionary seizure order against the promissory seller, requesting the seizure of the building where the fractions promised to be sold would be built. It was proved that the building had not undergone any works since the contract was signed, that the promissory purchaser had paid the price in full as a down payment and payment in principle and that the promissory seller was not contactable.

The promisor-buyer invoked the breach of the promissory contract and the lack of sufficient assets in the promisor-seller's estate to guarantee the double refund of the down payment, to which she is entitled.

It so happens that, in a previous decision, although it considered the probability of the existence of the claim, the precautionary seizure order was judged to be totally unfounded because it was considered that the fair fear of the loss of the asset guarantee had not been demonstrated.

The Supreme Court of Justice thus assessed the existence (or not) of a justified fear of loss of the asset guarantee and the specific fulfilment of the indeterminate concept of "justified fear", namely the need to prove the non-existence / insufficiency of other assets of the debtor in order to verify such fear.

The ruling states that "a reasonably prudent person, faced with the same indications, namely the prolonged inaction of the seller, the seller's unreliability, the announcement of the sale of the building, the lack of knowledge of other assets of the seller, would fear, in the same way that the buyer claims to fear, the impossibility of realising his credit at the expense of the seller's assets".

The ruling also emphasises the fact that the promissory vendor is a commercial company, an entity that can be set up and dissolved easily, understandably generating in the promissory purchaser the conviction that her claim could be irretrievably unsatisfied.

The well-founded fear of the loss of the asset guarantee can result either from the existence of signs that the debtor is becoming insolvent, preventing him from guaranteeing his credits, or in the process of dissipating his assets through the sale of assets, thus making it difficult for creditors to satisfy their credit, or even from the difficulties that creditors may have in contacting debtors.

All these indications are legitimate for concluding that the debtor is evading the fulfilment of his obligations and is intentionally placing the creditor in a situation of fragility and danger.

Thus, the commission of acts or assumption of attitudes that give rise to the suspicion that the debtor intends to withhold his assets from creditors makes the fear of loss of the patrimonial guarantee of the credit justifiable.

Furthermore, it should be noted that the judgement in question considers that proof that the assets to be seized are the only asset guarantee and, consequently, that there are no other assets to satisfy the claim, is not legally required.

In other words, what is relevant for an action of this nature, in which the probative activity required of the interested party is conditioned by the framework of a precautionary procedure, which is of an urgent nature, is that the fear is well-founded or justified, and the facts likely to be externalised are varied.

We therefore believe that, between the loss suffered by the promissory vendor as a result of the temporary immobilisation of assets and the possible irrecoverable loss suffered by the promissory purchaser as a result of the rejection of a precautionary seizure order, the revocation of the previous decision by the Supreme Court of Justice is justified, thus enabling the seizure of the building which is the subject of the promissory contract to be granted.

Disregarding this hypothesis and starting, without further ado, to reject it seems inappropriate given the circumstances of the specific case, and could apparently leave the applicant (possible creditor) in a delicate situation.

Weighing up the interests that are at stake requires the interpreter to find a balanced solution, which is to grant the injunction at this stage of the precautionary process, considering that the aggravating parties' fear of losing the patrimonial guarantee of their claim is justified.