Confirmatory earnest money: An applied analysis in the real estate sector and a critical study of unfair clauses in sales contracts

Abstract

The present article analyzes the application of confirmatory earnest money (arras confirmatorias) in the Peruvian real estate sector and critically evaluates the inclusion of abusive clauses in property purchase and sale agreements across the national real estate market. Through a qualitative approach and a critical-legal method, classical Peruvian Civil Law theory—which bases contracts on the autonomy of the will, equality, and reciprocity between parties—is contrasted with the contemporary commercial practices of construction companies, determining that confirmatory earnest money ratifies the perfection of the contract in both preparatory and definitive stages, activating a bilateral compensatory function in the event of default. The results demonstrate the existence of a marked contractual asymmetry due to the imposition of adhesion contracts that exclusively transfer the transactional risk to the consumer. Document analysis of actual contracts reveals critical legal contingencies, such as the unilateral loss of earnest money, cumulative confiscatory penalties, the sale of ideal shares without immediate delivery of possession, and the advance waiver of legal actions. Given this scenario of legal distortion and unjust enrichment caused by regulatory gaps, the research concludes with the necessity of establishing technical guidelines that enforce a rule of mandatory symmetry and equitable penalties, thereby guaranteeing the principle of good faith and contractual balance in the residential market.