Practical guide

How to draft a notice of withdrawal (recesso) and retention of earnest money (caparra confirmatoria) with AI

4 min read · Updated September 2026 · Editorial oversight: Avv. Federico Papa

Exercising the right of withdrawal (recesso) when an earnest money deposit (caparra confirmatoria) is present requires a clear declaration of intent and a precise qualification of the counterparty's breach. This notice, if correctly structured, allows for the termination of the contract and the retention of the amount received without proving actual damages in court. Using edit.legal, practitioners can generate documents aligned with the latest orientations of the Supreme Court of Cassation.

In brief

Under Article 1385 of the Italian Civil Code, if a breach occurs, the non-breaching party may withdraw (recedere) and retain the earnest money (caparra confirmatoria) or demand double the amount paid. The notice must categorize the breach as material and express the intent to terminate. This remedy provides a flat-rate liquidation of damages, exempting the party from proving actual loss. However, it precludes seeking additional damages, making the strategic choice essential for protecting client interests, particularly in real estate transactions and preliminary agreements.

The steps

1.
Verification of the materiality of the breach
Before proceeding, one must ensure the counterparty's breach is grave (material) under Art. 1455 c.c. edit.legal assists in evaluating whether the violation of contractual obligations justifies withdrawal. Retaining the deposit is contingent upon a breach of non scarsa importanza (not of slight importance), considering the interest of the non-breaching party. Not every delay or minor omission empowers a party to unilaterally dissolve the contract, so it is necessary to analytically document the counterparty's conduct and its impact on the contract's overall balance.
2.
Election of remedy and finality of choice
The practitioner must choose between withdrawal with retention of the deposit under Art. 1385 c.c. and a standard action for termination (risoluzione) with damages. These are alternative remedies and cannot be combined. If withdrawal is chosen, damages are pre-determined at the amount of the deposit. edit.legal suggests the most appropriate formula based on the estimated actual loss compared to the amount of the caparra confirmatoria paid. It is vital to remember that a request for termination and damages cannot be changed into a claim for withdrawal and retention of the deposit during the same proceeding.
3.
Drafting the formal notice
The notice must be sent via PEC (certified email) or registered mail with return receipt (raccomandata A/R). It must include references to the original contract, an analytical description of the breaching conduct, and an explicit declaration of withdrawal (recedere) from the contract. One must clearly state that the sum is being retained as a caparra confirmatoria or that double the amount paid is being demanded. edit.legal automatically generates the heading and necessary legal references, ensuring the intent to dissolve the relationship is unequivocal and cannot be mistaken for a mere request for late performance.
4.
Setting deadlines and final notice
Although withdrawal under Art. 1385 c.c. does not always require a prior notice to perform (diffida ad adempiere), it is good practice to link the withdrawal to the expiry of an essential deadline or the unsuccessful lapse of a given term. edit.legal suggests integrating the breach contestation with a chronological summary of previous communications. This strengthens the evidence of the counterparty's fault. The notice should also demand the release of any assets or the return of documents related to the now-terminated contract, setting a peremptory deadline for such ancillary obligations.
5.
Service and preservation of evidence
The effectiveness of the withdrawal is subject to the receipt of the communication by the breaching party: receptive act (atto recettizio). edit.legal archives proof of dispatch and receipt, ensuring the traceability needed to counter future challenges regarding the legitimacy of the retention. It is essential to preserve PEC logs or the return receipt of the registered mail (raccomandata). Without proof of receipt, the withdrawal does not take effect and the contract remains technically pending, exposing the non-breaching party to the risk of being considered in breach if they do not perform their remaining obligations.

Legal basis: Art. 1385 c.c.Art. 1453 c.c.Art. 1455 c.c.Art. 1218 c.c.

Mistakes to avoid

Combining the request to retain the deposit with a claim for actual proven damages.
Exercising withdrawal in the presence of a breach of slight importance or a purely formal omission.
Sending the notice to an improper address (e.g., standard email) making proof of receipt difficult.
Using the term risoluzione (termination) instead of recesso (withdrawal) in the notice, creating uncertainty about the applicable damage regime.
Failing to specify that the retention is made as a caparra confirmatoria under Art. 1385 c.c.

Frequently asked questions

Can I claim additional damages if I retain the caparra?

No, if you choose the path of withdrawal under Art. 1385 c.c., the deposit serves as a flat-rate and all-inclusive liquidation of damages. To seek higher damages, you must proceed with an ordinary termination action.

Is mediation mandatory before sending the withdrawal notice?

Sending the notice is an out-of-court act. However, if the counterparty contests the withdrawal and the matter is subject to mandatory mediation (e.g., real estate), mediation will be a condition of admissibility for any subsequent legal action.

What happens if the deposit is simply defined as an 'acconto' in the contract?

An acconto (down payment) does not have a confirmatoria function; it is merely an advance on the price. In case of doubt, edit.legal suggests verifying whether the parties intended to grant the sum the guarantee function typical of a caparra.

Editorial oversight: Avv. Federico Papa·ICAMUpdated 18 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction

What edit.legal automates

—Automated analysis of breach materiality based on uploaded contractual clauses.
—Generation of customized withdrawal clauses based on consolidated Supreme Court case law.
—Terminology consistency check to prevent confusion between withdrawal, termination, and performance notices.
—Verification of the correct classification of the deposit as confirmatoria rather than penitenziale.