The Residual Effectiveness of a Promise of Sale

Questions often arise when, after the public deed formalizing the sale is executed, one of the parties seeks to enforce obligations stipulated in the promise agreement. This raises the issue of whether all obligations automatically disappear upon execution of the definitive sale contract, or whether some survive.

As a rule, the effects of the promise of sale are extinguished once the execution of the public deed perfecting the definitive contract is completed. This follows the contractual logic that, once the purpose of the promise has been fulfilled—namely, the conclusion of the promised transaction—the preliminary contract lapses and ceases to produce effects.

In a judgment dated March 26, 2025, the Superior Court of the Judicial District of Medellín, with an opinion authored by Justice Martha Cecilia Ospina Patiño (Case No. 05001310301220230028501), noted that it is common practice for contracting parties to include in the promise not only the commitment to conclude the sale, but also ancillary or advance obligations, such as payment of the price or delivery of possession. These terms may be modified, supplemented, or omitted in the definitive contract, which replaces what was agreed in the preliminary contract. Accordingly, any change to what was initially agreed cannot later be alleged as a breach of the promise, since the promise is extinguished upon perfection of the sale.

However, the Court clarified that the extinguishing effect of the promise is not absolute, because those stipulations that were not regulated in the definitive contract survive. Consequently, if the deed of sale is silent on a point previously agreed in the promise, that obligation remains in force, enabling the compliant party to demand its observance even after the sale contract has been signed.

This stance introduces a case-by-case analysis that balances pragmatism with legal rigor: one must examine whether an obligation survives or is extinguished in light of what is agreed in the sale contract. This approach provides legal certainty to the parties by preventing advance obligations assumed in the promise from unjustifiably disappearing upon execution of the definitive contract.

It is essential that the parties understand the importance of what is agreed in the promise and in the definitive contract, since a lack of regulation—or the later inclusion of different clauses—may affect the validity and enforceability of commitments included in the promise. We should not leave to chance a judicial interpretation based on general principles, even if precedents have accepted a teleological application. The advisable course is to adopt a conservative approach, expressly recording both what should produce legal effects and what should cease to be in force.

Written by: Daniela Rojas Ballesteros