A scientific explanation of a legal figure which, again, might be a good way to go for property purchase in Spain. Option to purchase
AP Barcelona January 28, 2009 gives a precise definition of the purchase option:
"That agreement by virtue of which one party grants to another the exclusive right to decide on the execution or not of another main contract, to be done within a certain period and in certain conditions, which may also be accompanied by the payment of a premium by the elector, and constituting therefore its essential elements:
-the allowance to the elector of the unilateral decision regarding the execution of the purchase,
-the indication of the price stipulated for the future acquisition and
-the determining of the period for the exercise of the option;
being an "accessory" element the payment of the premium.
The optionor is who is unilaterally linked until the elector decides. It is governed by the general provisions on obligations and contracts except the rules that do not suit its own essence.
It is a preparatory contract. Among others, sentences of the Supreme Court February 14, 1997 and May 18, 1995.
Therefore consists in granting the elector, by clause inserted into the urban lease, the sole authority to give consent within the period contractually stated, to the offer of sale
"Lease with purchase option"
The sentence of the Supreme Court dated July 6th, 2001, defines the lease with purchase option as the insertion of a clause by which it is fixed the sole authority to give his consent within the period contractually stated to the offer of sale, which by the primary effect of the option is binding for the promissor, who cannot takes it back during this time , and once appropriately exercised the option expires and is consummated and the purchase agreement is automatically perfected without the possibility that the optionor or the grantor can do anything, to thwart its effectiveness, because it is sufficient for the perfection of the sale with the elector, as in the discussed case has been proved , that he has communicated his will to exercise its right of option. In the same line, sentence April 3, 2006.
Once duly exercised the option expires and it is consummated and the purchase agreement is perfected automatically, without the owner or grantor can do anything to thwart its effectiveness, because it is enough for the perfection of the sale that his will to exercise their right of option has been communicated.
The price is an essential element of the sale and it is a fundamental requirement to be fixed or determinable. By contrast, the option can be by price or free. Therefore the payment of the premium is an accessory element
The option right cannot be assigned by the elector in favor of third parties without the consent of the grantor. The reason for this is that it is not a true subjective right but only an authorization. The consent must be express but from a civil standpoint the tacit consent is admitted.
Beach of Chipiona, Cádiz, Southwest of Spain.