January 2026

Decision of the Single-Member Court of First Instance of Athens on the Nullity of a Private Agreement Amending a Notarial Deed Due to Lack of Compliance with the Required Notarial Form

Recently, Decision No. 14952/2025 of the Single-Member Court of First Instance of Athens was published, in which a lawsuit filed against our client was dismissed. In that lawsuit, the plaintiff sought to secure a judgment against our client for the payment of an alleged agreed penalty clause.

In the specific case, in the context of the sale of real estate and the drafting of the related purchase contract, with part of the purchase price retained by the buyer, the parties (seller/our client and buyer) signed an ancillary private agreement that modified essential terms of the main contract, specifically:

Those works were not completed, and the buyer sued our client, allegedly seeking forfeiture of the penalty clause as mentioned above.

However, the Court dismissed the lawsuit and ruled in favor of our client, accepting our argument that the private agreement was void due to failure to comply with the legally required form when it was executed. Specifically, we argued that because the said ancillary private agreement to the purchase contract affects essential terms of the latter — most importantly, the amount of the price — it should, pursuant to Article 164 of the Greek Civil Code (AC), have been executed in the form of a notarial deed, otherwise it is void.

The Court specifically held the following:“...From Article 159 of the AC it follows that if the constitutive formal requirement is not observed, the transaction is absolutely void […] from the combination of Articles 158, 159, 164, 166, 1033 and 369 of the AC, it follows that a contract for the sale of real estate must, on pain of nullity — which is examined ex officio — be made by notarial document, which is subject to registration […] Not only the in rem contract of transfer of property but also the contractual obligation to sell it is subject to the formal requirement of a notarial document […]. Agreements by which that contract is amended are also subject to the same (notarial) formal requirement […] Amendments for which the formal requirement must be observed are understood to be essential ones that legally affect the terms of the transaction, such as the term determining the time and manner of payment of the price and the expansion of the parties’ duties (Supreme Court 1397/2017 in TNΠ ΝΟΜΟΣ). The “amendments” within the meaning of Article 164 AC are agreed after the execution of the formal transaction, in order to replace or supplement the original terms, thereby altering the agreed right or broadening the content of the transaction […] Finally, the penalty clause provided for in Article 404 AC constitutes an ancillary agreement reinforcing the principal obligation, which means that it must be subject to the same formal requirement as the principal obligation (Athens Court of Appeal 3203/1995, EllDni 1997, 934; Varella in Georgiadis, SEAK, Vol. A’, 2010, Article 404, para. 3, p. 827). […] The following factual findings were proven: […] It concerns […] a private agreement which modifies the contract and, moreover, increases directly and immediately the seller’s (defendant’s) obligations and indirectly conditions the payment of the owed part of the price on the carrying out and completion of specific works on the property, since in the notarial document it is stated that the seller’s obligation under the sale contract […] consists in transferring the said horizontal property in full ownership, possession and occupancy […] Whereas in the private agreement, signed on the same day after the execution of the notarial document, the seller’s obligations are increased (defendant), since she is obliged — in addition to the transfer of the property — to carry out additional […] works on the property, […] otherwise it was agreed that a penalty clause would be forfeited against the seller (defendant), which […] would be set off against the part of the owed […] price. Under that content, the contract between the parties contained in the private agreement, which […] increases the seller’s obligations, should, according to the foregoing reasoning, have been executed in the form of a notarial document and, therefore, is void pursuant to Article 159 sec. (a) AC, the nullity being taken into account ex officio. Likewise, the agreement regarding the forfeiture of the penalty clause is void pursuant to Article 159 sec. (a) AC, which, as stated in the foregoing reasoning, should also have been executed in the same form as the principal contract…”.