Earnest Money Contract

Two, practice, deposit contract is a practice contract, it is the delivery of the deposit as an important requirement of the contract.

(three) to be structured, the deposit should be agreed in writing (ninetieth of the Guarantee Law).

What kinds of contracts are applicable to the deposit contract?

The sixth chapter of the guaranty law of the People's Republic of China and the Supreme People's court's interpretation of the earnest money in the interpretation of several issues concerning the application of the People's Republic of China Guarantee Law stipulates the earnest money, and the 1151st provision of the contract law stipulates: "in accordance with the People's Republic of China guarantee law, the parties may pay a deposit to the other party as a guarantee for the creditor's rights.

The provisions of the eighty-ninth article and third paragraph of the general principles of the civil law stipulate that one party may pay the deposit to the other party within the scope prescribed by law.

The scope of the "legal provisions" in this clause is "the applicable scope of deposit."

According to the relevant provisions of the above laws and judicial interpretation on the applicable scope of earnest money, the deposit contract can be widely applied to many kinds of contracts. In the economic activities such as the sales contract, the cargo pportation contract, the processing contract, the construction project investigation and design contract and so on, the creditor claims to guarantee the realization of his creditor's rights by way of guarantee, and he may establish a deposit guaranty contract according to the main contract.

A deposit contract must have a general contract, and the establishment of a deposit must be concluded by a written contract.

The effective conditions of a general contract are as follows: 1, the parties have corresponding civil capacity; 2, consciousness is the truth; 3, the content of the contract is legal.

The entry into force of the deposit contract must have the following special requirements besides the effective elements of the general contract: (1) the deposit contract is based on the validity of the main contract.

When the main contract is invalid or revoked, the deposit contract can not take effect. The party who has paid the deposit has the right to claim the return deposit; (2) the deposit contract is a practical contract, and the delivery of the deposit is the requisites; (3) the amount of the deposit should be less than the sum payable by the contract, and the specific amount shall be agreed by the parties, but it can not exceed 20% of the principal contract amount.

(2) no one party may alter or terminate the contract without authorization after the deposit contract comes into effect, unless the two parties reach a consensus and reach a written agreement.

(3) after the performance of the deposit, the deposit shall be made as a price or recovered.

(4) when a party fails to perform the contract, he must bear the penalty for the deposit. If the deposit is paid by the party who has paid the deposit, the deposit paid by the party who is in breach of the contract shall not be returned. The party who receives the deposit shall return the deposit twice if he violates the contract.

The deposit contract is one of the guarantee contracts. The first paragraph of the fifth article of the guaranty law stipulates: "the guaranty contract is the principal contract from the contract, the main contract is invalid, and the guarantee contract is invalid.

Therefore, it is better to pay attention to the validity of the main contract when signing the deposit contract, so as to ensure that the deposit signed is effective from the contract.

In order to avoid the occurrence of this phenomenon, the parties to the contract should make a special written agreement when paying the deposit, especially to make an agreement on how to deal with the deposit in violation of the terms of the main contract or supplementary contract.

The main purpose of signing a written deposit contract is to avoid disputes arising from the deposit contract, and to facilitate the dispute as a basis for providing differentiated responsibilities so as to effectively safeguard the legitimate rights and interests of both parties.

If the agreement is too high, it is possible to make the damages awarded by the contract keeping Party far exceed its actual loss.

If the agreement is too low, it will not play a role in the performance of the guarantee contract; the twentieth provision of the guaranty law stipulates that the amount of the deposit shall be agreed by the parties, but shall not exceed the upper limit of the total amount of the 20%. stipulated by the law. The specific amount determined within the upper limit is determined by the parties concerned. If the agreed amount of the deposit exceeds 20% of the principal contract amount, the excess part shall be regarded as invalid.

Since the deposit contract is a practical contract, it should not only have the agreement of the parties but also the delivery requirement, so the deposit contract shall come into effect from the day when the deposit is paid to the paying party in advance.

The time limit for the delivery of a deposit can prevent the disputes arising from the delay in the delivery of the deposit and the delay in the delivery of the deposit.

First, a deposit contract is a mandatory contract. It is a contract from the contract, and the prepaid contract is a novice contract, which is part of the main contract.

Secondly, the deposit is mainly guaranteed by the performance of the main contract.

Payment in advance constitutes part of the debt.

Third, when the performance of the main contract is delayed or fails to perform, it is not entitled to claim the deposit when the deposit is paid to the paying party, and when the deposit receiver defaults, the deposit should be doubled back.

At this point, the deposit will play the dual functions of the sanction party and the compensation party. In the case of prepayment, the party who receives the advance payment should refund the advance payment, whether the contract is broken or the receiver has broken the contract.

The main difference between liquidated damages and deposits is shown in the following aspects: first, liquidated damages are a means of compensation for breach of contract, mainly to compensate for or compensate for the losses caused by the breach of contract to the creditors of the contract; and the deposit is a guarantee method of the debt, so as to ensure the fulfillment of the contractual obligations and the realization of the contractual claims.

Two, liquidated damages do not have the nature of proving the existence of a contract and the payment in advance, whereas the deposit has the nature of proving the existence of the contract and the prior payment.

Three, the penalty for breach of contract is delivered after breach of contract, and the deposit is delivered before the contract is fulfilled.

Four, the penalty for breach of contract does not have punitive deposit, which is not only the form of guarantee for performing the contract, but also the sanction for non performance of the contract, and the deposit is punishable.

Five, liquidated damages are compensatory, whereas deposits are not compensatory.

In practice, there is a situation where there is no written agreement when the deposit is paid, and the "deposit", "deposit" and "margin" are issued on the receipt.

In this case, the 118th provision of the judicial interpretation stipulates: "the litigant shall pay the deposit, guarantee money, deposit, contract deposit, deposit or deposit, etc., but the nature of the deposit is not prescribed. If the party claims the right to deposit, the people's court shall not support it."

If the payment is determined to be the nature of the deposit, the contract should specify the word "deposit" two words, and specify in what circumstances not to return or double return, so as to avoid disputes arising from the unspecified agreement.

The 115th article of the contract law of China stipulates the deposit: "the parties may, in accordance with the guarantee law of the People's Republic of China, pay the deposit to the other party as a guarantee for the creditor's rights."

After the debtor has fulfilled his obligations, the deposit shall be made to the price or recovered.

If the party paying the deposit fails to perform the stipulated debts, he shall not have the right to claim the return of the deposit; if the party receiving the deposit fails to perform the stipulated debts, he shall double the deposit.

After the deposit contract is signed, if the amount of the actual deposit paid by the party who has to pay the deposit is more than or less than the agreed amount, the 119th provision of the Supreme People's court's interpretation of certain issues concerning the application of the People's Republic of China Guarantee Law shall be regarded as a change of the deposit contract. If the party accepts the deposit and refuses to accept the deposit, the deposit contract will not take effect.

The guaranty law stipulates that the deposit contract takes effect from the date of the actual delivery of the deposit.

Since the deposit contract is not yet in force, of course, it can not be forced to pay.

But a deposit contract is a contract for sale and purchase, and a deposit is also an obligation under the main contract.

The author thinks that if the deposit is not paid, it can be exhored to perform, and if it fails to perform, it may rescind the contract.

The Supreme People's Court adopted the 120th provision of the interpretation of several issues concerning the application of the People's Republic of China guarantee law, which stipulates that "one party's delay in performance or other breach of contract results in the failure to achieve the purpose of the contract and the penalty for deposit."

Unless otherwise stipulated by law or otherwise agreed by the parties. "

Therefore, in practice, if one party delays in performing the contract, the penalty shall be applied in accordance with the proportion of the content of the contract that is delayed.

Earnest money is one of the forms of guaranty, which means the performance of the principal contract debt, and the scope of its guarantee should be all debts.

Of course, the penalty is not applicable, but partly fails to perform.