The so-called deposit refers to the fact that, in order to ensure the performance of the contract, the parties to the contract shall, according to the provisions of the law or the parties' agreement, have a certain percentage of the amount of the contract (not exceeding 20%) before the contract is concluded or after the conclusion of the contract. Pay the other party's money or its substitute. It is a certain amount of money as a guarantee of creditor's rights. It belongs to a kind of legal guarantee method. The purpose is to urge the debtor to perform its debt and to ensure that the creditor’s claim can be realized. When signing the contract, the deposit must be agreed in writing, and the amount of the deposit and the deadline for delivery should also be agreed upon. If the party that pays the deposit does not perform the debt, it does not have the right to request the other party to return the deposit; if the party accepting the deposit does not perform the debt, it must double the debt to the other party. After the obligor has fulfilled his obligations, the deposit shall be paid as a price or withdrawn in accordance with the agreement. >>> Links: Disguised deposits Charming Eyes Home Carefully signed project agreement According to the "Explanation on Several Issues Concerning the Application of the "Guarantee Law" published by the Supreme Court on December 8, 2000, the type and application of the deposit are mainly as follows: 1. Make an appointment. Article 115 of the "Explanation" stipulates the contract. The contractual fund is established as a contractual agreement, and its establishment is to guarantee the signing of the main contract. The special feature of a contract is that its legal validity does not depend on whether or not the main contract is legally effective. Where an agreement is set in an agreement such as a letter of intent, its legal validity exists when the party actually delivers the deposit, and when the contracting act it guarantees does not occur, the party that refuses to enter into the main contract must implement the deposit. Punishment. 2, into a contract payment. Article 116 of the "Interpretation" stipulates a contractual amount of money. The deposit that is agreed upon as the main contract is established or takes effect, is called a contract payment. If the parties agree in the contract that there is an agreement, the deposit will not be delivered and the contract is not valid or effective. If the parties agree on the deposit and expressly state that the delivery of the deposit constitutes the establishment or entry into force of the contract, the deposit shall be of a contractual nature. However, in order to encourage the transaction, if the main contract has fulfilled or fulfilled the main part, even if the party who paid the deposit did not actually deliver the deposit in accordance with the contract, it should still recognize the establishment or entry into force of the main contract. 3, settlement agreement. Article 117 of the "Interpretation" stipulates the payment of the contract. The settlement of the contract means that the deposit is used as the price for the retention of the right to rescind the contract, that is, one party who pays the deposit can give up the deposit to cancel the contract, and the party accepting the deposit can also double return the deposit to cancel the contract. It should be noted that although one of the parties dismissed the contract by taking the loss of the deposit, the party that is observing the contract is still liable for damages if the loss of the contract is greater than the proceeds of the deposit. 4, breach of contract. Article 89 of the "Law on Security" makes provisions for breach of contract, "Explanations" articles 120 and 122 provide additional provisions for breach of contract. The breach of contract is a deposit that is stipulated by the waiver of the deposit or double return as a remedy for breach of the contract. The "Guarantee Law" stipulates that if one of the parties fails to perform the agreed obligations as a condition for penalties for the applicable deposits, the "interpretation" will make different provisions for the "non-fulfillment" of different conditions. First, it is clearly stipulated that the conditions for penalties for breach of contract shall not only be delayed in the performance of such breach of contract, but also result in the failure of the purpose of the contract due to the breach of contract. These two conditions are indispensable. Second, part of the main contract was fulfilled, some were not fulfilled, and one of the parties suffered losses. However, the purpose of the contract was not completely defeated. At this time, it was necessary to impose a penalty on the parties who did not fully perform the contract, and it was not possible to have the entire penalty punished. . Third, due to force majeure, accidents or third party's fault caused by the main contract can not be fulfilled, whether the penalties for the deposit can be applied. In the event that the main contract cannot be performed due to force majeure or accidents, the penalties for the deposit shall not apply. If the main contract cannot be performed due to the fault of a third party other than the contractual relationship, the penalties for the deposit shall be applied. After one of the parties is punished by the deposit, it may seek compensation from a third party according to law. The deposit is legally ambiguous and non-standard. It is generally regarded as an advance payment in trial practice. Even if it is regarded as a kind of performance bond, this kind of guarantee is unilateral. It only forms a constraint on the payer, ie, The payer’s guarantee for the recipient. If the recipient breaches the contract, he will only be able to return the original deposit and will not be refunded twice. If the party making the payment breaches the contract, the recipient will use various reasons to settle the deposit as damages or liquidated damages without refund. According to China's "General Principles of Civil Law" and "Guarantee Law", the difference between deposits and deposits is mainly reflected in four aspects: 1. The agreement for the delivery of the deposit is from the contract, and should be paid in accordance with the contract but not paid. It does not constitute a violation of the main contract; the agreement for the delivery of the deposit is part of the main contract. If the deposit should be delivered according to the contract and not delivered, ie Constitutes a violation of the main contract. 2. When one party to the deposit and receiving deposit fails to perform the contractual debt, no loss or double return of the advance payment will result. The deposit can only be used as damages. 3. The amount of the deposit is subject to certain restrictions on the law. For example, the “Guarantee Law†stipulates that the amount of the deposit should not exceed 20% of the amount of the main contract; and the amount of the deposit should be freely agreed between the parties and the law generally does not limit it. 4. The deposit is of a security nature, and the deposit is unilateral and does not have a clear nature of guarantee. It can be seen that the deposit and deposit are only one word difference, but their legal consequences are not the same. The deposit can not produce all four legal effects of the deposit, and it cannot be applied to the deposit penalty. Construction contract home improvement
The difference between deposit and deposit