Deposit, deposit, deposit, security deposit, liquidated damages, which can be refunded and which can not?

Author: Ma Guolei

Unit: Tongzhou Court

Source: Jingfa Network Affairs

Recently, Xiaomi Auto's "deposit is not refundable" rushed to the hot search, causing heated discussions among netizens, some netizens said: "At the press conference, it was said that the deposit can be refunded in 7 days, why do you say that it can't be refunded now, the deposit seems to be a metaphysics, I can't see it clearly, I can't guess it." ”

In daily life, everyone may have such doubts: when you stand at the door of the legal "hardware store", looking at the "deposit, deposit, deposit, security deposit, liquidated damages" placed in the window, you feel familiar and unfamiliar, familiar is that you have already heard their names, and the strange thing is that once you intersect with them in life, you find that you know nothing about them, and you are worried about "whether you can return them".

Today, the article of Jing Xiaomallet will take you to understand the "legal hardware"!

1. Deposit

Deposit is a legal concept, which is a form of guarantee voluntarily agreed by the parties to a contract to ensure the performance of the contract, and has the nature of guaranteeing the performance of the contract.

The following conditions must be met for the deposit to be established: (1) the maximum limit shall not exceed 20% of the subject matter of the main contract, and the excess part shall generally be regarded as an advance payment; (2) The deposit agreement must be in writing, which is a legal form, and if it is only an oral agreement, it will be invalid; (3) The deposit is a practical contract, with actual delivery as the prerequisite for its establishment, and if it is not delivered, it is deemed that there is no agreed deposit; (4) The deposit agreement must be clear, if the agreement is not clear, it will be deemed that there is no agreement.

The rules for the performance of the deposit are clearly stipulated by law, and the paid deposit will not be returned if the contract cannot be performed due to the reasons of the party paying the deposit; If the contract cannot be performed due to the reasons of the party receiving the deposit, the deposit received shall be doubled.

For example:

Xiao Zhao bought a car from the 4S store with a total price of 300,000 yuan, and the two parties agreed that Xiao Zhao would pay a deposit of 20,000 yuan to the 4S store first, and Xiao Zhao would take the car and pay the balance a month later, and the deposit would be used to offset the purchase of the car. If Xiao Zhao regrets that he doesn't want the car, then Xiao Zhao has no right to ask the 4S store to return the deposit of 20,000 yuan; If the 4S store finally says that it will not sell, then the 4S store should return Xiao Zhao's deposit of 40,000 yuan.

2. Deposit

Although the deposit is often mentioned and used in daily life, in fact, the deposit is only a customary term, not a legal concept.

A deposit is the money paid by one party to the other party for the needs of the transaction, and does not have the function of guarantee.

Whether the deposit can be refunded should be determined in combination with the content of the contract and transaction habits, and if the contract is terminated, the party who received the deposit should return it. Regardless of whether the deposit is paid or the party receiving the deposit causes the contract to be terminated, the deposit paid must be returned.

It should be noted that the deposit can be claimed in full, which does not mean that it does not bear the liability for breach of contract, if the party who paid the deposit breached the contract first, causing losses to the other party, then the other party can ask it to compensate for the loss of breach of contract; If the party receiving the deposit breaches the contract and causes losses to the other party, it is not only necessary to return the deposit, but also to compensate the other party for the loss.

For example:

Xiao Sun bought a piece of furniture worth 1,000 yuan from Xiao Li, and the two parties agreed that Xiao Sun would pay a deposit of 200 yuan to Xiao Li, and the 200 yuan would be used as payment, and Xiao Sun only needed to give Xiao Li another 800 yuan. If Xiao Sun does not want this furniture after paying the deposit, he can ask Xiao Li to return the 200 yuan deposit without causing any loss to Xiao Li. However, if Xiao Li has purchased raw materials and arranged for workers to start processing and manufacturing after receiving the deposit, Xiao Li can claim compensation for Xiao Sun's breach of contract.

3. Deposit

The deposit is a kind of security interest, specifically a special form of pledge security, that is, in order to guarantee the performance of the debt, the debtor or a third party transfers a certain amount of money or equivalent to the creditor for possession, and when the debtor fails to perform the obligations of the contract, the creditor can be repaid from the deposit in priority.

In the lease contract of a house, there is often a deposit clause. In layman's terms, a deposit means that the depositor (the person who pays the money) deposits a certain amount of money with the mortgagee (the person who receives the money) to ensure that the other party's actions will not cause damage to his own interests. The biggest difference between a deposit and a deposit is that the deposit is binding on both parties, while the deposit is only binding on one party (the person who pays).

The deposit is not a standardized legal concept, when the performance of the agreement is completed, the legal relationship between the two parties does not exist, the deposit should be refunded if there is no breach of contract, and if there are other agreements, it shall be handled according to the agreement. If there is a breach of contract in the course of performance, the deposit only has the function of guaranteeing the performance of the contract by the obligor, and the sanctions against the defaulting party are only limited to the deposit paid. That is, if the party who paid the deposit fails to perform its contractual obligations, it has no right to recover the deposit; However, if the party accepting the deposit fails to perform its contractual obligations, it does not bear the obligation to return the deposit double.

For example:

Xiao Zhou leased a house from Xiao Wu, and the two parties agreed that Xiao Zhou would pay Xiao Wu 2,000 yuan as a deposit, and if Xiao Zhou had paid off all the expenses when the lease expired, the deposit of 2,000 yuan would be returned to Xiao Zhou; If Xiao Zhou's lease has not been paid off when it expires, Xiao Wu can deduct the rent from the deposit of 2,000 yuan.

4. Margin

Security deposit refers to the money retained by one or both parties to the contract to the other party or deposited with a third party to ensure the performance of the contract. This concept is widely used, such as contract bond, performance bond in bidding, security deposit in futures trading, and even security deposit in bail pending trial.

There are two main forms of security deposits: one is the security deposit that the parties to the contract require the other party to provide in order to ensure the realization of their claims, and the other is the deposit deposited by the parties to a mutually recognized third party (usually a notary public) to ensure the performance of their respective obligations when the contract is established.

The security deposit also has the same function as the guarantee contract of the deposit, but it does not have the function of double return. Moreover, the parties can agree on the role of the deposit (e.g., the guarantee of the conclusion of the contract, the conditions for the entry into force of the contract, the proof of the conclusion of the contract, or the consideration for the termination of the contract), which are not available in the security deposit.

There is no limit to the time and amount of margin retention or withdrawal. The parties may agree on their own before or during the performance of the contract; The amount of the security deposit can be equivalent to the amount of the debt, unlike the deposit that the total amount is not bound by 20% of the total price of the main contract, and must be paid at the time of the contract or before the contract is signed.

For example:

Xiao Zheng and Xiao Li signed a processing contract, in order to ensure the performance of the contract, the two parties can agree to pay a deposit of 3,000 yuan each to be deposited at the notary office. If the contract is not performed because of Xiao Zheng's reasons, the security deposit will be given to Xiao Li as compensation, and vice versa.

5. Liquidated damages

Liquidated damages refer to the payment made by the parties through negotiation and independent of performance after the occurrence of the breach.

Although the agreement on liquidated damages is freely agreed upon by the parties, this freedom is not absolute, but restricted. If the agreed liquidated damages are lower than the losses caused, the people's court or arbitration institution may increase them at the request of the parties; Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.

For example:

Xiao Feng and Xiao Li signed a sales contract with a total price of 3 million yuan, and the two parties agreed that the amount of liquidated damages for the delay in payment and the delay in delivery of the party was 30,000 yuan. If Xiao Feng cannot deliver the goods to Xiao Li before the agreed date, Xiao Feng will have to pay 30,000 yuan in liquidated damages to Xiao Li; If Xiao Li fails to transfer the money to Xiao Feng on time within the agreed period, Xiao Li shall pay Xiao Feng 30,000 yuan in liquidated damages.

Kyo Tips:

Deposits, deposits, deposits, security deposits, and liquidated damages are obviously different in terms of content and legal consequences, and when signing a contract, everyone should have a full understanding of this and act cautiously according to their actual situation.

► Be sure to read the agreement carefully before signing the contract

As a party to the contract, before signing the relevant contract, it is necessary to read the content of the agreement carefully, and pay attention to whether the "deposit", "deposit", "deposit" or "security deposit" indicated in the text is consistent with the meaning expressed in the oral communication between the two parties.

In the process of online transactions, operators will give special reminders to the terms of deposits, deposits, etc., and consumers must carefully check the risk warnings and exemption clauses before payment and confirmation.

► When making relevant payments, complete the payment method and remarks information

When paying the "deposit", "deposit", "deposit" or "security deposit", the bank transfer method should be adopted as much as possible, and clear notes should be made on the items of the money when transferring, so as to avoid ambiguity between the two parties on the nature of the payment.

► Take necessary measures to protect their legitimate rights and interests in a timely manner

In the event of a dispute, the applicant shall properly keep the necessary evidence materials (such as contracts, documents, WeChat chat records, etc.), promptly file a complaint and report to the competent department for industry and commerce, and may protect its legitimate rights and interests through litigation.

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