A buyer who decides that the transaction will not take place does not receive his deposit back (clause 2 of Article 381 of the Civil Code of the Russian Federation).
Deposit is a voluntary type of payment. Its goal is to become a guarantor of the transaction for both parties (the seller is sure that the buyer will not change his mind, and the buyer knows that no one will get ahead of him). Earnest money is also used in real estate transactions.
Cash in the agreed amount is transferred to the seller by the future buyer. As a result, each party acquires certain rights and obligations even before signing the bill of sale.
In what cases is a deposit given?
A deposit is a certain type of advance payment that is made in money. One party transfers or transfers to the other an agreed amount as security for the conclusion of the sales contract.
deposit agreements free in word format
The most common deposit is in transactions with land, houses and apartments.
If the terms of the agreement are violated by the seller or buyer, the culprit will receive compensation. The transfer of funds is carried out only with the signing of a written agreement on the payment of a deposit.
The legislation of the Russian Federation does not provide for a fixed amount or percentage of the deposit. The value is agreed upon by the parties or announced by the seller. In most cases, it is 5–10% of the cost of the planned transaction.
The role of the deposit in the upcoming transaction is as follows:
- the seller receives in advance part of the amount for the property, which must go to the buyer,
- establishes certain obligations of the parties, for violation of which liability is provided. As a result, both the seller and the buyer are confident that the transaction will take place on the agreed terms. This makes relationships more stable.
ATTENTION! View the completed sample deposit agreement:
Is it possible to return the amount paid for the apartment?
The deposit paid for the apartment can be returned . Such a security deposit is popular for the purchase and sale of any real estate.
It ensures that the seller does not find a buyer willing to pay a higher price, and the buyer does not find a seller offering a lower price for his property.
Thus, the deposit brings stability to this area of market relations .
If the deal breaks down due to the fault of the seller, then he has the obligation to pay double the amount of the deposit, and if the party who gave the money is responsible for failure to fulfill the contract, then the advance payment made is simply not returned (clause 2 of Article 381 of the Civil Code of the Russian Federation).
Refund of payment by receipt
The deposit can be made not only by concluding an additional agreement , but also by drawing up a receipt containing all the necessary details.
When drawing up a handwritten receipt for the payment/receipt of a certain amount in the form of a deposit , you should take the matter seriously. This document must include the following mandatory data :
- Full name or name of counterparties;
- place of residence (legal address);
- individual subject of the transaction (apartment, car, house, garage, land) with details;
- the amount of the deposit (in numbers and in words);
- terms of conclusion (execution) of the transaction with dates;
- signatures of both parties (with transcript).
How to return the deposit by receipt? We must remember that if at least one of the items is missing, or unreliable or incomplete information is provided, it will be problematic to return the money. Write your receipt correctly!
Cases in which the deposit is refundable
There are only two possible situations in the field of real estate transactions when we can talk about returning the deposit:
- a citizen who intended to purchase a house or land changed his mind at the last moment. In this case, the law of the Russian Federation sides with the seller, who is not obliged to return the money received. But if the potential buyer proves that the other party is committing fraud or is preparing a gray transaction, he will receive his funds back. To do this, you need to file a lawsuit and win the case,
- the seller suddenly changed his mind about signing the bill of sale. If the transaction was prepared according to the law, then the parties must have a signed preliminary agreement with the specified amount of the deposit transferred by the potential buyer. In addition, an additional agreement is implied. In this case, the seller is obliged to immediately transfer money to the other party in an amount equal to double the deposit.
If the parties do not reach a consensus regarding the return of the transferred money, or the procedure did not take place in full, file a claim and seek justice in the courtroom. Such a step will help to influence the defendant in a timely manner and protect their interests in the legal field.
Is the deposit returned if the buyer cancels the deal?
In what cases is the deposit returned?
The return of the deposit is regulated by the Civil Code of the Russian Federation. This procedure will depend on who exactly is to blame for breaking the concluded agreement:
- Salesman . In this case, he will have to return double the amount of the deposit to the buyer. For example, a company had to supply goods worth 1,000,000 rubles. An agreement was concluded between the parties, which stipulated the condition of making a deposit in the amount of 200,000 rubles. The company transferred this amount to the seller, but the latter found another buyer willing to purchase the goods at a higher price, and therefore there was a need to cancel the agreement. In this case, the seller is obliged to pay the company 400,000 rubles.
- Buyer . The buyer may also be to blame for breaking the agreement. For example, a purchasing company found a supplier with more favorable conditions. In this case, you will have to accept that the deposit will remain with the seller in full.
These rules are stipulated by Article 381 of the Civil Code of the Russian Federation.
Situations in which a refund of the deposit is possible
Let's consider typical situations when making a deposit in the light of the features of refund:
- The duration of the preliminary agreement has ended, but neither the buyer nor the seller is engaged in concluding the main contract and fulfilling their obligations. That is, the deal did not take place. In this case, the company has the right to demand the return of the deposit. If the seller does not return the funds, he is breaking the law. Let's look at the legal basis. In this situation, the obligations under the preliminary agreement are considered irrelevant in accordance with the provisions of Article 429 of the Civil Code of the Russian Federation. The seller has no legal basis for withholding funds. They must be transferred to the buyer in accordance with Article 1102 of the Civil Code of the Russian Federation.
- The terms of the contract were declared impossible to fulfill. That is, circumstances have arisen in which neither the seller nor the buyer is to blame. In this case, the deposit is also returned in accordance with paragraph 1 of Article 381 of the Civil Code of the Russian Federation.
- Both the buyer and the seller can change their mind about participating in the transaction at the same time. In this case, an agreement is concluded between the parties, according to which the previously concluded agreement is terminated. The seller is obliged to return the deposit.
- The supplier's product turned out to be of poor quality. It does not meet the characteristics stated in the contract. The articles dealing specifically with the deposit say nothing about such situations. They relate rather to the area of consumer rights. In any case, no one is obliged to pay for low-quality products. The money must be returned to the consumer in full, including the deposit.
FOR YOUR INFORMATION! The grounds for returning the deposit (and there are only two of them) are set out in Article 1102 of the Civil Code of the Russian Federation. This is the termination of a contract by agreement of the parties or due to the impossibility of fulfilling its terms.
In what case will the deposit be returned in double amount?
The owner has found a buyer for his car. They agreed on a price with him, and the latter handed over the deposit. While the future owner was collecting the missing amount, the owner sold it to a third party who offered more money. In this case, the seller violated the agreement, for which he is obliged to return double the amount of the deposit.
Another situation may arise: the buyer refused to purchase the car for which he paid a deposit. In this case, the transaction is declared invalid, and the seller retains the funds as compensation.
The Civil Code regulates the procedure for returning the deposit in the event that one of the parties violates the preliminary agreement (clause 2 of Article 381). In any case, the party that refused to complete the transaction shall compensate the losses of the other party in an amount equal to the amount of the deposit.
How to return the deposit in double amount?
In all of the above cases, the buyer can return the funds in the amount in which they were provided to the seller. However, the most attractive option is to return the deposit in double amount. This is possible only if the contract was terminated unilaterally, due to the fault of the seller. Let's consider typical situations of returning double the amount of funds:
- The supplier has found another buyer and does not want to cooperate with the company anymore. In this case, there is every reason for the seller to be guilty.
- The supplier did not fulfill the essential terms of the contract. For example, he did not deliver the goods, he delivered them, but not in full and not within the agreed time frame.
- The seller misled the buyer, deceived him, and sold the goods to another person.
In all of the above cases, there is the fault of the supplier and his initiative to terminate the contract, which obliges him to return the deposit.
Possible pitfalls
The option of returning double the amount of the deposit is not always beneficial for the buyer, since the seller may simply not have that kind of money. In this case, you will have to seek a refund through bailiffs, which will take a lot of time. The best way out of the situation remains termination of the contract by agreement of the parties.
Is it possible to return the deposit paid for an apartment?
The deposit paid by the future buyer for residential premises in an apartment building can be returned. This financial guarantee is used in transactions with land, houses and apartments.
With its help, the parties consolidate an agreement on the purchase and sale of real estate, thereby telling each other that they are satisfied with everything and they will not look for other options. With the help of transferred funds, stability is brought to this market segment.
Attention! A seller who refuses to sell the property to the person who gave the deposit returns it in double amount. The buyer who reports that the transaction will not take place does not receive the deposit back (clause 2 of Article 381 of the Civil Code).
Another commentary on Article 381 of the Civil Code of the Russian Federation
1. Before the start of performance or due to the impossibility of fulfilling the obligation, if the failure is caused by circumstances for which the parties cannot be held responsible, the deposit must be returned. The issue is resolved differently if there is fault of the party who received the deposit; she is obliged to return the deposit in double amount.
The law does not answer the question about the possibility of considering a deposit as compensation in the event of termination of the obligation by agreement of the parties. Interpretation of Art. 409 of the Civil Code leads to the conclusion that an obligation can be terminated by presenting compensation in return for execution, including the payment of money. The amount, terms and procedure for providing compensation are established by the parties by agreement. Thus, if the agreement of the parties defines the payment of a deposit as a method of terminating the obligation, this agreement is valid. Moreover, it should be assumed that the parties to the compensation agreement have the opportunity to apply the provisions of paragraph 2 of the commented article both in part and in full.
2. Failure to fulfill an obligation entails for the party that gave the deposit its loss once, and for the party that accepted the deposit - its loss twice, while, of course, the party responsible for the failure to fulfill the contract is obliged to compensate the other party for the losses incurred by it. Thus, another function of the deposit is revealed - penalty. If a party incurs losses from failure to fulfill an obligation, then the deposit is counted towards losses, unless otherwise provided by the agreement.
Refund of deposit by receipt
The payment of a deposit for the purchased property is documented. Confirmation of this operation is an additional agreement or receipt indicating the necessary details.
ATTENTION ! View the completed sample receipt for deposit payment:
Be careful when writing a receipt for the deposit.
receipts for deposit payment free of charge in word format
It should contain the following information:
- last name, first name and patronymic of the seller and buyer (or authorized representatives),
- addresses of the parties,
- an exact description of the subject of the transaction (residential premises, garage, land): its address, cadastral number, etc.,
- the amount of the deposit is indicated both in words and in numbers,
- the period within which the transaction must be officially formalized,
- signatures and names of the seller and buyer.
How can I return the money transferred by receipt in the form of a deposit?
This is extremely difficult to do in the following cases:
- the information provided is false,
- the data is incomplete, which makes it impossible to identify the party or subject of the transaction,
- Information is not available on all items.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
Is the deposit returned to the winner and loser of the auction?
In the case of auctions or trades, a mandatory condition for participation is the need to deposit funds, which are a guarantee of the participant’s intentions.
In accordance with Art. 448 of the Civil Code of the Russian Federation, funds are subject to return if:
- a participant took part in the competition, but lost it;
- The organizers of the competition canceled the event.
The period during which the fee is returned is 20 days from the date of the competition or cancellation.
The funds contributed by the winner of the competition are counted as an advance payment. When the winner refuses to fulfill the terms of the competition, the deposit remains with the organizer.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
How to return the deposit under a preliminary agreement
preliminary agreement for the purchase and sale of an apartment with a deposit free of charge in word format
A preliminary agreement is a written recording of the seller’s intentions to sell and the buyer’s intentions to buy certain property at a specific price.
The parties to this document undertake to conclude the main agreement within a certain period of time.
The document contains information that the owner and future owner will complete a purchase and sale transaction of a certain property within a specified period at a specified price.
The additional agreement, which is an integral part of the preliminary agreement, is a guarantee of the seriousness of the parties’ intentions. If the conditions specified in the document are violated, the guilty party suffers a loss in the amount of the deposit transferred.
A sample preliminary agreement for the purchase and sale of residential real estate in an apartment building with a deposit is available for download here.
A seller who does not return the funds received if the preliminary agreement is declared invalid may be charged with illegal enrichment.
He is obliged to pay interest to the failed buyer for the use of his money. The amount is calculated depending on the number of days of delay.
ATTENTION! Look at the completed sample preliminary agreement for the purchase and sale of an apartment with a deposit:
Note! If funds are not returned voluntarily, file a lawsuit. In most cases, the court satisfies the requirements.
Please attach supporting documents to your application: a receipt or a preliminary purchase and sale agreement. They serve as proof that the funds were given and received voluntarily.
Refund of deposit when purchasing at auction
Before participating in the auction, participants make a deposit. It serves as a guarantee that the parties will enter into a purchase and sale agreement at the price specified by the winning buyer. In some cases, a refund of the deposit is provided.
Article 448 of the Civil Code contains information about the conditions under which participants can get their money back. The auction is held only after an official notice of the holding has been issued. It contains the conditions for participating in the auction and making a deposit.
How to transfer money?
You can receive the amount donated for participation in the auction in two cases:
- the event is cancelled,
- the money is returned to all losing participants in case of successful bidding.
The person who offers the highest price is recognized as the winner of the auction, and the deposit paid goes towards the future transaction. On the day of the event, a protocol is drawn up and signed.
It has the legal force of a preliminary agreement. If the winner refuses the deal, the deposit will not be returned to him. The law also protects the interests of the buyer: the auction organizer who refuses to sign the contract is obliged to return double the deposit.
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The injured party has the right to receive monetary compensation for losses incurred. A series of tenders are organized with the aim of identifying a person to sign the contract in the future. The document must be signed within a certain number of days, which are counted from the end of the auction.
If one of the parties refuses to enter into an agreement, the other, through the court, demands payment of compensation for losses incurred due to the fault of the person evading his obligations.
When the deposit is returned in double amount
The fundamental difference between a deposit and other types of advance payments is the presence of an additional function. The return of double the amount is important as a measure of influence on the unscrupulous participant in the transaction. The buyer transferred the deposit, thereby increasing the owner’s assets. By returning the transferred money, the owner of the property, in fact, remains with the original capital. The return of double financial security is a material loss for the selling party.
The deposit in double amount is transferred to:
- If the seller fails to fulfill his obligations to sell real estate or other valuable property (apartment, house, restaurant, yacht club, car, motorcycle, etc.).
- If the auctioneer refuses to enter into an agreement with the auction winner.
- If the landlord refuses the tenant to enter into an agreement.
- In other cases, when the agreement provides for a deposit, the transaction did not take place due to the fault of the person who received it.
When it is impossible to get the deposit back
The deposit is not refunded in cases where the transaction did not take place due to the fault of the buyer. If the transfer of money for the purchased property is properly completed and the conditions contained in the preliminary agreement are violated, the deposit cannot be returned.
Difficulties in returning transferred funds arise in the event of loss of the preliminary agreement. A buyer who refuses to sign the contract can try to return the deposit through the court.
In some cases, it is appropriate to refer to Article 451 of the Civil Code. According to this rule, valid reasons include an unexpected change in the situation. The article can be interpreted as follows: if a person assumed that circumstances would change so seriously, he would not agree to a deal on the terms specified in the document.
How to lend money against a receipt from a private person?
When is the deposit refundable?
So, as already noted, the law establishes only two cases when the deposit is returned:
- when the transaction is terminated due to the fault of the person who accepted the funds;
- when the grounds were circumstances beyond the control of the participants in the legal relationship.
If the latter basis exists, the law speaks of the need to apply the concept of force majeure, due to which the parties were unable to fulfill their obligations.
These circumstances do not depend on the will of the parties and are not the result of their intentional actions.
Such a circumstance can be taken as the destruction of a residential building due to a natural disaster. In this case, the deposit paid in connection with the purchase of residential premises in this house must be transferred back to the buyer. In this case, an increase in the deposit amount is not required.
Funds are also subject to return in the case when the person who deposited them in full has fulfilled his obligations, but his counterparty refuses to fulfill the obligations stipulated by the agreement.
For example, the seller raises the price of the apartment being sold in violation of the terms of the contract. In this regard, the buyer has grounds for terminating the previously concluded agreement.
Since the refusal to fulfill obligations in the future is caused by illegal actions of the seller, he is obliged to return the deposit in double amount.
