In everyday life we used to calladvance payment. But if you look from the point of view of the Civil Code, the term "deposit" has a wider meaning. In this regard, many people find it difficult to distinguish it from a pledge or, for example, compensation. In what cases is the agreement on the deposit and how to make it correctly, we will tell further.
What is a deposit?
According to the law, the deposit ispreliminary partial payment for the service and goods. In addition, it is still a way of securing an obligation. The deposit is used when making large transactions: buying real estate, cars, concluding a lease contract, contract, supply, holding competitions and auctions, etc. The provision of such a payment indicates that the parties are serious and thus guarantee their solvency.
Rules of Procedure
The law does not contain any restrictions on theabout the size of the deposit. Its amount is determined only at the discretion of the parties. It should be remembered that such a payment can only be made by money. The transfer of a debt or a bill can not be considered a deposit.
Naturally, to witness the facttransfer of a certain amount necessarily constitute a deposit agreement in writing. This is done by issuing a separate document, which contains the relevant provisions. If the parties perform the contract, the deposit will become one of the payments for the transaction. But if the contract can not be executed, the deposit is returned.
Conclusion of an agreement
The receipt of the deposit is a two-waya transaction that generates certain legal relationships. The subject of the agreement and the most important condition is the amount of payment. In general, the rights and obligations are unilateral, but nevertheless, in order to conclude the main contract in the future, the deposit agreement should contain such obligations for the payee:
- to take a certain amount in a particular place;
- issue a receipt for the receipt of money;
- Depending on the subject of the transaction, it may be subject to other requirements.
In addition, the recipient of the deposit mustthen conclude a contract only with a specific person (that is, with the one who provided the deposit). In addition, before concluding such an agreement, the parties must already formalize the contract, which is secured by the deposit.
Termination of the deposit agreement
Do not confuse such similar at first glanceconcepts as "deposit" and "advance". The first has a significant difference from the second, and it consists in the fact that if a party fails to fulfill its obligations, which has provided a deposit, it is deprived of it. That is, such a payment will remain with the recipient. If the contract is refused by the recipient of this amount, then not only the termination of the deposit agreement is canceled, but also the double payment.
As for the advance, it does not carry any “punitive” function. In case of non-compliance with the arrangements, the perpetrator does not lose this amount. Therefore, the advance and the deposit have different consequences.
At the same time, there may be times whentermination of the deposit agreement is accompanied by the return of the payment made. So, if the transaction is terminated by agreement of the parties, or if it cannot be executed at all, the payment must be returned. These rules generally mean that if any circumstances arise in connection with which the contract cannot be executed, the deposit is returned.
Content of the document
This document should contain someRequired details. We have already indicated that a deposit agreement is written only in writing. The sample of this document does not have any uniform strict form, but still it should contain the following information:
- The name of the document (agreement on the transfer of the deposit under a preliminary agreement), its date and place of preparation.
- Name and passport details of the parties.
- It also indicates the basis for giving a deposit (for example, on account of the preliminary agreement on rent or sale concluded).
- Further, a specific object is indicated, that is, for which a deposit is given (living quarters, vehicle, etc.).
- Penalties if one of the parties refuses the transaction (refund of double the amount for the recipient of payment or non-return of money for the one who gave the deposit).
- Other conditions that do not contradict the law.
- Signatories to the agreement.
Errors in the design agreement
Very often, the parties may make various legal mistakes when making a deposit agreement. Let us dwell on the most common.
Sometimes the persons who draw up such a documentindicate that money is transferred not as a deposit, but as a pledge. This is fundamentally wrong, such a payment can not be considered a pledge, since it contradicts the concept of pledge. At the same time, such an agreement can not testify about the transfer of collateral, because there is no direct indication.
Вторая ошибка – стороны заключают соглашение о deposit, but the transferred payment is called an advance. As a result of such a slip, the provisions on the deposit will not be applied. When making such mistakes, money can be returned, however, in order to achieve this, it is often necessary to spend a lot of time and effort.
Rules for making a deposit agreement for certain types of transactions
In general, the rules for drafting the transfer documentThe deposit for different categories of transactions almost does not differ. However, for contracts that include real estate, not to enter into an agreement on the transfer of payment as a deposit for the buyer is more than risky. In addition, an incorrectly drafted document can lead to unpleasant consequences. It is best to transfer the payment and draw up an agreement on the deposit of a land plot, residential or non-residential premises or other real estate with a notary. It is also important to require, in addition to the agreement, a receipt for payment. This document is kept by the buyer until the transaction is completed.
Subtleties with lease transactions
To certify the fact of the transfer of warrantyPayment is important not only when entering into a contract of sale. Such paper can be made up in principle for almost any type of transaction. Unfortunately, many believe that if they intend to take some object in the lease, then you can not enter into an agreement on the deposit. Renting is also a serious procedure. Especially if it is, for example, about some non-residential premises. Imagine you have agreed with the landlord that you will rent a shopping pavilion from him. This is very beneficial for you, because it is in a favorable place, or the rent will be low. But here the owner of the premises took and changed his mind, and the entrepreneur has to look for a new place, losing his income. Therefore, in this case, you need to insist on concluding an agreement on the deposit, the future employer has the full right to this.
In conclusion
To make a deposit agreement,adhere to a set of simple rules. From the correctness of this document, in fact, depends on the fate of the transaction. Also, before transferring the payment, it is necessary to agree on all the nuances and receive a receipt from the seller about receiving the money. The deposit is your reliable guarantee that the contract will be implemented, therefore do not neglect your legal right.
