Is a breach of the deposit in the contract a fundamental breach of the main contract?

Hello landlord, it can be seen that you are familiar with contract law and guarantee law, and now only analyze the key qualitative issues:

First of all, it is necessary to distinguish what kind of deposit is agreed in the contract.

1. If the contract takes effect by agreeing to pay a deposit of 100,000 yuan on xx days, only 10,000 yuan is paid for the agreed money, if the deposit is not accepted, the contract will not take effect, and the other party needs to bear the responsibility for negligence in signing the contract and compensate us for losses.

If the deposit is accepted, it is deemed that the original contract has been changed by its own behavior, and the contract takes effect, and the other party does not need to bear the liability for breach of contract.

2. If there is no agreement to pay a deposit of 100,000 yuan on xx day, the contract has taken effect when the contract is concluded, and the deposit agreement at this time is a general deposit clause. If the deposit is accepted, it is regarded as a change in the contract, and the other party does not need to bear the liability for breach of contract. If the other party's deposit is not accepted, because the contract has taken effect at the time of conclusion, the other party constitutes a breach of contract and needs to bear the liability for breach of contract.

Second, the termination of the contract requires the breaching party to be in fundamental breach of contract, and under normal circumstances, the change of the deposit cannot terminate the contract.

If you have any questions, please add to them.

The buyer's failure to fully perform the deposit clause in accordance with the contract constitutes a breach of contract, and the seller's request to terminate the contract on this ground is reasonable. According to the provisions of the Contract Law, the deposit is a legal form of security, the purpose of which is to prompt the debtor to perform its debts and ensure that the creditor's claims can be realized. When signing the contract, the deposit must be agreed in writing, and the amount of the deposit (not more than 20 of the purchase price) and the delivery period should also be agreed.

If the party paying the deposit fails to perform its obligations, it has no right to demand the other party to return the deposit; If the party receiving the deposit does not perform the contract, it is required to return double the deposit to the other party. After the two parties perform the contract, according to the agreement, the deposit shall be offset against the price or recovered.

According to the provisions of the Contract Law and judicial interpretations, if a deposit is agreed in the contract, but the actual amount of the deposit paid is less than the agreed amount and the other party has actually received it, it is deemed to have changed the terms of the deposit, and therefore the buyer is not in breach of contract.

Since it does not constitute a breach of contract, the seller should perform its obligations as agreed in the contract.

Failure to perform in accordance with the contract is a breach of contract and is a breach of contract. The seller may rescind the contract on this ground.

A deposit of 100,000 yuan was paid, but the buyer only paid 10,000 yuan, and the other 90,000 yuan was not paid. "Is it written in the terms and conditions that the remaining 90,000 yuan will be paid and timed? If it is specified, there is no breach of contract.

If not, the seller should also prompt the buyer to pay the balance before aborting the transaction.

1. The deposit is not equivalent to the liquidated damages, and the difference between the deposit and the liquidated damages is as follows:

1) The purpose is different. The deposit is a form of security for the fundamental purpose of ensuring the real rights of the creditor's rights. The fundamental purpose of liquidated damages is to sanction the breach of contract, which is the way to bear civil liability.

2) The time of delivery is different. The deposit can only be paid before the performance of the contract, while the liquidated damages can only be paid after one of the parties has defaulted. Therefore, the deposit has the function of prepayment and levy, while the liquidated damages do not.

3) It varies according to the occurrence. The deposit is agreed upon by both parties in the deposit contract, while the liquidated damages are generally agreed upon by the parties themselves.

4) The criteria for determining are different. The amount of the deposit shall not exceed the amount prescribed by law, and according to the provisions of the Guarantee Law, the maximum amount of the deposit shall not exceed 20% of the amount of the subject matter of the contract, and the excess part shall be invalid. Liquidated damages, on the other hand, are determined according to the amount of losses that may be caused by the breach of contract, as they are in the nature of predetermined damages.

2. According to Article 588 of the Civil Code of 2021, if the parties agree on both liquidated damages and deposits, when one party breaches the contract, the other party may choose to apply the liquidated damages or deposit clause.

If the deposit is insufficient to compensate for the losses caused by one party's breach of contract, the other party may request compensation for the losses in excess of the amount of the deposit.

No organization or individual may occupy, buy, sell, or otherwise illegally transfer land. The right to use land may be transferred in accordance with the provisions of the law.

According to Article 73 of the Land Management Law, the sale or other forms of illegal transfer of land, by the people's land administrative departments at or above the county level confiscate illegal gains; For those who change agricultural land into construction land without authorization in violation of the overall land use plan, the newly built buildings and other facilities on the illegally transferred land shall be demolished within a time limit and the original state of the land shall be restored, and the newly built buildings and other facilities on the illegally transferred land shall be confiscated if they conform to the overall land use plan; A fine may be imposed concurrently, and the person in charge who is directly responsible and other persons directly responsible shall be given administrative sanctions in accordance with law, and if a crime is constituted, criminal responsibility shall be investigated in accordance with law.

How does the Civil Code stipulate deposits and liquidated damages?

Article 588 of the Civil Code (in force) [Liability when liquidated damages and deposits are competing] The parties agree on both liquidated damages and the return of the deposit, and when one party breaches the contract, the other party may choose to apply the liquidated damages or the deposit clause. If the deposit is insufficient to compensate for the losses caused by one party's breach of contract, the other party may claim compensation for losses in excess of the amount of the deposit.

Difference Between Deposit and Liquidated Damages:

1.The nature is different.

Although theoretically speaking, both the deposit and the liquidated damages have the function of guaranteeing the realization of the principal claim, and the civil law countries also stipulate these two as the security methods of the debt. However, in China's legislation, liquidated damages are only a form of civil liability, and they are not regarded as an independent form of security. Moreover, the liquidated damages stipulated in China's Civil Code are based on the principle of sanctions, supplemented by compensation.

The effect of the guarantee is far weaker than that of the deposit guarantee. The purpose of the deposit is to ensure the realization of the creditor's rights, and it is clearly stipulated in the Civil Code as a form of security. The fundamental purpose of liquidated damages is to sanction breach of contract and is the way to bear civil liability.

Because of this, the agreement on the deposit is a subordinate contract independent of the main contract; The agreement on liquidated damages is part of the content of the contract.

2.The role is different.

The deposit has the function of a contract and an advance payment. Liquidated damages, on the other hand, do not have the above effect.

3.It is produced in different ways.

The deposit can only be made by agreement between the parties. Liquidated damages can be incurred either on the basis of the agreement of the parties or on the basis of direct provisions of the law.

4.Delivery times vary.

The deposit is paid before the performance of the contract. Whereas, liquidated damages are paid after the breach of contract.

5.The legal consequences are different.

If the parties agree on both liquidated damages and deposits, the other party may choose to apply the liquidated damages or deposit clauses when one party breaches the contract. If the deposit clause is chosen, the party who pays the deposit has no right to demand the return of the deposit if it does not perform the agreed auspicious concession debt; If the party receiving the deposit fails to perform the agreed debt, it shall return the deposit twice.

It is not a statutory liquidated damages.

The deposit agreed by both parties to ensure the establishment of the contract or the performance of the contract is the content agreed by the two parties, and shall be the intended deposit, not the liquidated damages.

Legal Analysis: Liquidated damages and deposits are two different forms of liability. The deposit refers to the amount paid in advance by one of the parties to the contract to the other party in order to guarantee the performance of the contract; Liquidated damages refer to the amount payable by one party to the other party in the event of breach of contract in accordance with the agreement of the parties or the direct provisions of the law.

Legal basis: Civil Code of the People's Republic of China

Article 585:The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach of contract, and may also agree on the method of calculating the amount of compensation for losses arising from the breach. 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. If the parties agree on liquidated damages for delayed performance, the defaulting party shall be cautious after paying the liquidated damages, and shall also perform the debt.

Article 586:The parties may agree that one party shall pay a deposit to the other party as security for the creditor's rights. The deposit contract is concluded when the deposit is actually paid. The amount of the deposit shall be agreed upon by the parties; However, it shall not exceed 20% of the amount of the subject matter of the main contract, and the excess part shall not have the effect of a deposit.

If the actual amount of deposit delivered is more than or less than the agreed amount, it shall be deemed to have changed the agreed amount of deposit.

Deposits and liquidated damages cannot be applied in the same contract. The deposit clause takes effect from the date of delivery, which is generally set at 20% of the subject amount, and is handled in accordance with the deposit penalty; Liquidated damages shall be subject to breach of contract as an effective condition, and shall be handled in accordance with the terms agreed in the contract based on the actual loss; If both parties agree on both the deposit and the liquidated damages, they can only choose to apply one of them.

Whether the deposit and liquidated damages can be applied at the same time in the same contract.

1.Deposit and liquidated damages are both a kind of liability established to urge the contracting party to perform its obligations, and the parties agree on both liquidated damages and deposits, and when one party breaches the contract, the other party can choose to apply the liquidated damages or deposit clauses. In other words, the two cannot be applied at the same time.

2.In practice, it should be noted that if the nature of the liquidated damages is unclear in the contract, it shall be regarded as compensatory liquidated damages.

The parties to the contract may agree on punitive liquidated damages on a voluntary basis. Compensatory liquidated damages and liquidated deposits cannot be applied at the same time. If the contract does not expressly stipulate that the deposit is the termination deposit, the breaching party is willing to terminate the contract at the cost of bearing the loss of the deposit, and the non-breaching party requires continued performance and can continue to perform, the breaching party has no right to terminate the contract.

Can the deposit and liquidated damages be applied in the same contract?

Deposits and liquidated damages cannot be applied at the same time in the same contract, because the simultaneous claim of deposits and liquidated damages does not conform to the principle of "compensatory first, punitive secondary". The Civil Code stipulates that if the parties agree on both liquidated damages and deposits, the other party may choose to apply the liquidated damages or deposit clause when one party breaches the contract.

Whether the penalty and deposit can be applied at the same time.

Liquidated damages and deposits cannot be applied at the same time. If the parties have agreed on both a deposit and liquidated damages, when one party breaches the contract, it can only choose to apply the liquidated damages or the deposit, and cannot apply both. If a deposit is applicable, if the agreed deposit is insufficient to compensate for the loss of breach of contract, a claim may be made for the loss in excess of the amount of the deposit.

Whether the penalty and deposit can be applied at the same time.

According to the law, the deposit and liquidated damages cannot be applied at the same time, and the non-breaching party can only choose to apply the deposit or liquidated damages to pursue the breaching party's liability for breach of contract. The law stipulates that if the parties agree on both liquidated damages and deposits, the other party may choose to apply the liquidated damages or deposit clause when one party breaches the contract.

Can the contract breach deposit and liquidated damages be applied at the same time?

Liquidated contract deposits and liquidated damages cannot be applied at the same time. The deposit shall be handled in accordance with the deposit penalty, and the liquidated damages shall be handled in accordance with the terms agreed in the contract. If both parties agree on the deposit and the breach of contract at the same time, they can only choose to apply one of them.