[Claim] Cases of liquidated damages in the contract

The key still depends on how the contract is stipulated (specific terms). The following is some knowledge about the deposit, for reference only. A deposit is a certain amount of money paid as a guarantee before the conclusion or performance of a contract. The party paying the deposit is called the deposit payer, and the party accepting the deposit is called the deposit receiver.

According to the relevant theories of civil law, deposits have the following legal characteristics: 1. Deposit is a kind of money guarantee. Its guarantee is embodied in the provisions of the law on the penalty for deposit (that is, if the party paying the deposit fails to perform the agreed debt, it has no right to demand the return of the deposit; If the party receiving the deposit fails to perform the agreed debt, it shall return the deposit twice. 2. The deposit is set by the payment behavior. The deposit contract is a practical contract and takes effect from the date of deposit payment. 3. The deposit must be agreed with a clear meaning. The parties either explicitly agree that the money they pay is a deposit, or agree on the actual content of the deposit penalty, otherwise it does not constitute a deposit. ("the Supreme People's Court on implementation.

1, contract deposit, also known as contract deposit, refers to a certain amount of money paid to guarantee the conclusion of the contract. Fixed contract payment is the applicable condition for one party to refuse to conclude the main contract. The Supreme People's Court on implementation

1, the nature of the deposit can be agreed by the parties. The parties may stipulate in the contract that the deposit has a number of properties that are not mutually exclusive. For example, the parties may agree that after the main contract is formally concluded, the deposit will not be returned, but will be used as a default deposit; For the agreed deposit and the agreed deposit, it can also be paid by agreement to make it have the nature of default deposit. 2. In some cases, even if there is no agreement between the parties, it can be presumed that the deposit has other properties than the agreed nature. For example, default deposit, termination deposit and agreement payment contract are all subsidiary contracts of the main contract, and the existence of the subsidiary contract will certainly prove the existence of the main contract, so the above three deposits certainly have the nature of agreement payment at the same time. 3. If the parties have no agreement on the nature of the deposit, they shall make corresponding presumptions. Under normal circumstances, it should be presumed that the deposit only has the general nature of the deposit. According to the legislative spirit stipulated in the Guarantee Law, the general nature of China's deposit should be breach of contract deposit, which is generally recognized by China's trading habits and judicial practice.

1. The deposit amount shall be agreed by the parties in principle, but the maximum amount is limited by the Guarantee Law, that is, it cannot exceed 20% of the subject matter of the main contract. According to the judicial interpretation, if the amount of deposit agreed by the parties exceeds 20% of the subject matter of the main contract, the people's court will not support the excess. The intention is obviously to limit the amount of deposit paid and the penalty of deposit within a certain limit. 2. France explains that Article 1 19 stipulates that if the actual amount of deposit paid is more than or less than the agreed amount, it shall be regarded as a change of the deposit contract; If the party receiving the deposit raises an objection and refuses to accept the deposit, the deposit contract will not take effect. This provision shows that the deposit contract is a practical contract, and the deposit contract is established only after the deposit is delivered to the other party for acceptance.

1, the specific content of the deposit penalty If the party paying the deposit fails to perform its contractual obligations, it has no right to request the return of the deposit; If the party accepting the deposit fails to perform its contractual obligations, the deposit will be returned twice. If one party fails to fully perform the contract, the deposit penalty shall be applied according to the proportion of the unfulfilled part in the contract. 2. The application of the deposit needs to meet the following conditions: 2. 1 The deposit contract is a practical contract and needs the actual delivery of the deposit. If the deposit is not actually paid, and one party fails to perform the contract debt or conclude the main contract, the penalty of deposit cannot be applied. 2.2 The master contract must be valid. This is determined by the subordination of the deposit contract. If the main contract is invalid or cancelled, even if the parties have paid and accepted the deposit, the penalty of deposit cannot be applied. However, the parties may agree that the effectiveness of the deposit contract is independent of the main contract, that is, the main contract is invalid, but the deposit contract is not necessarily invalid. 2.3 Both parties can't be excused if they don't perform their debts. 3. Provisions made in the Interpretation of Guarantee on several special situations in which the down payment penalty is applicable: 3. 1 It is considered as the situation of non-performance of the guaranteed debt. If the purpose of the contract cannot be achieved due to one party's delay in performance or other breach of contract, the penalty of deposit may be applied. Unless otherwise provided by law or agreed by the parties. 3.2 Deposit penalty when the contract is not fully performed. If one party fails to fully perform the contract, it shall collect the deposit penalty according to the proportion between the unfulfilled part and the contents agreed in the contract. 3.3 If the main contract cannot be performed due to force majeure or unexpected events, the penalty of deposit is not applicable. If the main contract cannot be performed due to the fault of a third party other than the contractual relationship, the penalty of deposit shall apply. The party punished by the deposit may claim compensation from the third party according to law.

1. The purpose of guarantee, mortgage, pledge and lien guarantee is only to ensure the interests of creditors, but not to provide any protection for debtors. Deposit guarantee provides performance guarantee for both parties to the contract. 2, the difference of legal effect 2.2. 1 guarantee the rights of the property as creditor's rights, without priority; 2.2.2 The rights arising from the down payment are also creditor's rights, and there is no priority to be compensated; 2.2.3 Mortgage, lien and pledge are real rights for security, and they have the priority to be compensated for the mortgaged property and the realized price. 3. The nature of the deposit penalty is punitive, while other guarantees are not punitive.

1, the application of deposit penalty when both parties breach the contract 1. 1 The so-called breach of contract refers to the situation that both parties have to pay for it, violate the contract provisions, damage the expected contractual interests of both parties, and should bear their respective responsibilities. 1.2 In the case of breach of contract by both parties, if one party breaches the contract under legal or agreed circumstances and the other party breaches the contract on other matters, only the former unilaterally applies the penalty of deposit, and the latter can investigate its corresponding liability for breach of contract. If both parties breach the contract in a legal or agreed situation, the deposit penalty applies to both parties, that is, one party loses the deposit and the other party returns the deposit twice. After offsetting each other, the party paying the deposit can recover all or part of the deposit. In the practice of 1.3, when dealing with the above problems, we should pay attention to distinguish between the application of both parties' breach of contract and the right of defense, so as to prevent the unilateral breach of contract establishing the right of defense from being misjudged as both parties' breach of contract. 2. Can the deposit and liquidated damages be applied at the same time? 2. 1 Article 1 18 of China's Contract Law stipulates: "If the parties advocate both the agreed liquidated damages and the deposit, when one party breaches the contract, the other party may choose to apply the liquidated damages or the deposit clause." Therefore, the deposit and liquidated damages cannot be applied at the same time, so you can only choose to apply. 2.2 From the legal analysis, the penalty for deposit is punitive, and so is the penalty for breach of contract. If both are used at the same time, it will violate the basic spirit of the principle of fairness. If you are too harsh on the defaulting party, the other party will get undeserved benefits. 3. Can I claim compensation while applying for the deposit? The undertaking of down payment responsibility cannot replace the liability for damages, and the two should be distinguished. If one party's breach of contract causes actual losses, the other party may claim damages while applying the penalty of deposit. However, the total amount of deposit and damages shall not exceed the sum of the price of the subject matter and gold. 4. While applying the penalty of deposit, can one party require the other party to actually perform the contract? If the nature of the deposit is to cancel the deposit, one party can't ask the other party to actually perform the contract while applying the deposit penalty; However, if it is a default deposit, a contract deposit or an agreed deposit, one party may require the other party to actually perform the contract while applying the deposit penalty.

1, deposit and deposit 1. 1 deposit refers to the money kept by one or both parties in the other party or deposited in a third party to ensure the performance of the contract. 1.2 There are two popular forms of deposit in real economic life: one is the deposit required by the parties to the contract to ensure the realization of their creditor's rights. Another form of deposit is the deposit paid by both parties to a third party (usually a notary office) recognized by * * * to ensure the performance of their respective obligations when the contract is established. 1.3 the deposit also has the same function as the deposit to realize the guarantee contract, but it does not have the function of double return. Moreover, the parties can agree on the functions of the deposit themselves (such as the guarantee for the conclusion of the contract, the conditions for the contract to take effect, the proof of the establishment of the contract, or the expenses for the termination of the contract). These functions do not apply to margin. 1.4 There is no limit on the time and amount of deposit retention or withdrawal. Both parties can agree on their own before and during the performance of the contract; The amount of deposit can be equal to the amount of debt, unlike the total amount of deposit, which must not exceed 20% of the total price of the main contract and must be paid when the contract is agreed or before the contract is signed. 2. Deposit and advance payment 2. 1 The concept of advance payment is that the recipient of a product or service takes the lead in paying part of the price or labor remuneration to the other party before the other party performs the contract in order to show sincerity in performing the contract or provide certain funds for the other party to perform the contract. In practice, deposit, advance payment and honest credit payment are all aliases of advance payment. 2.2 Difference between the two 2.2. 1 The purpose of advance payment is to take the lead in paying a certain amount as the sincerity of performance, or take this amount as part of the funds needed for performance. So the advance payment is actually part of the contract money, but the deposit is not. 2.2.2 The down payment can be made after the main contract is formally concluded (i.e. the contract reservation stage) or after the contract is concluded. Generally speaking, advance payment can only be requested after the contract is formally signed. 2.2.3 The function of down payment is to ensure the performance of the main contract. Before a sales contract is concluded, both parties are generally obliged to sign a formal contract on time; The deposit after the conclusion of the contract is mainly to urge both parties to enter the substantive performance stage of the contract. But as far as the advance payment is concerned, when the contract is invalid or there are reasons for breach of contract, the same amount can be refunded, which is not punitive. 2.3 If the meaning of payment is unclear or the deposit clause or deposit contract cannot be legally recognized, it is presumed to be advance payment. 3. Deposit and liquidated damages 3. 1 The concept of liquidated damages: liquidated damages are a certain amount of money paid by one party to the other party when the contract is concluded in advance or stipulated by law. 3.2 Difference: The former is the way of guarantee, and the latter is the liability for breach of contract.

1. Deposit type: default deposit, signing deposit, signing deposit, signing deposit and signing deposit. 2. Characteristics of the deposit: the required form (written form) and the required object. 3. Deposit amount: ≤ 20%. 4. Deposit penalty: breach of contract (fundamental breach of contract, incomplete performance-proportion), refusal to conclude, and termination of contract. 5. Judgment of deposit:

Chapter VI Deposit Guarantee Law Article 89 The parties may agree that one party shall pay a deposit to the other party as a guarantee for the creditor's rights. After the debtor performs the debt, the deposit shall be used as the price or recovered. If the party paying the deposit fails to perform the agreed debt, it has no right to demand the return of the deposit; If the party receiving the deposit fails to perform the agreed debt, it shall return the deposit twice. Article 90 The deposit shall be agreed in writing. The parties shall stipulate the time limit for the payment of the deposit in the deposit contract. The deposit contract shall take effect from the date when the deposit is actually paid. Article 91 The amount of the deposit shall be agreed by the parties, but it shall not exceed 20% of the subject matter of the main contract. Interpretation of Guarantee Law VI. Interpretation of the deposit part Article 115 Where the parties agree to pay the deposit as a guarantee for concluding the main contract, if the party paying the deposit refuses to conclude the main contract, it has no right to demand the return of the deposit; If the party receiving the deposit refuses to conclude a contract, it shall return the deposit twice. Article 116 Where the parties agree that the payment of the deposit is an important condition for the formation or entry into force of the main contract, the party paying the deposit will not pay the deposit, but the formation or entry into force of the main contract will not be affected if the main contract has been performed or the main part has been performed. Article 117 After the deposit is paid, the party paying the deposit may terminate the main contract and lose the deposit as agreed in the contract, while the party receiving the deposit may terminate the main contract and pay double the deposit. After the termination of the main contract, the provisions of the Contract Law of People's Republic of China (PRC) shall apply. Article 118 Where the parties have delivered the lien, deposit, deposit, contract money, deposit or deposit, but the nature of the deposit has not been stipulated, and the parties claim the right of deposit, the people's court shall not support it. Article 119 Where the actual amount of deposit paid is more than or less than the agreed amount, it shall be deemed as a change of the deposit contract; If the party receiving the deposit raises an objection and refuses to accept the deposit, the deposit contract will not take effect. Article 120 If one party delays in performance or commits other breach of contract, so that the purpose of the contract cannot be achieved, the penalty of deposit may be applied. Unless otherwise provided by law or agreed by the parties. If one party fails to fully perform the contract, the deposit penalty shall be applied according to the proportion of the unfulfilled part to the contents agreed in the contract. Article 121 Where the amount of deposit agreed by the parties exceeds 20% of the amount of the subject matter of the main contract, the people's court shall not support the excess. Article 122 If the main contract cannot be performed due to force majeure or accidents, the penalty of 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 penalty of deposit shall apply. The party punished by the deposit may claim compensation from the third party according to law.