After making the deposit that buy a house, as a result of all sorts of reasons, do not want to buy a house again. But, the deposit that buy a house also is not a small amount, the sentence loss that does not return but not small. So, do not want to room deposit is bought to you can be returned if buying a house? How to after buying a room to make deposit, want to buy this to do again?
One, deposit can be retreated
Develop business to pass subscribe commonly before contract of business of house of as formal as vendee autograph commodity at present, order, book wait for means to receive deposit to vendee. If vendee does not sign contract or both sides to be not amounted to to the clause of the contract with development business,become unanimous opinion, most development decides gold is not retreated. The agreement of this kind of deposit or subscription, very adverse to vendee, make vendee is in the condition of person of be enslaved to be enslaved to when the autograph is made an appointment with, below the pressure that vendee often does not remove in deposit, accept the imparity provision that develops business against one's will, oneself true meaning also cannot be reflected in the contract, have the principle that breaks contract fairness, justice.
A lot of person that buy a house thinks, like buying room deposit and other commodity to trade, resemble shopping usually same, making deposit is this thing is staying to me, I prepared to want, if I did not want the thing, deposit calculates me to give your compensation, go up to the house with this analogize, once signed book of commodity house subscribe,think, whatever reason house was not bought finally, deposit can be returned with respect to scarcely returned, some people even waiver resumptive deposit, this is a kind of misunderstanding actually. Actually deposit can be removed. Can retreat in the deposit below what condition so, the deposit below what condition cannot be retreated?
" People's Republic of China assures law administration of justice explains " the sixth part sets the 115th times: Party agreement serves as those who conclude master contract assures with consign deposit, reject to conclude to the one party that pays deposit of master contract, have no right to ask to return return deposit; The one party that receives deposit rejects those who sign a contract to order, ought to times doubler return return deposit.
" top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 4th regulation: Betray a person to pass subscribe, order, book wait for means to receive deposit to serve as those who conclude contract of commodity house business assures to vendee, if fail to conclude because of reason of party one party contract of commodity house business, ought to handle about the regulation of deposit according to law; Because cannot return duty the main content at party both sides, bring about contract of commodity house business to fail to conclude, betray a person to ought to return deposit return vendee.
Accordingly, the deposit that buy a house can be removed, but the person that buy a house wants to counter-purchase room deposit must the requirement that be good law sets. Because buy a house person the reason fails to conclude open to booking a contract, the person that buy a house has no right to ask to return return deposit. To development business, if be the economic interest with higher pursuit and conclude with other open to booking a contract; Did not obtain before opening to booking licence, sign with the person that buy a house namely open to booking a contract; Did not inform the person that buy a house to already existed in house of the commodity before paying deposit close down, the fact such as guaranty, develop business ought to times doubler return return deposit. Because cannot return duty basically have at developing business and the main content of the person that buy a house, if both sides opens to booking the main provision of the contract to cannot talk things over,appear the circumstance such as force majeure, bring about those who open to booking a contract to fail to conclude, develop business to ought to return deposit return vendee.
2, the legal provision of deposit
So far, the legal provision that involves deposit has below: " contract law " , " assure law " , " assure law administration of justice explains " , " judicatory of dispute of contract of commodity house business explains " . Sectional regulations has: " commodity house sale runs way " etc. " contract law of People's Republic of China " set the 115th times as follows to deposit problem: Of the debt that agrees to the one party nonperformance that pays deposit, have no right to ask to return return deposit; Of the debt that the one party nonperformance that receives deposit agrees, ought to times doubler return return deposit. " People's Republic of China assures law " the 89th regulation: Party can agree one direction the other side gives those who pay deposit to serve as creditor's rights to assure. Of the debt that agrees to the one party nonperformance that pays deposit, have no right to ask to return return deposit; Of the debt that the one party nonperformance that receives deposit agrees, ought to times doubler return return deposit. " People's Republic of China assures law administration of justice explains " the sixth part sets the 115th times: Party agreement serves as those who conclude master contract assures with consign deposit, reject to conclude to the one party that pays deposit of master contract, have no right to ask to return return deposit; The one party that receives deposit rejects those who sign a contract to order, ought to times doubler return return deposit.
" top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 4th regulation: Betray a person to pass subscribe, order, book wait for means to receive deposit to serve as those who conclude contract of commodity house business assures to vendee, if fail to conclude because of reason of party one party contract of commodity house business, ought to handle about the regulation of deposit according to law; Because cannot return duty the main content at party both sides, bring about contract of commodity house business to fail to conclude, betray a person to ought to return deposit return vendee. Additional, build a department " commodity house sale runs way " regulation: "Accord with commodity house the estate of term of sale develops a business, in conclude before contract of commodity house business, book money property cost to vendee collection, conclude when contract of commodity house business, what collect fee ought to instead room money paid for something purchased or received for something sold, party fails to conclude of contract of commodity house business, estate development company ought to be returned to vendee what still collect fee " .
The applicable need of deposit accords with the following conditions:
1, deposit contract is practice contract, need the real pay of deposit.
Deposit is like not real pay, perhaps do not conclude in debt of contract of nonperformance of party one party when master contract, cannot applicable deposit is punished criterion.
2, master contract must effective.
This is decided by the dependency place of deposit contract. If master contract is invalid or by cancel, even if party already had consign and the fact that receive deposit, also cannot applicable deposit is punished criterion. But, party can agree the effectiveness of deposit contract is independent at master contract, namely master contract is invalid deposit contract does not disable certainly however.
3, party nonperformance debt and cannot avoid surely duty case.
" assure explanation " punish a provision that a few kinds of special situations make to applicable deposit:
1, regard nonperformance as the circumstance of the debt that is assured.
Be fulfilled tardily because of party one party or have action of other beak a contract, cause contract purpose to cannot come true, OK and applicable deposit is punished criterion. But the except that law has a regulation additionally or party has an agreement additionally.
2, the deposit when fulfilling a contract not completely is punished criterion.
Party one party fulfils a contract not completely, ought to according to the scale that did not fulfill partial place to occupy contract agreement content, applicable deposit is punished criterion.
3, because force majeure, accident causes what master contract cannot fulfill, not applicable deposit is punished criterion.
Because the contract concerns beyond the fault of the 3rd person, cause master contract to cannot be fulfilled, applicable deposit is punished criterion. Get the one party party that deposit punishs, can chase after countervail to the 3rd person lawfully.
3, how to avoid deposit pitfall
Want to avoid deposit trap not to sign subscribe agreement with development business above all, do not make deposit. In commodity house trade in the process subscribe book is signed before signing contract of commodity house business, make deposit and either one when sign contract of commodity house business needs classics program, both sides agrees via talking things over, can sign contract of commodity house business directly.
If contract of commodity house business is not signed, the person that buy a house is OK all over and retreat, do not take any future trouble. It is next will " deposit " write into " subscription " , " imprest " , " bail " , " sincerity gold " , " cash pledge " , " contract gold " etc, what once building business contract is not signed,make money so can go back, the legal basis of go back has two: It is " assure law administration of justice explains " the 118th regulation: Party consign keeps buy gold, assure gold of gold, bail, contract, cash pledge or subscription, but those who do not have conventional deposit quality, party holds deposit right, people court does not grant to support; 2 be " top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 4th regulation: Betray a person to pass subscribe, order, book wait for means to receive deposit to serve as those who conclude contract of commodity house business assures to vendee, because cannot return duty the main content at party both sides, bring about contract of commodity house business to fail to conclude, betray a person to ought to return deposit return vendee.
Additional, judicatory practice thinks commonly, "Subscription " waiting for charge is imprest property, because both sides did not sign contract of commodity house business to developed business to obtain this money, belong to undeserved benefit, accordingly because press so undeserved that the law of benefit sets will handle. It is the content with definite when signing subscribe agreement advantageous to oneself agreement again, if what condition issues deposit to be able to be retreated, do not retreat the legal consequence of deposit and responsibility of breach of contract how to be assumed.
4, how to retreat deposit ability to succeed
According to the concerned regulation of our country active law, its do not have the quality of deposit, the one party of consign subscription holds deposit right, people court does not grant to support. Usually, of consign subscription inspect consign imprest. Additional, release according to management board of natural resources of town house land " the announcement that develops enterprise commodity house to book act about normative estate " concerned regulation, estate develops enterprise collection subscription, subscription amount ought to be in the 5 millesimals less than of total house price, both sides is in after signing commodity to the room opens to booking a contract or sell a contract, subscription should be returned immediately return or price of take out house.
The person that buy a house is in after paying subscription, do not buy those who book a building, subscription presses the method processing that books consultative agreement, but follower lists a situation, estate develops a business ought to the subscription that sum returns the person that still buy a house to pay:
(1) estate develops an enterprise to did not sign subscription of written agreement collection;
(2) signed written agreement did not make an agreement to the processing of subscription or the agreement is ambiguous;
(3) both sides is right open to booking a contract or sell contract provision exists difference, cannot talk things over consistent;
(4) room of book of building of advertisement, carry out, sample and actual state not of conform to.
Pass the analysis of above, we know countermand gold has certain requirement, because contract provision is not amounted to,become unanimous opinion to be able to be retreated namely, additional, must be will sign a contract inside the deadline that agrees in subscribe book, want to retreat deposit to must want to prove this. The record that the both sides when the person that buy a house can talk through term and conditions of contract alters will prove, the recording that also can talk through both sides will prove. Itself of the person that some buy a house does not want this house, attribute action of break a contact, but the goal that also achieved countermand gold through raising the kind of compensatory agreement. Additional, wait for the project that does not have sale licence or property right card to in-house subscribe, because itself does not have term of sale, accordingly any circumstances issue deposit to be able to be retreated, need not do obtain evidence in great quantities the job, sue directly can.
