The landlord sold the house and did not actually receive a deposit of 500,000 yuan, but finally compensated 20% of the liquidated damages. Why exactly?
During the sale process, the landlord, the buyer, and the agent will sign an intermediary agreement. The content of the intermediary agreement is generally a standard clause prepared by the intermediary in advance, and the blank space is filled by the intermediary. However, there is a clause in the intermediary agreement that is directly related to the landlord's vital interests but is easily overlooked by the landlord - that is, in the intermediary agreement, does the landlord authorize the intermediary to collect the deposit on behalf of the landlord?
If there is authorization, and the buyer pays the deposit to the agent, and then the seller does not want to continue selling for various reasons, then does the seller need to bear the deposit penalty or breach of contract liability?
Let's take a look at a 2016 example.
1. Statement of the case
On January 3, 2016, Xia and Yuan signed the "Real Estate Sale and Purchase Intermediary Agreement" under the intermediary of the intermediary, stipulating that Yuan would give house A to Xia, Xia should pay a deposit of 500,000 yuan, and Yuan authorized the intermediary to keep the deposit.
The Protocol 33. It is agreed that the two parties confirm that they will go to the intermediary to sign the model text of the "Shanghai Real Estate Sale and Purchase Contract" within 180 days after the signing of the above agreement, and if Yuan does not sign the above model text in accordance with the agreement, the real estate or the relevant right holder raises objections and this agreement cannot be performed, the deposit shall be returned to Xia doubleIf Xia fails to sign the above-mentioned model text in accordance with this agreement, the deposit paid to Yuan will not be returned.
Article 7 of the agreement stipulates the liability for breach of contract: after the effective date of this agreement, both parties shall perform in good faith, if either party fails to perform according to this agreement, and the other party still fails to perform after the other party's written reminder, the other party has the right to demand that the other party bear the total daily price of 0If this agreement is terminated due to the above reasons, the breaching party shall pay liquidated damages to the non-breaching party according to 20% of the total price (3.15 million) agreed in this agreement.
After the agreement was signed, the landlord said that because his family did not agree to sell the house, he would not continue to sign the online sales contract, and informed the buyer that he had not received the deposit, so the buyer could go directly to the intermediary to collect the deposit.
In this case, it is very obvious that the landlord has breached the contract, so the question is whether the deposit penalty can be applied at this time, if the deposit of 500,000 yuan is kept by the intermediary and the landlord has not actually received it?
Does the buyer have the right to opt out of the deposit penalty and apply a 20% penalty clause?After all, the deposit penalty is 500,000 yuan, and the liquidated damages penalty is 630,000 yuan
Finally, at the suggestion of the lawyer, Xia chose to apply the 20% liquidated damages clause.
2. The Court's View
The "Real Estate Sale and Purchase Intermediary Agreement" signed between Xia and Yuan is an expression of the true intentions of both parties, and does not violate the provisions of the law, and both parties shall comply with it. Xia had paid the deposit as agreed, but Yuan unilaterally proposed to terminate the intermediary agreement and refused to perform the contractual obligations, which was obviously a breach of contract and should bear the corresponding liability for breach of contract.
During the trial, both parties agreed to terminate the contract, which was granted by the court. After the contract was terminated, the deposit should be returned to Xia, because the deposit was kept by the intermediary, and the three parties agreed to return it by the intermediary, which was supported by the court.
As for the liability for breach of contract, the agreement stipulates that if one party terminates this agreement due to breach of contract, the breaching party shall pay liquidated damages to the non-breaching party according to 20% of the total price agreed in this agreement, so Xia's claim for liquidated damages of 630,000 yuan is legal and justified, and the court supports it. As for Yuan's defense that the liquidated damages were too high, in view of Xia's actual losses and the fact that the liquidated damages have both compensatory and punitive functions, the court did not accept Yuan's defense.
3. Legal provisions
Article 588 of the Civil Code provides that "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 clauses." 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. ”
Fourth, lawyer Cheng Miaomiao's suggestion
When signing an intermediary agreement for the sale and purchase of real estate, it is necessary to read the content clearly, and second, to think clearly whether it will not be in default. Many people think that I just received a deposit in the intermediary agreement, and when the time comes, it is a big deal to return the deposit if I breach the contract. This is a very wrong idea, and it depends on whether there is a liquidated damages clause in the agreement.
I have seen a lot of ** party said that I only received the deposit yesterday, today I said not to sell and returned the original deposit, or I confiscated the deposit, it was collected by the intermediary, the intermediary has returned, the buyer has no loss, I compensate one or two thousand enough, it seems that the ** party seems to be reasonable.
Don't take contracts as child's play, in the adult world, all actions have legal consequences. The deposit penalty is even more severe. As long as the landlord authorizes the agent to keep the deposit on behalf of the buyer, the buyer actually pays the deposit and the *** party agrees, then, once either party breaches the contract, the deposit penalty is properly applied, and there is not much room for defense.
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