Liquidated damages are a certain amount of money agreed by the parties or directly stipulated by law, which is paid to the observant party when the defaulting party fails to perform the contract. According to relevant laws and regulations, liquidated damages can be divided into statutory liquidated damages and agreed liquidated damages. Statutory liquidated damages refer to the proportion or scope of liquidated damages stipulated by some laws and regulations; Agreed liquidated damages refer to the proportion or amount of liquidated damages voluntarily agreed by both parties when signing the contract. Starting from the legal consequences of liquidated damages, legal theorists divide liquidated damages into compensatory liquidated damages and punitive liquidated damages. The school that supports compensatory liquidated damages believes that liquidated damages are mainly to make up for the losses suffered by the observant party. Scholars who hold a punitive view believe that liquidated damages are mainly a kind of punishment agreed in advance by the breaching party to ensure the performance of the contract.

However, judging from the judicial practice in China, there are both, but mainly compensatory compensation. Article 114th of the Contract Law stipulates that "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 breach of contract, or they may agree on the calculation method of the amount of damages for breach of contract. If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; If the agreed liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to reduce them appropriately. If the parties delay the performance of the agreed liquidated damages, the breaching party shall also perform the debt after paying the liquidated damages. "

Therefore, when signing the contract, it is necessary to make a clear agreement on liquidated damages. Especially in the period when the real estate market is active and has a large increase, it is best for buyers to agree on a higher penalty. This is not only a constraint on the family, but also enables them to get maximum compensation after their rights and interests are violated.

deposit

Deposit means that the parties to a contract pay a certain amount of money to the other party in advance to ensure the performance of the contract. Article 115 of the Contract Law stipulates that "the parties may, in accordance with the provisions of the Guarantee Law of People's Republic of China (PRC), 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 double the deposit. " This is what we usually call deposit penalty. Article 116 stipulates that "if the parties agree on both liquidated damages and deposit, when one party breaches the contract, the other party may choose to apply the terms of liquidated damages or deposit." . Article 90 of the Guarantee Law of People's Republic of China (PRC) stipulates that "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 stipulates that "the amount of deposit shall be agreed by the parties, but it shall not exceed 20% of the subject matter of the main contract". Article 4 of the Supreme People's Court's Interpretation on Several Issues Concerning the Applicable Law in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that "if the seller accepts the buyer's deposit as a guarantee for concluding the commercial housing sales contract through subscription, ordering or reservation, and fails to conclude the commercial housing sales contract due to one party's reasons, it shall be handled in accordance with the provisions of the deposit law; If the commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the seller shall return the deposit to the buyer. " Therefore, from a legal point of view, the deposit has a dual nature. First, it can be used as a guarantee to ensure the performance of the contract. Second, it can prove the establishment of the contract. As a double-edged sword, deposit is also punitive. That is, the party paying the deposit fails to perform the contract and has no right to demand the return of the deposit; If the party accepting the deposit fails to perform the contract, it shall double the deposit. As a legal form, law has its specific requirements: 1, and the formal requirements must be signed in writing; 2. Limit the amount. The total amount of deposit shall not exceed 20% of the subject matter of the contract; In addition, when choosing compensation, you can only choose one of deposit and liquidated damages.

advance payment

There is only one word difference between deposit and deposit, but the legal nature is very different. Deposit is not a standardized concept, but only as an advance payment in law. It is a part of the advance payment, a means of payment for the parties, and has no guarantee nature. If the contract is fulfilled, it will only be used to offset the house payment. If it is not fulfilled, it can only be returned in full. Article 118 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law of People's Republic of China (PRC) stipulates that "the people's court shall not support the parties who have delivered the retention money, guarantee money, deposit, contract money, deposit or deposit, but have not agreed on the nature of the deposit, and the parties claim the right of deposit". It can be seen that if the parties specify the "deposit" in the contract but do not stipulate the nature of the deposit, the penalty for the deposit cannot be applied. Therefore, property buyers must be careful not to make mistakes when signing the contract, otherwise they will regret it.

deposit

Sincerity gold, that is, intention gold, is a name from Hong Kong and Taiwan more than ten years ago. This is reflected in the contract signed by the intermediary and the buyer and seller. In fact, there is no such thing as a trust fund in law. The reason why the intermediary and the buyer and seller sign the terms of the trust fund is mainly because the trust system in China's trading market is not perfect, and the trading subjects often violate the principle of good faith for their own interests, thus damaging the interests of one party. Intermediary companies sometimes confiscate sincerity money in the name of buyer or seller's insincerity or breach of contract for their own benefit, regardless of whether the transaction is successful or not. In fact, this practice is against the law.

Intermediary companies are generally used as intermediaries for housing sales or agents for buyers and sellers. Since the former broker is a third person independent of the buyer and the seller, according to Article 426 of the Contract Law, "If the broker facilitates the establishment of the contract, the client shall pay the remuneration as agreed. If there is no agreement or unclear agreement on the remuneration of the broker, and it cannot be determined according to the provisions of Article 61 of this Law, it shall be determined reasonably according to the services of the broker. Where an intermediary provides media services for concluding a contract, the remuneration of the intermediary shall be borne equally by both parties to the contract. If the broker facilitates the establishment of the contract, the expenses of the intermediary activities shall be borne by the broker. " . Article 427 stipulates that "if the broker fails to facilitate the conclusion of the contract, he may not ask for payment of remuneration, but may ask the client to pay the necessary expenses for engaging in intermediary activities." It can be seen that the intermediary can only ask the buyer and the seller or one party (with special agreement) to pay if the contract between the buyer and the seller is established. As the latter, the intermediary is the agent of one of the buyers and sellers. According to the second paragraph of Article 64 of General Principles of Civil Law of People's Republic of China (PRC) and General Principles of Civil Law of People's Republic of China (PRC), "the entrusted agent exercises the agency right according to the entrustment of the principal, …". Paragraph 2 of Article 66 stipulates that "if an agent fails to perform his duties and causes damage to the principal, he shall bear civil liability." . Article 405 of the Contract Law stipulates that "if the agent completes the entrusted affairs, the principal shall pay him remuneration. If the entrustment contract is dissolved or the entrusted affairs cannot be completed due to reasons not attributable to the trustee, the principal shall pay the corresponding remuneration to the trustee. Unless otherwise agreed by the parties, such agreement shall prevail. " . Article 406 stipulates that "if a paid entrustment contract causes losses to the principal due to the fault of the agent, the principal may demand compensation for the losses. If the gratuitous entrustment contract causes losses to the principal due to the intentional or gross negligence of the agent, the principal may demand compensation for the losses. If the trustee exceeds his authority and causes losses to the principal, he shall compensate for the losses. " From the provisions of General Principles of Civil Law and Contract Law, it can be seen that in this legal relationship, the intermediary, as the agent of one party, should engage in agency activities in accordance with the entrustment contract and get paid.

Therefore, whether as an intermediary or as an agent of one of the buyers and sellers, there is no question of sincerity. Property buyers must read the specific terms of the contract before signing the contract, especially the handling method of sincere money.

appoint

Commission refers to the labor remuneration paid by the broker (real estate agent) to the client (buyer or seller) after providing the contract opportunity or completing the intermediary service of the client as a contract introducer. Therefore, the commission is the income from the services provided by the broker in the house buying and selling activities, and the broker has the right to collect the commission according to the contract after completing the intermediary activities. The standards for collecting commissions shall be agreed by both parties or refer to commercial practices, and shall not violate national laws, regulations and policies. At present, the real estate agency fee in Shanghai is generally charged according to the transaction amount (0.5-2.5% for the last home, 1% for the next home).