1. The liquidated damages shall be agreed by the parties or directly stipulated by law. When one party breaches the contract, it pays a certain amount of money or other benefits to the other party.
2. Deposit refers to the money or other substitutes paid by one party to the other party in advance according to a certain proportion of the contract amount when the contract is concluded, or after the contract is concluded and before the performance, in order to ensure the performance of the contract.
3. According to the regulations, 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.
4. If both the deposit and the liquidated damages are agreed in the contract, it is generally necessary to evaluate the actual loss first. If there is no loss or the loss is less than the deposit, directly claim the deposit; If the loss is greater than the deposit, it is required to compensate the agreed liquidated damages.
Does the contract come into effect if the deposit is paid without signing the gold?
1. Down payment contract established.
The establishment of a deposit contract is one of the prerequisites and essential elements for the establishment of a deposit contract. The deposit contract shall take effect when the deposit is delivered.
2. The parties concerned have corresponding capacity for civil conduct.
The entry into force of any contract depends on the fact that the parties have corresponding elements of civil conduct. The entry into force of the deposit contract requires the parties to have full capacity for civil conduct, to be able to fully identify their actions and foresee their consequences, and to have full capacity for expressing their will.
3. Meaning means truth
The content of the deposit contract should be the true intention of the parties.
4. The content and form of the deposit contract shall not violate the legal and social interests.
The legal expression of will is legally binding, and the illegal contract cannot be protected by law, nor can it produce the legal effect expected by the parties. The content and form of the deposit contract shall not violate the mandatory provisions of the law, nor shall it violate public order and good customs.
5, the actual delivery of the deposit
The deposit contract is a practical contract, which takes effect from the date when the deposit payer delivers the deposit. After the establishment of the deposit contract, the parties shall perform the obligation of deposit payment in accordance with the provisions of the deposit contract.
6. The main contract is valid.
The deposit guarantee contract is a subsidiary contract concluded by the parties to ensure the performance of the main contract. The validity of the deposit guarantee contract depends on the validity of the main contract. When the main contract is invalid, the deposit contract is invalid. However, unless otherwise agreed in the deposit contract, the effectiveness of the deposit contract can exist independently of the main contract according to its agreement.
To sum up, when the deposit and liquidated damages exist at the same time, the parties can only choose one of them to exercise. According to the relevant laws and regulations, the penalty clause and the deposit clause cannot be used at the same time.
Legal basis:
People's Republic of China (PRC) Civil Code
Article 577
If one party fails to perform the contractual obligations or fails to meet the contractual obligations, it shall be liable for breach of contract, such as continuing to perform, taking remedial measures or compensating for losses.
Article 588
If the parties agree on both liquidated damages and deposit, when one party breaches the contract, the other party may choose to apply the liquidated damages or deposit clause.
If the deposit is not enough to make up for the losses caused by one party's breach of contract, the other party may demand compensation for the losses exceeding the deposit amount.