What are the fundamental differences between a deposit and an advance. What is a deposit: definition of the concept, nuances of its design

A large number of offers in the housing market lead to high competition. The real estate seller wants proof of the buyer's intent. To confirm the readiness to conclude a transaction, you can make an advance payment, advance or deposit. Consider the opinion on the difference between such payments.

How to secure a contract?

When concluding a contract, each of the parties wants to receive certain guarantees. The buyer does not want the seller to refuse the transaction or transfer the goods to another person. The seller, in turn, is afraid of the buyer's refusal.

In order for the parties to avoid refusal before the conclusion of the contract, the Civil Code provides for a number of measures. Among them:

deposit;
prepayment.

Each of the concepts includes the transfer by the buyer to the seller of a certain amount of money as payment for the contract and receipt of a receipt.

An alternative option for securing a transaction is a pledge. It involves the transfer of not cash, but an object of material value (real estate, vehicle, jewelry). However, this option is rarely used in practice.

Briefly about the deposit

The most popular transaction security option is deposit. The procedure for its provision is provided for in Article 380-381 of the Civil Code of the Russian Federation.

Deposit features:

the amount is counted towards the payment;
the size of the payment is symbolic;
the deposit is of a security nature;
the transfer of funds is made in writing;
when transferring a large amount, witnesses of each side can be involved;
if there is a preliminary contract, the deposit ensures the conclusion of the contract on its terms;
if the seller refuses to complete the transaction, then he returns the doubled amount;
if the initiator of the refusal is the buyer, then the deposit remains with the seller;
if by refusing to complete the transaction one party caused damage to the other, then the amount of damage is subject to payment, taking into account the deposit.

Important! If a receipt for the transfer of the deposit is not issued, then the amount paid is considered an advance payment.

Differences in prepayment

The deposit of funds before the conclusion of the contract is considered prepaid.

This form of payment is used primarily to pay for work or delivery of goods. The seller provides the goods or performs work only after the preliminary payment of funds to pay for the contract in whole or in part.

In the case of the acquisition of goods, for example, the purchase and sale of real estate, prepayment is rarely used. It is not advisable to transfer a significant amount of money to a private person, even if there is a receipt.

Prepayment proves the desire of the buyer to conclude a contract. If the seller accepts cash, he confirms his intention to sell the goods. The amount of the advance payment is counted towards payment under the contract.

Advance Features

In turn, the advance is not a security measure. An advance is understood to be money that is paid as payment under the contract.

Distinctive features of the advance:

the payment is a partial payment under the contract;
an advance payment is made for the amount of work that is actually performed (during the performance of work);
the contract must include conditions for making advance payments;
in case of refusal to execute the transaction, the advance payment is subject to return in full (when making funds for the goods);
the procedure for providing an advance is not regulated by law.

If the contract does not provide for the procedure for making advance payments, then when depositing funds, you must issue a receipt. It is advisable to notarize the document. Otherwise, the unscrupulous owner may refuse to return the funds.

The concept of an advance is also provided for in labor law. The Labor Code does not include a precise definition. The law provides for the need to calculate employees at least 2 times a month. In practice, the advance is considered to be the payment of wages for the first 15 days of the working month.

Difference between advance, deposit and prepayment

When buying a home, the buyer has the right to make an advance, prepayment or deposit. The main condition is the consent of the owners to accept the funds. Consider the difference between payments.

The advance is not a security deposit. This is a partial payment for the object after the conclusion of the contract. In case of refusal to conclude the transaction, the funds are returned to the buyer. The amount can be any, at the discretion of the parties. In practice, the amount of payment is 20% of the contract amount.
Prepayment ensures the right of the buyer to receive the goods. If the conditions are not met, the buyer may demand interest for the use of other people's money. The prepayment amount can reach 100% of the contract price.
The difference between the deposit is that it is aimed specifically at securing the transaction. If the agreement is violated by the seller, then the amount is returned in double size. The buyer who refuses loses the deposited funds. The amount is not limited, but rarely exceeds 5% of the contract price.

Restrictions on the use of the deposit

The law does not provide for restrictions on the use of prepayment and advance payment. However, when making a deposit, the following features must be taken into account:

When concluding a contract for the sale of real estate, the contract is subject to state registration with Rosreestr. The document is endowed with legal force only after registration. If the contract includes a requirement to make a deposit, then the condition is considered invalid until the filing of documents for registration. Therefore, upon termination of the agreement, it is illegal to demand their return in double the amount.
When buying an apartment, you need to study the documents for the property. All owners must be present at the conclusion of the deposit agreement. If the funds are transferred to one of them, in the absence of a power of attorney from other owners, the transfer of the deposit is considered illegal.
If the owners carried out redevelopment of the dwelling, information about the work carried out should be indicated in the technical documentation. When transferring the deposit, the buyer must familiarize himself with the documents.

When depositing funds to the seller, the buyer must exercise caution. Even written registration will not help the return of funds from an unscrupulous owner. Therefore, it is advisable to involve witnesses and notarize the transfer of funds.

Today, to conclude a treaty, it is no longer enough just to shake hands. For this reason, in the practice of making various transactions, including real estate transactions, a deposit and an advance are increasingly used. Advance payment and deposit are the most common methods of prepayment for a transaction. However, often people do not see the difference between a deposit and an advance, and this, in turn, can lead to undesirable consequences for the participants in the transaction. What kind of contract should be concluded - about an advance payment or about a deposit? To understand, it is necessary to understand the very legal nature of the terms "deposit" and "advance".

So what is a deposit?

A deposit is a sum of money issued by one party to another against future payments under a transaction to ensure its execution and confirm the seriousness of the intentions to carry out the transaction. A deposit is a way to ensure the fulfillment of obligations, i.e. it is worth resorting to a deposit in order to ensure the performance of the contract. The concept of a deposit is defined in Article 380 of the Civil Code of the Russian Federation (CC RF).

What is an advance?

An advance is an amount that is transferred before a transaction is made by one party to the other against the payments due under the transaction. The purpose of paying an advance is similar to a deposit - confirmation of the reality of intentions in the transaction, but without ensuring performance. The Civil Code does not contain separate articles on advance payments.

What's the Difference?

The difference lies in the consequences of the termination and non-fulfillment of the obligation - the security function of the deposit. If the transaction is completed, then the parties do not notice the difference between the advance payment and the deposit. However, if the transaction does not occur in the case of an advance, it is simply returned. The party guilty of the disruption of the transaction does not bear any sanctions under the advance agreement, unless the parties have provided for some kind of penalty in the advance agreement. In the event that the transaction did not take place due to the fault of the party that transferred the deposit (buyer), the deposit is lost and remains with the recipient of the deposit (seller). If the transaction did not take place due to the fault of the recipient of the deposit, the amount of the deposit must be returned in double size, i.e. if the deposit is 100 rubles, then the recipient of the deposit is obliged to return 200 rubles. This rule is contained in Article 381 of the Civil Code of the Russian Federation and defines the most significant differences between an advance payment and a deposit. The deposit allows the parties to control each other. The recipient of the deposit controls the money, and the payer controls the responsibility in the form of a penalty in the amount of the deposit. This is the security function of the deposit.

Is it possible to deposit money without drawing up documents?

In the case of real estate transactions, the deposit always exceeds these amounts, so the deposit agreement must always be in writing. This provision is enshrined in Article 380 of the Civil Code of the Russian Federation. This allows the parties to confirm the fact of depositing money. The deposit agreement can be drawn up in any form in the form of an agreement on the letterhead of an organization or real estate agency, etc. The most important thing is that it be drawn up correctly and contain the amount of the deposit and the following details: Full name. of the parties or the name of the organization, their place of residence or legal address, passport data or details of the organization, the terms for fulfilling obligations, the subject of the agreement (real estate object) indicating the address and other characteristics that make it possible to accurately determine the object, the signatures of the parties. The same rules apply to the advance payment agreement. Although in the case of an advance, it is possible to draw up a unilateral receipt from the recipient of the advance.

Doubts - deposit or advance?

An oral agreement on a deposit entails the consequences provided for in Article 162 of the Civil Code of the Russian Federation, that is, the parties are deprived of the right to refer to witness testimony, but can provide written evidence. An agreement to receive a deposit or an advance indicates the conclusion of an agreement. In case of doubt about the assignment of the amounts paid under the agreement, these amounts will not be considered a deposit, but an advance payment that does not perform a security function, but is part of a future payment. Violation of the form of the deposit agreement, until proven otherwise, leads to the same consequences.

In the practice of realtors, there is the concept of a "deposit", however, if the money is paid to a real estate agency, this term is more suitable for an advance payment or security deposit. The only function of this amount is to confirm the seriousness of the intentions to carry out the transaction, since this "deposit" is usually returned in the event of a failure of the transaction by either party. For this reason, there is a serious confusion in terms and in the professional real estate environment. However, if, due to such confusion, a document is drawn up in which the amount will be called the deposit, and it will be indicated that this money is paid to the seller, this will lead to the launch of the rules on the deposit with all the ensuing consequences.

Restrictions on the application of the deposit

There are several groups of contracts that are considered concluded from the moment of state registration. Such contracts include all transactions with residential real estate. Contracts with non-residential premises and land plots are considered concluded from the moment they are signed. This creates a situation where the inclusion of a provision on a deposit in an agreement that comes into force from the moment of state registration, and the payment of the amount of the deposit before the state registration of such an agreement will not lead to the appearance of sanctions provided for by the provisions on the deposit. This is due to the fact that such agreements are considered concluded from the moment of state registration by virtue of clause 3. article 433 of the Civil Code of the Russian Federation. Fortunately, in the event of such situations, the courts tend to recognize this amount in advance, and it is still returned to the owner, but you will have to forget about the double return in this situation.

The same rule applies to lease agreements concluded for a period of more than a year, since agreements concluded for a shorter period are not subject to state registration. The general practice of realtors with such amounts is to draw up a separate document on making a deposit.

To exclude such a situation, these relations are usually taken out in a separate contract, for example, a preliminary one. Such an agreement is not subject to state registration and comes into force from the moment of signing.

Obviously, the advance payment is unprofitable for the buyer, since if the transaction does not take place, the money is simply returned. The buyer lost time, did not purchase the property, and received no interest on the seller's use of his money. Some unscrupulous sellers may specifically take advance payments. The purpose of such an operation may be the interest-free use of other people's funds, for example, several potential buyers.

The deposit agreement is the most reliable way to achieve the execution of the transaction. Even if the transaction fails due to the fault of the other party, the person who transferred the deposit will be able to compensate for their losses. However, for the same reason, the recipients of the deposit do not want to take responsibility. This contradiction is resolved by using a simple advance, which does not carry a security function that is so useful for the payer (buyer).

The modern practice of economic transactions, in particular when buying real estate or large movable property, involves the inclusion in the contract of a condition on a pledge or deposit. Many are sure that they are well versed in these terms and know the intricacies of operating with them, however, situations of fraud and deception of citizens are increasingly emerging. So when is it more profitable to use this or that term and what is not returned - a deposit or?

The 329th article of the Civil Code of Russia lists measures that provide, among which are a pledge and a deposit.

Deposit, in accordance with Art. 380 of the Code in paragraph 1., is the amount of money transferred by the preliminary buyer to the preliminary seller to guarantee the execution of the contract being concluded.

The deposit is aimed at bringing the contract to the end - the party to which the deposit was transferred has an incentive to continue cooperation, otherwise it needs to give the money to the buyer, and for the buyer the deposit is a reason not to disrupt and comply with all the stipulated points of the document.

Deposit functions

The deposit is a more accessible and simple tool for ordinary people, which does not require complex texts of the contract and special conditions. The point is to prove the seriousness of his intentions - after all, he will lose this money if he changes his mind about completing the deal. But this is not the only task of the deposit.

It has 3 functions:

securing a future transaction - after the transfer of the deposit, the seller can be calm and withdraw the object from sale, because the deposit provides a high probability of its purchase by this counterparty
- the contract usually contains a clause stating that it is valid from the moment the deposit is transferred, i.e. the transfer of the deposit is perceived as the conclusion of the main transaction
the deposit is the buyer's first installment - being a small part of the transaction value, the deposit does not increase the buyer's expenses, but is included in them, for example, if the transaction costs 2,000,000 rubles, and the deposit is 200,000, then then the buyer will have to pay an additional 1,800,000 rubles, and not the entire amount of the transaction.

A deposit is a profitable and convenient mechanism for transactions involving the sale of expensive and large goods.

Definition of collateral

Pledge, according to Article 334 of the Code, is property or money that the debtor transfers to the creditor, and the creditor has the right to dispose of the pledge at his own discretion.

The pledge has only a guarantee function - the creditor will not be at a loss in case of termination of the transaction or non-fulfillment of its conditions.

Differences between pledge and deposit

There are a number of differences between the concepts:

. A pledge is a guarantee not only in monetary terms, but also in the form of any tangible and intangible values (for example, property rights). The deposit can only be money.
Deal form. The transfer of the deposit in accordance with Article 320 of the Civil Code of Russia is formalized in writing as part of the main contract or as a separate agreement. The pledge is also necessarily put in writing, and in some cases must be certified by a notary. Such cases include situations listed in the legislation. With the exception of them, the parties independently decide on the certification of the agreement by a notary, which is prescribed in the main contract.
The size. The deposit is a small share of the transaction value, 1/5 or 1/10. The deposit cannot exceed the amount of the contract, because it is included in it, but may be equal to it. Any property up to real estate objects, the value of which exceeds the value of the main contract, can be used as collateral.
Violation of the main contract. In the case of a pledge, the pledgee sells the property he has and disposes of the proceeds as follows - he keeps a part in the amount of the value of the main transaction for himself, and returns the rest to the pledger. In the case of a deposit, other rules apply - it all depends on who violated the deal. If the holder of the deposit, he returns the amount to the buyer in double size. If the offender is the buyer, then the money remains with the seller and becomes his property without the right to demand a return by the seller.

It is not necessary to formalize the transfer of the deposit in the form of a separate agreement; it can be indicated in the letter of intent.

In no case can you transfer a deposit without a written agreement simply - it will be difficult to prove that it was a deposit, the court may regard such a transfer as an advance payment, and the consequences of an advance payment are different from making a deposit.

In the case of a pledge, in practice a full contract is concluded.

A pledge transaction is more serious, since it involves a larger property or amount than when transferring a deposit.

Why do you need to know this?

Anyone ignorant of the intricacies of using the deposit and collateral when concluding a transaction. There are many ways to deprive a person of money, using a deposit agreement or a pledge agreement for this.

Here are some common schemes:

The fraudster rents an apartment for a while - several months. Makes a copy of the certificate of ownership or extract of ownership, makes a fake power of attorney to represent the interests of the owner and sells the apartment under an agreement with the transfer of a deposit. A potential buyer gives money to a scammer, and he disappears. This is a small type of fraud that is much worse, if the fraudster sells the rented apartment, then the buyer will lose a large amount of money.
The fraudster operates from the owner - received a long time ago or for other purposes, or even fake. After receiving the deposit, such a representative disappears and does not answer calls.
Sometimes scammers use the method of a favorable price and tight deadlines. They assure the buyer that the apartment (usually owned by the fraudster) is being sold urgently and at a low price, that several people claim it, and the contract will be drawn up with the one who gives the deposit before the others. After receiving the deposit, an agreement is concluded with unrealistically short terms and conditions. The buyer does not have time to fulfill them and becomes the culprit of the failure of the contract, as a result, according to the law, the deposit remains with the fraudster.
A popular distribution scheme for the population. The debtor is offered to secure the transaction with a pledge of real estate. He mortgages his apartment / house / land and receives a loan that is less than the value of real estate. Then it turns out that the debtor was given to sign not a pledge agreement, but a sale and purchase agreement, and he remains homeless.
The traditional collateral scam is to gain the trust of the homeowner, tell them about your needs after some time, and convince the landlord to provide the home with collateral for a loan. The creditor is a fictitious person. After the transaction, the fulfillment of obligations by the parties is demonstrated for a certain time, and then the debtor has insurmountable obstacles, and he . The lender sues to get his money through the mortgaged property. Enforcement proceedings are initiated, the apartment is sold at auction. As a rule, the organizer of sales is also a front company, the apartment is sold cheaply. As a result, the owner is deprived of housing, and may still be indebted to the creditor.
Often we see advertisements for tempting offers for issuing loans and loans without complicated procedures. In fact, one should be careful with such proposals. The homeowner applies to such a company, receives a loan secured by an apartment / house / land, lenders convince him to conclude not a loan agreement and a pledge agreement, but a sale and purchase agreement, arguing that this practice is widespread and guarantees the return of money to the investors of the company.

For persuasiveness, creditors draw up an agreement for the repurchase of an object with a trusted person of the owner - a relative or friend. With the same argument, creditors convince him to sign for the money for the sold housing and give power of attorney to creditors to register ownership. Then the owner repays the loan, as agreed, but cannot return the property, since he is not its owner. , since all conditions are present.

In order to protect yourself from such schemes and protect loved ones from them, it is recommended to draw up an agreement or contract with the support of a specialist - a lawyer or a notary, and try to make inquiries about the counterparty and other persons involved in the transaction.

What is not returned - a deposit or a deposit?

Depending on the conditions specified in the agreement and the preliminary contract, as well as on who failed to fulfill their obligations and caused the termination of the transaction, both the deposit and the deposit may not be returned.

The deposit is not returned to the buyer if he violated or terminated cooperation under the current contract. For example, citizen Ponomarev entered into a lease agreement for a banquet hall for a wedding celebration on a certain date and made a deposit - 35,000 rubles. After some time, the wedding had to be cancelled. Ponomarev understands that he has no right to demand money back, since the deal was stopped because of him.

If the management of the banquet hall were the reason for terminating the transaction, for example, due to a fire on the specified date, the hall would not be ready, then Ponomarev would have been returned not just the deposit, but its double amount.

The deposit is non-refundable if the pledgor fails to fulfill its obligations under the main contract. For example, Ponomarev bought a car from a friend in installments with an obligation to pay 45,000 rubles a month for 11 months. As a pledge, he handed over to the seller of the car his old car with an estimated value of 190,000 rubles. If Ponomarev does not fulfill his obligations to pay monthly amounts, the mortgagee has the right to sell his old car and distribute the proceeds in his favor in the amount of Ponomarev's debt.

And if Ponomarev regularly paid money all year, the old car will be returned to him, and he will also become the full owner of the new car.

It can be seen from the examples that the pledge is used in cases where the seller wants, and the deposit is used as the first step in the further implementation of the transaction.

Write your question in the form below

Usually, when concluding large transactions, it is desirable to obtain guarantees from both the seller and the buyer. It is required to deposit a certain amount as additional security for contractual obligations. Both the advance and the deposit are a form of advance payment. It should be determined what is their difference and what is more profitable for the seller and what for the buyer.

What is an advance

An advance payment is a form of payment that is made before receiving the goods or fulfilling certain conditions of the contract. It is not considered a guarantee of liability. Usually, a small amount of the contract price is paid as an advance payment when concluding large transactions.

It is desirable that the advance payment amount does not exceed 10% of the total cost of goods or services.

In any case, the advance payment is returned back to its payer in case of refusal to carry out the operation. It doesn't matter who initiated the termination of contractual relations. An advance payment is not a compensation for a broken transaction.

Advance payment is resorted to in situations where the participants have come to an agreement, but the execution of the main contract needs to be postponed for some time. This may be due to the unavailability of all documents, there is no all the required amount. In order for the parties to the transaction not to be nervous, an advance payment is made. The seller stops offering, for example, an apartment to others. The buyer collects documents and the missing amount for the purchase.

What is a deposit

The deposit is a sum of money that one of the parties to the agreement provides to the other as a guarantee for the fulfillment of the obligations assumed (Article 380 of the Civil Code of the Russian Federation). In case of failure of the transaction, the following ways of resolving conflict situations are possible:

If the party that made the advance payment failed to fulfill its obligations, then the money will not be returned to it. They are considered compensation for the losses incurred.
Provided that the party to the contract who received the money and did not provide the required service turned out to be guilty, the deposit is returned in double the amount to the buyer (Article 381 of the Civil Code of the Russian Federation).
The payer will be able to receive the full amount of money back if the agreement is not fulfilled as a result of objective reasons beyond the control of any of the participants in the transaction.

The deposit performs 3 main functions:

A deposit is usually paid in a situation where the buyer is interested in purchasing a particular property. The apartment suits him perfectly: it is located close to the place of work, study, residence of relatives. It is not possible to pick up another option for the same money.

What is the difference between an advance and a deposit

Both the advance and the deposit are payment transactions. Moreover, the advance is not considered a guarantee of the actual performance of the contract. It represents only the part of the amount transferred to the other party to the transaction until the terms of the agreement are fulfilled. This is its payment purpose.

The deposit is a more complex concept. In addition to the payment role, it also carries a guarantee, certifies the consent of the parties to the transaction.

The differences between the terms "deposit" and "advance" should be considered in certain areas.

Table: differences between advance and deposit

Directions of comparison	Prepaid expense	Deposit
Mention in legislation	No	Article 380 of the Civil Code of the Russian Federation
Return due to seller	yes (one time)	yes (double size)
Return due to the fault of the buyer	yes (one time)	at the discretion of the seller (No returns required.)
Return in a force majeure situation	yes (one time)	yes (one time)
Documenting	Documentation is not required. Usually indicated in the text of the main contract.	A special deposit agreement or receipt is drawn up. Mandatory notarization.
Functions performed	payment	payment; warranty; evidence.

With a firm decision to purchase a particular apartment, the buyer is interested in providing a deposit. If the seller refuses to conclude the contract, the buyer will not remain in the invoice, but will receive double compensation.

If the buyer decides to reserve a property for himself, but at the same time continues to search for better housing, then in such a situation, if the preliminary agreement is canceled, the money paid is returned back.

Restrictions on the application of the deposit and advance payment

There are no restrictions on the use of the advance.

For the deposit, the restrictions are as follows. Its design is associated with some features in the alienation of real estate. For example, a contract for the sale of real estate is considered concluded only after its state registration. If it includes a condition on making a deposit, then it is not valid until the document is issued in Rosreestr. The amount of the prepayment received in such a situation will be considered as an advance payment. Therefore, no refund penalties will apply. The same applies to long-term rentals.

Important: to prevent such situations, it is required to conclude a preliminary agreement, which does not need to be registered with Rosreestr. It enters into force at the moment of its signing.

How to correctly draw up documents when buying residential real estate

When transferring funds to the other party to the transaction, it is important to correctly draw up all the papers. Some rules should be considered:

There is no mandatory requirement to draw up a separate document for advance payment. Therefore, if the parties agreed on a deposit, but did not draw up any document, from a legal point of view, the amount of money in question will be considered an advance;
another important point is the mandatory notarization of the deposit agreement;
This issue needs to be considered when determining the prepayment amount. It is necessary that the introduced value, on the one hand, be tangible, on the other hand, limit possible fraud. The standard amount is 5-10% of the size of the transaction being concluded.

Important: the legislation defines a limit for the amount of the deposit with a budgetary organization. In this case, it cannot exceed 20%.

advance agreement

In practice, it is quite rare to conclude a separate advance agreement. Usually, the prepayment condition is included in the main or preliminary contract, which indicates the amount of money and the term for its payment.

When issuing a separate document for an advance, the following items must be entered in it:

The agreement includes data on the participants in the main agreement.
Information about the subject of the transaction is indicated, a detailed description is drawn up. You should enter information about the total cost of the transaction.
The amount of the advance paid is fixed. Usually it is calculated as a percentage of the total transaction price. The remaining amount and the time of its payment are indicated.
The due date for the advance payment must be recorded.
The method of transferring funds is determined. Several options are possible. If you decide to use a non-cash form of payment, then you need to enter the details of the bank through which it will be made. When receiving an advance in cash, it is necessary to issue a receipt for the transfer of money. This should be done in front of witnesses. Banknotes must be counted. It is possible to open a bank cell.
The expected consequences of the failure of the transaction are prescribed. Sanctions are indicated for each of the parties in case of violation of the terms of the contract.

Usually a large amount of money is used as an advance.

Deposit agreement

The deposit document does not have a strictly prescribed form. According to the Civil Code of the Russian Federation, the main requirement put forward to it is the preparation in writing. This document is considered preliminary and should contain certain sections:

The title of the document is required. It should contain the word "deposit". It can be a "Deposit Agreement" or "Deposit Agreement".
The document contains basic information about the buyer and seller. Full name, passport details, date of birth and place of residence for an individual should be indicated. If the participant in the transaction is a legal entity, then the details of the organization are entered into the contract: name, TIN, legal address and the person authorized to conclude the agreement.
All information about the subject of the transaction is indicated. If it is the apartment being purchased, then its full description follows: address, location in the house and on the floor, total and residential area, number of rooms and their footage.
The value of the deposited amount is fixed. Be sure to spell it out.
The deadlines for the fulfillment of obligations by both parties to the transaction are determined. It is better if in the same document all possible consequences are considered if the terms of the main contract are violated. This will avoid serious conflicts.
The place of compilation and the date of issue of the document should be entered.
The document is endorsed by the parties to the transaction.

If witnesses are present during the preparation of the deposit agreement and the transfer of money, this will increase the weight of the document

How to avoid fraud when buying an apartment

Usually, the question of making an advance payment arises when transactions are made, the price of which is quite high. The transfer of a sum of money as an advance or a deposit carries certain risks that are associated with the possibility of fraud in the provision of a product or service.

One of the schemes of fraudsters is to receive a deposit and disrupt the transaction. The contract fixes the terms for the return of funds in case of violation of obligations. Then the seller delays the solution of the issue. The buyer misses the period when the return of the deposit is possible. After its completion, the seller refuses to conclude the main contract. As a result, the buyer loses his money.

To reduce the risk of being cheated, the transfer of an advance or deposit should be documented

It is possible for the seller to receive a deposit from several persons at once. A contract is actually drawn up with one of them, and the property passes to the buyer. Further, the fraudster disappears, and the deceived buyers continue litigation with the new owner of the property. This risk can be significantly reduced by documenting.

But not always a deposit agreement can save you from scammers. When making an advance payment and drawing up the relevant document, the buyer discovers the uncleanliness of the transaction. In such a situation, he is the initiator of its break, and, therefore, does not receive back the amount he contributed.

The advance payment issued for a long period, although later returned, is the provision of an interest-free loan to fraudsters.

There are certain rules to follow to avoid falling for the tricks of scammers:

Always document the transfer of funds.
Pay a small amount as a deposit or advance. When persuading the seller for a larger payment, such a transaction should be abandoned.
Be sure to familiarize yourself with the conditions under which the payment made will be lost. It is better to consult a lawyer on this point.

An unequivocal answer to the question of whether an advance is better or a deposit cannot be obtained. A deposit is an opportunity to receive a guarantee when making a transaction. Advance payment - an advance payment made in advance for a service or product that will be received or performed later. In each situation, you should weigh the pros and cons. If you cannot make a decision on your own, then you need to seek legal advice.

A deposit is one of the ways to ensure the fulfillment of obligations under an upcoming transaction, along with an advance payment, pledge, guarantee and some other tools.

What the procedure for its introduction includes and what its features are, we will analyze in this article.

Definition, main functions

A detailed definition is contained in Art. 380 of the Civil Code of the Russian Federation, it says that this is a certain amount of money contributed by one of the participants in the contractual obligation in favor of the other on account of upcoming payments under this agreement.

A deposit is also a confirmation of the signing of the contract and its entry into force with all the stipulated obligations. Its main function is to serve as a guarantor of the provision of all points of the agreement under which it was received.

When is it used?

The deposit can only be received upon conclusion of an agreement providing for the obligations of both parties, and one of them must pay the other a certain amount of money. The most common example of such agreements is real estate purchase and sale transactions.

This amount is an optional part of the contract signing process if the participants fully trust each other.

However, almost every major transaction between citizens of the Russian Federation is concluded with its introduction, since each of the parties wants to have guarantees that have legal force, and not just verbal promises.

For example, when selling a house, the seller will probably want to enter into this agreement in order to be sure that the buyer intends to purchase his property. The buyer will also require guarantees so that during the preparation of the transaction the seller does not find a more profitable option.

There are several types of transactions that are almost always made with a deposit:

If the buyer does not have the entire amount of money on hand, in this case the deposited funds will be a guarantee for the seller that the second party to the transaction will find the necessary finance within the time specified in the agreement.
An incomplete package of documents for the object being sold by its owner. The deposit will be paid for the period agreed by the parties and necessary for the preparation of all the necessary papers.
Encumbrance existing on the object of the transaction. For example, to secure a bank loan. The deposit will serve as just the right amount to remove the encumbrance. But it is better for the buyer to play it safe and ask the seller for a document confirming the fact that this amount is enough for the procedure for withdrawing real estate from bail. The ideal option would be the simultaneous signing of an agreement on the deposit and removal of the burden, for example, early repayment of the loan. So the buyer will protect himself from unpleasant circumstances when the amount is spent, and the object is still pledged.
Temporary absence of one of the participants in the transaction. The reasons can be different - from an urgent business trip to a banal vacation at a resort. In this case, the deposited funds will serve as a guarantee that the transaction will take place when the departing participant returns.

What is the difference between a deposit and an advance?

In the Civil Code of the Russian Federation there is no exact definition of an advance. But relations on advance payment for goods or services are regulated by law. Thus, a pre-paid partial or full amount of the cost of the object being sold is nothing more than an advance payment. The main difference between an advance payment and a deposit is that the first does not oblige the parties to the transaction to fulfill their obligations under the contract. Either party has the right to withdraw from the transaction, advance will be fully refunded.

The issue of the return of the deposit is solved in a completely different way. The amount is non-refundable if the transaction fails due to the fault of the one who made it. The advance has only one function - payment. The deposit, in addition to payment, performs two more important functions - security and certifying.

You can learn more about these concepts from the following video:

How is it different from a pledge?

The most common example of collateral is mortgage lending. Don't confuse a deposit and a deposit, they are completely different concepts.

In case of non-fulfillment of obligations under the contract by one party, the second party to the transaction is compensated for all stipulated payments under the agreement at the expense of the value of the pledged property. The most common use of collateral when making a loan agreement.

Registration process

The deposit agreement is executed as a receipt, required in writing. It is not necessary to notarize such a document, but it is recommended to conclude an agreement in the presence of two witnesses: they must sign. However, with notarization, the procedure for collecting the amount in case of violation of the terms of the agreement is greatly simplified. A court order will suffice, there is no need for a lengthy litigation procedure.

When compiling this document, it is imperative to indicate that this is precisely a “deposit”, the use of other words - “advance”, “pledge” - is unacceptable, since it will entail the incorrectness of such an agreement and, as a result, its invalidity.

The agreement must specify:

The object for which the deposit is being paid. We need as much information as possible. For example, for an apartment, the exact address, number of rooms, area, condition, and even the presence or absence of furniture are indicated.
Name of the participants in the transaction.
their passport details.
The amount of the deposited amount.
Deadlines for the fulfillment of all obligations under the contract.
Signatures of the parties.
Signatures of witnesses (if any).
Date of preparation.

Consequences of default

A deposit is a very effective way to secure transactions. It encourages both parties to strictly fulfill the obligations stipulated by the contract in full and within the specified time.

If the transaction fails due to the fault of the one who deposits the amount, then the money paid will not be returned to him. For the participant who received the funds, the law is even more strict: in case of default, he becomes obliged to pay twice the amount of money taken.

Such actions are provided for in the Civil Code of the Russian Federation, therefore it is not at all necessary to prescribe these penalties in the agreement.

In the event that the parties decide to refuse to fulfill their obligations mutually, the amount of the deposit is simply returned, the agreement is terminated, no fines and penalties are provided. The decision to return can be made by the court if the failure to fulfill obligations did not depend on the party that violated them, there was a force majeure.

A deposit is a very strong guarantee to ensure compliance with all terms of the contract. Actions related to its deposit and receipt are regulated by law. If the deal does not require such strict security measures, an advance agreement will suffice. In such a document, it is possible to prescribe fines and penalties in a separate paragraph for cases of refusal of a transaction or delay in terms that will suit both parties.