Down payment concept
The deposit is called the signal or monetary amount that is delivered in any contract, and especially in the sale contract, either in order to commit the contracting parties to its conclusion, for fear of losing them, or of returning them doubled. has received them, or in order to have a sign or proof of the perfection of the contract so as not to leave room for regret by the parties.
This is the commonly accepted concept of earnest money, however, earnest money constitutes a legal figure characterized primarily by its enormous breadth, so much so that it is truly difficult to give a definition in which all possible types of it fit, expanding the concept to a amount of money or things, generally fungible, that both contracting parties can deliver to each other, or only to each other, in a contract or pre-contract (usually of sale, although it can also be of another type, for example, exchange or lease). The intervention of the deposit or signal is an accidental element, and the function that these deposits or signal fulfill will be the one that the contracting parties have wanted to give them in each case.
Depending on the purpose that the parties give to that delivery, the following types of earnest money can be distinguished:
• The so-called confirmatory deposits, which represent a simple proof or signal of the execution of the contract, without granting the parties the power to resolve it. In this case, part of the doctrine considers that it is not a deposit but a signal or part of the price, which is an amount that the buyer delivers on account of the price at the time of perfection of the sales contract. If an initial payment is involved in the sale and it is not stated exactly in what concept it has been made, it should be understood that it was not as a deposit, but as a delivery of the price on account. Advance partial payments are nothing more than the beginning of the fulfillment of the buyer’s provision.
• The penitential or withdrawal deposit, which is a lawful means to withdraw from the contract unilaterally through the loss of the sum delivered or its duplicate return, have the nature of an optional obligation: they must comply, but if they do not want to, they lose the deposit (art. 1,454 CC).
• Penalty deposits, which represent a guarantee of compliance with the contract through the loss of the sum or its duplicate return in the event of non-compliance, have the nature of a penal clause. The parties can demand one another the fulfillment of the obligations and only in case of default, if it is the buyer who does not comply, he loses them, and if it is the seller, he returns them duplicates; but neither one nor the other are authorized to withdraw from the contract.
————————————————– ———–
Accuracies
It will be the will of the parties that determines whether there is a signal or part of the price, a penitential deposit or a criminal deposit, but if said will is not stated:
˗ If it has not been stated or stated that they are a deposit, it is estimated, if the contrary is not stated, that it is a signal or part of the price.
˗ If it is established that they are deposits but not of what type, according to article 1,454 of the Civil Code, they will be penitential deposits or withdrawal
˗ Finally, only if it is expressly stated, it will be understood that the deposit is penal
Facebook Comments
Disqus