Is a deposit required when holding an open auction? Can an unreasonably high amount of the deposit be a violation of competition in a tender or auction for the lease of state or municipal property? Differences from advance payment and collateral

Gardening

By virtue of paragraph 1 of Art. 380 of the Civil Code of the Russian Federation, a deposit is an amount of money issued by one of the contracting parties against payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution.

According to paragraph 1 of Art. 381 of the Civil Code of the Russian Federation, upon termination of an obligation before the start of its performance by agreement of the parties or due to the impossibility of performance (Article 416), the deposit must be returned.

As follows from Art. 448 of the Civil Code of the Russian Federation, auctions and tenders can be open and closed. Any person can participate in an open auction and open tender. Only persons specially invited for this purpose participate in the closed auction and closed competition.

The terms of the contract concluded based on the results of the auction are determined by the organizer of the auction and must be indicated in the notice of the auction.

The organizer of an open auction has the right to refuse to hold it, and at any time, but no later than three days before the date of its holding, and from holding a tender - no later than thirty days before the competition. In case of refusal in violation of the specified terms, the organizer is obliged to compensate the participants for the actual damage they have suffered.

ATTENTION! The organizer of a closed auction or a closed tender is obliged to compensate the participants invited by him for real damage, regardless of the exact period after the notification was sent the refusal to hold the auction followed.

In accordance with paragraph 5 of Art. 448 of the Civil Code of the Russian Federation, bidders make a deposit in the amount, within the time frame and in the manner specified in the notice of bidding.

The deposit is subject to return in cases where:

the auction did not take place;
the person took part in the auction, but did not win it;
failure of the person to appear to participate in the auction.

When concluding an agreement with the person who won the auction, the amount of the deposit paid by him shall be counted towards the fulfillment of obligations under the concluded agreement.

Unless otherwise provided by law, the person who won the auction and the organizer of the auction sign on the day of the auction or competition trading results protocol, which has the force of an agreement (clause 6 of article 448 of the Civil Code of the Russian Federation).

Attention! The only case of refusal to return the deposit to the applicant:

A person who avoided signing the protocol is obliged to compensate the losses caused by this in the part exceeding the amount of the provided security. That is, the person who won the auction, if he avoids signing the protocol, loses his deposit.

If, in accordance with the law, the conclusion of a contract is possible only by holding an auction, if the organizer of the auction evades signing the protocol, the winner of the auction has the right to apply to the court with a demand to compel the conclusion of an agreement, as well as to compensate for losses caused by evading its conclusion.

If, in accordance with the law, the conclusion of an agreement is possible only by holding an auction, the winner of the auction shall not have the right to assign rights and transfer the debt under the obligations arising from the agreement concluded at the auction. Obligations under such an agreement must be fulfilled by the winner of the auction personally, unless otherwise provided by law.

The terms of the contract concluded based on the results of the auction in the case when its conclusion is allowed only by holding the auction may be changed by the parties, if this change does not affect the terms of the contract that were essential for determining the price at the auction, as well as in other cases established by law ...

See FAS of the Far Eastern District of 08.25.2008 N F03-A51 / 08-1 / 3396 in case N A51-13180 / 200714-471 / 18

Useful template:

(statement of claim)
(statement of claim)

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Very often, auction participants have concerns about the return of the deposit paid at the bankruptcy auction. This issue is clearly spelled out in the Federal Law No. 127 "On Insolvency".

The deposit is returned in FULL within 5 working days if you did not win the auction, if you withdrew your bidder application before the formation of the Protocol for determining the bidders, or wrote an application for the return of the deposit addressed to the organizer of the auction.

When the deposit is not returned to you:

1. You won the bid (in the final protocol posted on the site, your name), but within 5 days from the date of submission to you of the contract of sale (DCT) for the lot, you did not sign it.

Simply put, you have been offered to buy out the lot, but you do not agree. The deposit will not be returned!

2. You won the auction, signed a monetary policy, but did not pay for the property within the terms of the auction. The deposit will not be returned to you.

It should be noted right away that this period, according to the law, is 30 days from the moment you sign the MP. Any changes to this figure are a gross violation of Federal Law No. 127, and such tenders can be appealed in court sometimes until the results are canceled.

3. The most harmless option for non-return of the deposit - The winner of the auction. This is logical and you do not need to expect that if you won the auction, then you will be returned the deposit. Although many for some reason think so!

Your deposit goes towards your payment for the property, you will pay the amount for the won lot EXCEPT the deposit already paid.

And a couple more points:

The deposit is returned within 5 WORKING days from the date of publication of the final protocol on the trading floor;
So that the return of the deposit does not stretch out for a month, indicate in the application DETAILS where to return it;
If you lost the auction and indicated the details in the application, do not be lazy and duplicate the details to the auction organizer by email with a request to return the deposit.

Do not forget that the organizers of the auctions are people too and they may have their own force majeure, therefore, if they did not meet in five days, you should not swear with them and scare them with courts.

A deposit is a form of advance payment used in situations when the conclusion of the main transaction is still impossible for one reason or another. The agreement concluded by the parties obliges subsequently to fulfill the main contract concerning the sale of property or the provision of services.

IMPORTANT

The deposit is always expressed in monetary form, and its transfer is a way of guarantee that protects the participants from non-fulfillment of their obligations by the counter-agent.

What is a deposit?

The legal concept of this type of money transfer is formulated in the Civil Code of the Russian Federation. Article 380 specifies that a deposit is an amount of money transferred by one party to the other as a preliminary contribution from the full amount of payment due by written agreement.

Attention

The contingency payment is a reciprocal way of obligations for the fulfillment of a full contract between the parties.

The transfer of money is always accompanied by the conclusion of a written agreement, which indicates the form (deposit), parties, subject and amount of the transferred amount of money. The notarization of the document is not required, however, the concept of a deposit must be indicated in its title and in the text, otherwise it will be considered that the parties have entered into an advance payment agreement, which entails other obligations.

For your information

Oral agreements or non-compliance with legal requirements in writing are not considered a deposit, and the contribution itself is likely to be recognized as an advance.

An alternative to a written agreement is a receipt for money, which is written from the person who received the payment. The receipt also indicates the parties, the subject of obligations and the amount of the contribution. The receipt must indicate that the financial contribution is a deposit.

Differences from advance payment and collateral

The legal concept of advance payment is not used in Russian legislation, however, in practical terms, advance payment and deposit are close but not identical terms.

An advance payment is also a prepayment before the transfer of property, the provision of services or the performance of work. However, it is not a form of securing obligations and can always be returned or reclaimed back without any consequences for the parties. Making an advance payment does not oblige the parties to complete the transaction.

A pledge is a form of securing obligations under a contract. However, it does not apply to the advance payment and is drawn up in a separate agreement. If the contribution is expressed in monetary terms and cannot exceed the principal amount, then the collateral is usually property, the value of which is equal to or greater than the value of the subject of the contract.

Additional Information

Usually, a pledge agreement is concluded as security for a loan agreement, for example, for a mortgage.

Thus, an advance payment is an advance payment that does not ensure the fulfillment of the contract, and a pledge is a form of securing obligations, which is not a preliminary payment.

Civil Code of the Russian Federation on the return of the deposit

Return is governed by Art. 381 of the Civil Code of the Russian Federation "Consequences of termination and non-fulfillment of an obligation secured by a deposit". According to the article, the refund is carried out as follows:

if the contract is terminated through the fault of the party that made the deposit, then it remains with the counter-agent;
if the party that accepted the payment is the culprit, then it undertakes to return the contribution in double size;
if the agreement is terminated by agreement of the parties or due to "force majeure", the amount is returned in a single amount.

When is the deposit returned?

The deposit can be returned to the person who transferred it in two cases:

the transaction was thwarted through the fault of the person who received the cash tranche;
the breakdown of the deal was committed for reasons beyond the control of both parties.

In the latter case, the concept of force majeure is applied, due to which the parties could not fulfill their obligations. The so-called "force majeure" does not depend on the will of the participants and is not a manifestation of their intentions. Such a circumstance, for example, is the destruction of a dwelling as a result of a natural disaster. If an advance payment has been made for the apartment, then it is transferred back to the buyer in a single amount.

For your information

Also, the money must be returned to the person who made the payment in situations when the opposite party voluntarily refuses its obligations prescribed in the text, or changes the terms of the agreement. For example, by raising the price of an apartment, the seller violates the terms of the contract, which allows the buyer to terminate the preliminary contract. Since in this situation the refusal was made through the fault of the contractor or the seller, he is obliged to return the financial security in double amount.

When is it not returned?

The down payment is not refundable to the buyer / customer in situations when he waives his obligations specified in the text of the agreement. In such circumstances, the buyer / customer is the culprit for the breakdown of the transaction / contract. Since the deposit payment is a form of securing obligations under a written agreement, all transferred money remains with the counter-agent (seller / executor).

Refund of the deposit by receipt

A receipt for receipt of funds is one of the options for issuing an advance payment. The text must indicate that the money is transferred as a deposit for the execution of any agreement. The document must contain the following details:

passport details of both parties;
registration address;
the item for which the money is transferred (car, real estate, etc.);
the exact cost of the item;
the exact size of the transferred funds (in numerical and letter terms);
terms of conclusion and execution of intentions;
signatures of counter-agents.

Attention

Subject to the legal form of drawing up and signing a receipt, it is recognized as a full contract and entails full legal responsibility of the parties in court. It is not necessary to indicate the penalties of the parties in the text, since the concept of "deposit" itself already provides for such for all participants.

Under contract

When the parties sign the deposit agreement, it has the form of a preliminary agreement, which guarantees the conclusion of the main agreement (alienation of real estate, purchase and sale of a vehicle, etc.). To fully protect themselves, the parties must correctly draw up the text and indicate:

name of the document (deposit agreement);
exact passport details of counter-agents;
subject of the contract;
legal action with the subject (sale and purchase, rent, performance of services, etc.);
responsibility of the parties;
conditions for the return of the deposit;
signatures with decryption.

Additional Information

Since the written contract is an extended form, the parties can indicate special conditions for the return of the deposit, or indicate that the money must be returned on the grounds provided for by law. The conclusion of the agreement does not prevent the parties from specifying special conditions: fines for non-performance or forfeits.

Actions in case of refusal to return the deposit

If the opposite party refuses to return the deposit, the participant who contributed the funds has the right to demand their return exclusively in court. Contacting the police or other authorities will most likely not bring the desired result. Cases of financial disputes between individuals are considered by courts of general jurisdiction. You can file a claim only after the date specified in the agreement or receipt.

For your information

After filing a lawsuit, the court will consider the case and issue a ruling. If the judge finds that the breakdown of the agreement was due to the fault of the person who received the advance payment or due to force majeure obstacles, then most likely, a decision will be made to return the money. If the court finds that the transaction was thwarted through the fault of the participant who transferred the funds, then the deposit will remain with the opposite party.

The deposit is returned in double size

The refund of the doubled amount is provided in cases where the party that received the contribution as financial security is the culprit for the failure of the transaction. In such a situation, the participant who made the down payment has the right to demand the return of the entire amount of the down payment in double amount. This measure is applied due to the fact that when signing an agreement, both parties must risk the loss of funds equally.

Deposit when buying an apartment: is it returned or not?

The deposit transferred as a prepayment in the course of a real estate alienation transaction does not differ from the contributions secured by other contracts. If the parties conclude a deposit agreement or the money is transferred by receipt indicating the form of payment, then in case of the buyer's refusal, the money remains with the seller.

The seller's refusal to fulfill the contract obliges him to return the money in double the amount. If the transaction fails due to force majeure (for example, the seller has died), then only the transferred amount is returned.

Is the deposit returned to the winner and loser of the auction?

The conduct of auctions and competitive bidding is often accompanied by a preliminary deposit of funds as security of the bidder's intentions. According to Art. 448 of the Civil Code of the Russian Federation, the deposit is returned to the participant:

in case of participation, but defeat in the auction;
in case of cancellation of the auction.

For your information

Payment refund period - 20 calendar days from the date of the auction or cancellation.

The money contributed by the winner will be counted as a down payment on the subject of the auction. If the winner refuses to pay the full cost, the deposit remains with the organizers.

Nuances

The parties may refuse to fulfill the terms of the deposit agreement if the counter-agent has changed the criteria for the purchase and sale. If the terms of the transaction, the circumstances are violated (the price has been increased), the subject of the agreement has been changed (for example, the car being sold has an accident), then either party may demand termination of the agreement and payment of its obligations by the counter-agent.

Attention

In order to guarantee a refund, it is necessary to prove the guilt of the opposite party in disrupting the transaction. For example, if the seller increased the value of the property or did not show up to sign the documents, then it is advisable to take care of the evidence of the seller's guilt - take a certificate from the registration department about not concluding a transaction, attract witnesses, etc.

As a result of studying the documents submitted by the Prosecutor's Office of the Cherek District of the KBR, it was revealed that in the notices of the auctions for the sale of municipal property of the Local Administration of the village of Babugent, the Cherek Municipal District of the KBR, published in the regional newspaper "", in violation of Article 18 of the Federal Law of 21.12.2001. No. 178-FZ "On the privatization of state or municipal property" was determined by a deposit of 20% of the initial value of the property, while the law established a deposit of 10%.

Competition protection

As a result of studying the documents submitted by the prosecutor's office of the Cherek region of the KBR, it was revealed that in the notices of the auctions for the sale of municipal property of the Local Administration of the village of Babugent, Cherek Municipal District of the KBR, published in the regional newspaper " Cherek news", In violation of Article 18 of the Federal Law of 21.12.2001. No. 178-FZ "On the privatization of state or municipal property" was determined by a deposit of 20% of the initial value of the property, while the law established a deposit of 10%.

Publication of the s.p. administration Babugent of the Cherek region of the KBR, connected with the auction for the sale of municipal property, contained signs of violation of Article 15 of the Federal Law of July 26, 2006 No. 135-FZ " Competition protection”, As the illegal requirement could restrict competition and reduce the number of potential bidders.

A case was initiated against the local administration of the village of Babubent in the Cherek Municipal District of the KBR on grounds of violation of the antimonopoly legislation.

On March 15, after reviewing the case materials, the FAS Russia Control Commission for the KBR made a decision to recognize in the actions of the local administration of the village of Babugent, Cherek Municipal District of the KBR violation of Part 1 of Article 15 of the Federal Law of 26.07.2006, No. 135-FZ " Competition protection», Expressed in the establishment of the amount of the deposit, which is not provided for by the legislation, for participation in the auction for the sale of municipal property.

Question: No. 1403 dated: 2015-01-08.

By virtue of clause 22 of the Order of the FAS Russia No. 67 dated February 10, 2010, the organizer of a tender or auction may establish a requirement for a deposit. In this case, the amount of the deposit is determined by the organizer of the tender or auction. If the organizer of the tender or auction has established a requirement for a deposit, such a requirement shall equally apply to all participants in the tender or auction and shall be indicated in the notice of the tender or auction.

According to the explanations of the FAS Russia on the application of Article 17.1 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter - the Law on Protection of Competition) and the Order of the FAS Russia No. 67 of February 10, 2010, the rules for holding tenders are not regulated the procedure for determining the amount of the deposit, therefore, when holding a tender, an auction, the amount of the deposit and the need for its payment are determined by the organizer of the auction.

However, there is judicial practice, according to which, when holding an auction, the amount of the deposit must correspond to the objectivesantitrust laws.

In particular, when conducting a tender, actions are prohibited that lead or may lead to the prevention, restriction or elimination of competition.

The Federal Arbitration Court of the Far Eastern District in its Resolution of May 20, 2013 N F03-829 / 2013 indicated that the establishment of the amount of the deposit, several times higher than the initial price of the auction, is in conflict with the goals of antimonopoly regulation, since it is actually aimed at restricting access to participation in auction.

Thus, the determination of the deposit is fully within the competence of the organizer of the auction, at the same time, the size should not be unreasonably high, including several times higher than the initial price of the auction.

Attention! The information provided in the article is current at the time of its publication.