04/08/2022 11:50

How to determine the amount of compensation for breach of deposit contract in Vietnam?

How to determine the amount of compensation for breach of deposit contract in Vietnam?

It is often perceived that determining the amount of compensation when there is a breach of the deposit contract is an easy thing, but in reality, it is not so easy.

Clause 2, Article 328 of the 2015 Civil Code provides as follows:

2. Upon a contract being entered into or performed, any deposited property shall be returned to the depositor, or deducted from the amount of an obligation to pay money. If the depositor refuses to enter into or perform the contract, the deposited property shall belong to the depositary. If the depositary refuses to enter into or perform the contract, it must return the deposited property and pay an amount equivalent to the value of the deposited property to the depositor, unless otherwise agreed

Here there are two situations:

- The depositor (buyer) violates: that is, the depositor does not buy, the depositor will lose the deposit

- The party receiving the deposit (the seller) violates: this is what we have to discuss, the violation is understood as not selling or selling to another person. In this case, there will be minor cases as follows: 

+ Agree on a clear fine: the contract will state a penalty of 3 times the amount of the deposit and return the deposit. For example, if the deposit is 30 million, the amount to be returned is 120 million (30 million deposit + 90 million deposit penalty)

+ The agreement does not stipulate the amount of the deposit penalty: in practice, the judgments show that there is no fixed answer. There is a case where the plaintiff requests a fine of a deposit and returns the deposit ie a deposit of 30 million, and the defendant must return 60 million (30 million deposit and 30 million deposit).

+ Agreement to fine n times the deposit: this is also a thing that does not have an exact answer.

I will give two examples of 2 judgments below:

The first judgment: Judgment 20/2018/DS-PT dated 24/01/2018 on the deposit contract dispute

Second judgment: Judgment 246/2017/DS-ST dated December 28, 2017 on the deposit contract dispute

Both judgments agree to pay 3 times the deposit, but one judgment only pays 3 times the deposit while the other is to pay 3 times the deposit and return the money. pile. With this difference, it will affect the claim of the plaintiff's deposit, so the wrong determination of the amount to be compensated may cause the plaintiff to incur a large amount of additional court fees when the big money dispute.

Therefore, when making a deposit for purchase and sale contracts, it is necessary to clearly agree on compensation when the parties violate, especially the seller, must clearly specify if the seller violates, How many times the deposit penalty must be paid along with the return of the deposit, and should specify how much this is.

Duc Phong

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