As a self-created commercial term, "sincerity money" is generally strong in the seller's market because of the tight relationship between supply and demand in the sale of commercial housing. Therefore, customers are identified and delineated by charging fees before obtaining the pre-sale certificate. This approach often does not guarantee that all customers who have paid sincere money will buy a house, but only provides a potential opportunity related to buying a house. Therefore, the so-called deposit does not have the nature of contract validity and legal protection. "Sincere money" is not a penalty, deposit or deposit in the legal sense.

Collect sincere money, or set the account deposit number in disguise. At this time, the relationship between customers and developers is essentially a "lucky contract" rather than a fixed contractual relationship. What consumers pay is not a specific kind or service, but an opportunity and possibility to buy a house. Without specific subject matter as a guarantee, the price is uncertain.

The so-called "lucky", that is, "lucky", originally meant to take a chance. A lucky contract refers to a contract in which one party's performance depends on the occurrence of accidental events. The effect of this contract is that it is uncertain when it is signed.

situation

"Sincere money" is not "down payment"

Real estate development enterprises charge "house purchase deposit" before pre-sale, which is linked to lottery and subscription. Such funds do not have the nature of "down payment". The deposit has the effect of guarantee, and both parties will sign specific sales contracts in the future. When paying the deposit, both parties have made clear the subject matter and price.

It is a "rule" that buyers have to pay tens of thousands of yuan in "sincerity money" to buy a house. From June, 5438 to February, 2007, Shen Changzheng of Shenyang questioned this "regulation" and sued the court, demanding the developer to return the "unjust enrichment" caused by the "sincerity money". On February 4th, 2007, 65438, the first case of "house purchase deposit" in China was pronounced in the first instance.

On August 29th, 2007, Shen Changzheng filed an application with the developer, asking the developer to return the "down payment". The developer said it would take 15 days to return it. Dissatisfied with the developer's delay, Shen Changzheng took the real estate development company to court and demanded that the developer return the interest generated by 30,000 yuan 160 yuan. Shen Changzheng advocates that the loan should be repaid at the loan interest rate of the People's Bank of China for the same period, while the developer thinks that even if the interest is repaid, it can only be calculated at the deposit interest rate.

After trial, the court held that the amount should be calculated from the date when the defendant agreed to refund (August 29), not from the date of payment (August 2 1); The interest rate is calculated according to the loan interest rate of the bank for the same period, and the defendant is sentenced to pay Shen Changzheng the interest of "house purchase deposit" of 66.35 yuan in one lump sum. This case is legally "can the deposit for buying a house be refunded?" This question has been answered.

Departmental characteristics

On June 5438+065438+ 10, 2009, Qin Bing and Xu Bin, well-known real estate lawyers, said that the act of collecting a large amount of earnest money was suspected of illegal fund-raising, which had great potential risks, and it was urgent for the financial supervision department to introduce corresponding policies and management measures to define and restrict it. Therefore, whether as an intermediary or as an agent of one of the buyers and sellers, there is no question of sincerity. Property buyers must read the specific terms of the contract before signing the contract, especially the handling method of sincere money.

It is understood that the act of collecting deposits is illegal fund-raising abroad. However, due to the vacuum of legal supervision in China, it has become a common behavior in the industry, and even been advertised by real estate developers as "a fair and orderly way to buy a house." Lawyers believe that this behavior makes consumers in a very weak position, their rights and interests can not be guaranteed at all, and it also brings great risks to the order of the real estate market and the financial market. Therefore, they called on the relevant construction authorities, the central bank and the China Banking Regulatory Commission.