Preliminary agreement and deposit agreement. Drawing up a preliminary purchase agreement with a deposit

When concluding a preliminary purchase and sale agreement, the buyer often transfers a sum of money to the seller as a guarantee that the parties intend to conclude in the future in established contract term of the main contract. However, in the preliminary agreement itself this amount can be called differently - advance or deposit. How this amount of money is defined in the preliminary agreement depends on legal consequences for the parties if such a preliminary agreement is violated and the conclusion of the main agreement does not take place.

We will look at what an advance and a deposit are and how the parties should act correctly if there are conditions regarding them in the preliminary purchase and sale agreement for residential premises in this article.

The concept of an advance is not enshrined in law anywhere, this term is used, but its exact definition - what an advance is - is missing in the law. However, based on the meaning legal norms, in which this term is used, we can draw the following conclusion:

Advance is a partial advance payment under the contract, transferred by the buyer to the seller for the upcoming payment of the price of the residential premises. If the purchase and sale of housing transaction and the signing of the main contract do not take place, the advance amount is subject to return. If the transaction and the signing of the main contract have taken place, then the advance is counted as part of the payment when final settlement. Thus, an advance is only an advance payment. This term should be considered only in this sense.

Unlike an advance, the term “deposit” is defined in the law (Article 380 Civil Code RF):

A deposit is a sum of money that is given to one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution. Based on this, we can conclude that a deposit is not only an advance payment, but also a way to ensure the fulfillment of an obligation.

The law establishes the requirements for the form of the deposit agreement, as well as the consequences in relation to the deposit if the parties fail to fulfill their obligations:

The agreement on the deposit, regardless of the amount of the deposit, must be made in writing;

In case of failure to comply with the written form, if there is any doubt whether the amount paid as a deposit is towards payments due from the party under the agreement, this amount is considered to be paid as an advance, unless otherwise proven. This means that in the event of a dispute, the court will assume that such amount is an advance and not a deposit, unless proven otherwise.

Thus, it is very important to correctly reflect the true intentions of the parties in the preliminary agreement, since the consequences of violating such a preliminary agreement are different depending on how the amount of money transferred by the buyer to the seller is called in the text of the agreement - advance or deposit.

So, if the preliminary agreement refers to an advance, then if the contract is not concluded, the seller is obliged to return the advance amount to the buyer. However, this does not deprive the seller of filing a lawsuit to compel the conclusion of a contract for the sale and purchase of residential premises, while the advance amount is not returned, but is counted towards payment of the price of the residential premises under the contract.

What if the preliminary agreement states that a sum of money is being transferred as a deposit?

In this case, it matters whose fault the main agreement was not concluded.

If this happened by agreement of the parties or due to impossibility of performance, then the deposit amount must be returned to the failed buyer. Under the impossibility of execution according to Art. 416 of the Civil Code of the Russian Federation, it should be understood that there are circumstances for which neither party is responsible: for example, destruction of property.

If a violation of the preliminary agreement occurred through the fault of the buyer (the party that gave the deposit), then the deposit remains with the other party (the seller).

If the party that received the deposit (the seller) is responsible for the failure to fulfill the contract, then it is obliged to pay the other party (the buyer) double the amount of the deposit.

Moreover, the party responsible for failure to fulfill the contract is obliged to compensate the other party for losses, including the amount of the deposit, unless otherwise provided in the contract.

Thus, the parties who have signed a preliminary agreement with the inclusion of a deposit clause should not neglect the deadline for its execution established by such an agreement, since this may entail both coercion for its execution and compensation in connection with these losses, as well as adverse consequences regarding the amount of the deposit.

The main violations of preliminary agreements are violations of the deadlines established for concluding the main agreement. If the period is coming to an end, and the parties have not expressed their intentions to conclude the main agreement, or if one of the parties is evasive, then the bona fide party should take care of how not to lose the deposited/received amount of the deposit. In order to subsequently prove that the other party is avoiding concluding the main agreement, it is necessary to send a proposal to conclude such an agreement indicating the date, time and address at which it is necessary to appear to conclude the main contract for the sale and purchase of residential premises. This can be done in person against signature, or by letter with a description of the attachment and notification of delivery, or through the services of a notary.

If, nevertheless, the signing of the main agreement did not take place, then the parties must take into account the position of the courts when considering the legality of including the terms of the deposit in the preliminary agreement.

The legislation of the Russian Federation does not contain a prohibition regarding the inclusion by the parties in the preliminary agreement of a condition on a penalty for failure to conclude and (or) evasion from concluding the main agreement, which means that the parties have the right to fix these conditions in the preliminary agreement.

However, the courts, regarding the legality of including such conditions in the preliminary agreement, adhere to different approaches, there is no uniformity in decision making. In particular, two opposing approaches of the courts can be distinguished.

The first approach is that persons who have entered into a preliminary agreement have the only obligation to conclude the main agreement in the future, and the right to demand that the other party conclude the main agreement. Creation of obligations property nature such an agreement is not directly provided for by law. In addition, Art. 429 of the Civil Code of the Russian Federation provides special methods protection of the party to the preliminary agreement when the counterparty evades the conclusion of the main agreement - by filing a claim in court to compel the conclusion of the main agreement. Consequently, a penalty for refusal to conclude the main contract as a way to ensure the obligation to conclude the main contract and measure property liability for non-compliance or improper execution This obligation is not provided for by current civil legislation.

The second approach is the admissibility of establishing a penalty clause in the preliminary contract as a measure to ensure the obligation to conclude the main contract. Penalty is a measure civil liability and the method of ensuring the fulfillment of obligations, and termination of the preliminary agreement cannot be a basis for refusal to pay the penalty provided for by the preliminary agreement itself. Thus, the condition for payment of a penalty in the form of a deposit for failure to fulfill the obligation to conclude the main contract does not contradict civil law and can be included in the preliminary contract.

The purchase of real estate is often accompanied by the conclusion of a preliminary agreement between the parties and the transfer of a deposit as a guarantee if the buyer does not have sufficient funds to pay the full cost of the purchased property. determines and regulates the basic conditions for concluding a preliminary agreement.

Features of drawing up a contract

The legislation provides certain conditions concluding such types of agreements, non-compliance with which may lead to the recognition of the transaction as invalid, namely:

• The form of the agreement is determined by the basic form provided by law for real estate purchase and sale agreements. a mandatory written form has been established for these types of contracts. Failure to comply with the form of the contract entails consequences, namely, recognition of it as void.
• The subject of the contract must give a clear idea of ​​itself, therefore the contract specifies not only legal address of the property being purchased, but also the floor on which it is located, year of construction, area and other characteristics.
• The conditions under which the contract is concluded and the terms of the future agreement, on the basis of which the apartment will be transferred into ownership to the buyer - full price purchased real estate.
• The term of the agreement, which implies the period within which the parties must conclude the main agreement for the purchase and sale of the apartment. If the period is not determined by the parties, then according to agreement, a period of no more than 1 year is established. If the buyer fails to fulfill his obligations, the seller has every right go to court with a demand to compel the conclusion of an agreement for the sale and purchase of an apartment in forcibly - .

Deposit

3.2. If the Main Agreement is not concluded due to the fault of the Buyer, the deposit will not be returned by the Seller. The Buyer's fault means the failure of the Buyer or his representative to appear with a notarized power of attorney or a power of attorney certified by persons in accordance with, on the date specified in, at the place specified in clause 1.3.5. this preliminary agreement.

3.3. If the Main Agreement is not concluded due to the fault of the Seller, he will have to return the deposit to the Buyer in double size, within 3 (three) banking days from the expiration date specified in . The Seller's fault is determined similarly to the Buyer's fault, as specified in 3.2. this preliminary agreement.

3.4. Return by the Seller to the Buyer of the deposit or failure by the Seller to return the deposit to the Buyer on the grounds provided for terminates the obligations of the Parties to conclude the Main Agreement.

3.5. The amount of the deposit paid by the Buyer in accordance with the requirements is subject to return by the Seller to the Buyer if, before the deadline for concluding the Main Agreement, the Buyer identifies circumstances as a result of which the transaction between the Seller and the Buyer can be contested and the sold Apartment is subject to confiscation from the Buyer. The Seller is obliged to return the deposit amount to the Buyer within 3 (three) banking days from the date the Buyer submits to the Seller a demand for the return of the deposit amount.

4. Final provisions

4.1. This preliminary agreement comes into force from the moment it is signed by the Parties and is valid until full execution parties to their obligations.

4.2. This preliminary agreement may be terminated in the cases provided for current legislation RF.

4.3. The costs of concluding the Main Agreement are borne by:

4.3.1. State duty for registration of transfer of ownership under a contract purchase and sale Apartments - Buyer.

4.3.2. Payment for renting a safe deposit box - Buyer.

4.3.3. Payment for verification/recalculation Money- Salesman.

4.4. All disputes and disagreements between the Parties hereunder preliminary agreement don't assume claim procedure and are subject to consideration in court at the location of the Apartment.

4.5. This preliminary agreement is drawn up in Russian in two copies, each with the same legal force, one copy for each of the parties.

Signatures of the parties:

SALESMAN

_____________________________________________________________________________

FULL NAME. signature

BUYER

____________________________________________________________________________

FULL NAME. signature

Receipt

City ________________, _____________________________________

I, _________________________, _________________year of birth, passport______________, issued by "___"_____________________________________, department code_____________, address: __________________________________, received___ from_______________________ _________________year of birth, passport______________, issued by "___"_____________________________________, department code_____________, address: __________________________________, deposit by preliminary agreement for the purchase and sale of an apartment dated “___”___________. in the amount of ____________(__________________) rubles.

I transferred the amount of money

Full name Signature

I received the amount of money

I have no complaints.

Everyone has been a seller or buyer of an apartment or private home at least once in their life! And everywhere in practice, a contract for the purchase and sale of residential premises is accompanied (or rather, it would be more accurate to say, anticipated) by the preparation of a deposit. At the same time, in modern civil circulation of real estate, regardless of its type, so-called pre-contractual agreements are becoming increasingly common, which the parties enter into at the negotiation stage before signing the main “final” contract (preliminary contracts, sales notes, letters of intent, memorandums of intent and understanding, framework agreements etc.).

Of these, from the position Russian legislation highest value has a preliminary agreement, because according to domestic law only he can bind the parties with obligations to conclude any contract in the future, while other pre-contractual agreements do not give rise to such obligations.

It is not without reason that the popularity of a preliminary agreement is growing in the execution of transactions with residential premises. However, despite the presence in the Civil Code of the Russian Federation special norms, dedicated to the preliminary agreement (Article 429), practice shows that the parties, entering into such agreements, often do not have an adequate understanding of the essence of the obligations arising from them. In this regard, when applying the design of a preliminary agreement, many very pressing theoretical and practical questions arise.

In particular, the question of the admissibility of using a deposit to secure obligations under a preliminary agreement is very acute. This is especially true for relations related to the turnover of residential premises, since a deposit is traditionally one of the most common ways to ensure the fulfillment of monetary obligations when making transactions with housing. Persons wishing to complete a contract for the sale of residential premises often enter into a preliminary agreement with each other, in which they undertake to complete the contract of sale in the future. This agreement is concluded with the aim of legally securing the intentions of the parties and regulating their relationships during the period of preparation for the conclusion of the main agreement. At the same time, the preliminary agreement often stipulates that when signing it, the future buyer transfers to the future seller a certain amount of money, which is called a deposit and, after the conclusion of the contract for the sale of residential premises, is counted against the payments due on it. When unjustified refusal from the conclusion of the main contract, the buyer loses the amount of the deposit paid, and the seller undertakes to return it in double amount.

The above situation assumes that:

a) the deposit secures the obligation of the parties to enter into a sales agreement in the future, i.e. obligation arising from the preliminary agreement;

b) the amount of the deposit paid to ensure the execution of the preliminary agreement, if normal development relations performs the payment function under a purchase and sale agreement that has not yet been concluded.

According to paragraph 1 of Art. 380 of the Civil Code “a deposit is recognized as a sum of money given by one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution.” The agreement on the deposit, regardless of the amount of the deposit, must be made in writing. From this definition it follows that a deposit is a sum of money that simultaneously performs three functions: payment, certification, and security. The deposit confirms the conclusion of the secured contract, ensures the fulfillment of the obligations arising from it and, in the normal development of relations, is counted towards the payment due under the secured contract. The deposit can only be used to secure performance contractual obligations. Within non-contractual obligations it is not applicable. In addition, the payment function of the deposit implies that it can be used to secure only those contractual obligations that are monetary. The loss of at least one of the above qualities by a deposit deprives it of the property of a deposit.

In case of doubt as to whether the amount paid towards payments due from a party under the contract is an advance, in particular due to failure to comply with the rule on compliance with the written form, this amount is considered to be paid as an advance, unless proven otherwise.

But, as noted above, the contract for the sale and purchase of a residential building, apartment, or residential premises is subject to state registration and only after state registration is considered concluded and entered into force. State registration is of decisive and constitutive importance for a housing purchase and sale agreement, because without such state registration, the agreement does not acquire legal force.

As a result, we get that the parties, when concluding a contract for the purchase and sale of housing and before it comes into force (state registration), draw up a deposit as security for an already valid contract and an obligation that has arisen!

This is a direct contradiction to the law, which, while establishing the definition of the deposit, clearly indicated its accessory nature and mandatory presence a real contractual obligation, to secure which the deposit is issued.

Those. a deposit cannot be a priori (in principle) issued as security for a residential purchase and sale agreement that has not yet undergone state registration.

Interesting story legislative consolidation pre-contractual relations. If in Russia of the 19th century no one refused to enter into a future obligation, incl. the court could not oblige (force) to conclude the main agreement, then in Soviet Russia everything was exactly the opposite: in the event of one of the parties evading the conclusion of an agreement provided for by the preliminary agreement, the court, at the claim of the other party, could not only recover from the wrong party the losses caused by the evasion, but also recognize relevant agreement completed on the terms provided for in the preliminary agreement.

Modern current civil legislation in this matter has, in my opinion, taken the golden mean.

Basics civil legislation 1991 and after them the Civil Code of the Russian Federation (Article 429 and paragraph 4 of Article 445) determined the procedure for conclusion, mandatory requirements to the form and content of the preliminary agreement, as well as the consequences of its violation, including the possibility of filing a claim to be forced to conclude an agreement. The preliminary agreement must contain conditions allowing to establish the subject matter, as well as other essential conditions main contract.

In cases where the party that has entered into a preliminary agreement avoids concluding the main contract, the other party has the right to go to court with a demand to compel the conclusion of the contract, and the party that unreasonably avoids concluding the contract must compensate the other party for the losses caused by this.

Thus, the purpose of the preliminary agreement was initially always to establish obligations of a non-property (organizational) nature - the obligation of the parties to conclude an agreement in the future. The scope of the preliminary agreement is preparation for specific agreement, as a rule, of a property nature. And from this point of view, any departure beyond these limits should be regarded as an unjustified expansion of the rules on the preliminary agreement.

At the same time, oblige to conclude such an agreement as a contract of purchase and sale of housing - to transfer the apartment to the buyer for determined by agreement amount - the court may simply not be able to, since the apartment, for example, may have simply been sold by this time. Therefore, the consequence of failure to fulfill the obligation to conclude a real main agreement, which is a real estate purchase and sale agreement, can only be the imposition on the faulty party of the preliminary agreement of the obligation to compensate the other party for losses and (or) the application to it of penalties provided for in the preliminary agreement.

So, the preliminary agreement is of an organizational nature and should not give rise to property, much less monetary, obligations. Therefore, within of this agreement the payment function of the deposit cannot be implemented. An indication that the amount transferred by the future buyer to the future seller when making a preliminary agreement is counted towards payments under the main agreement does not change the situation, because the main agreement has not yet been concluded. But, even if we abstract from the last circumstance, it should be recognized that the main and preliminary agreements are, although interrelated, but nevertheless independent agreements. From the moment the main contract is concluded, the obligation arising from the preliminary contract is terminated by execution (Article 408 of the Civil Code of the Russian Federation). Thus, the main and preliminary agreements exist in a different time range. Implement the functions of the deposit within two completely different legal nature and temporary existence of contracts is impossible. This option, as well as the option when a deposit secures an obligation that has not yet arisen, contradicts the additional nature of the legal relationship based on an agreement on a deposit. The latter arises and ends simultaneously with the main one and always follows its fate during succession. It cannot "jump" from one primary obligation to another or simultaneously "serve" several primary obligations.

Already from the above reasoning, it follows that in relations regarding the alienation of housing, the classical construction of a deposit is not applicable.

The preliminary agreement for the purchase of a home must be made, at a minimum, in simple written form. Oral form is unacceptable here. In the case where, under such an agreement, one party transfers part of the amount due to the other party, then it is transferred not as proof of the conclusion of the agreement (there is nothing to prove), but in fulfillment of the agreement... At the same time, if the agreement was not formalized as required by law written form, but the deposit has been paid (it has been proven that it was the deposit that was transferred), then the payment of the deposit serves as evidence of the very fact of concluding the contract. When securing contracts subject to notarization, the identification function of the deposit also remains unclaimed.

As for contracts subject to state registration, which includes the contract for the purchase of housing, a deposit is even less suitable for securing them. For them, state registration is crucial: until it is completed, they are considered unconcluded. Since no obligation arises before such registration, there is no need to talk about a deposit (it is impossible to prove the existence of something that does not exist). The agreement on the deposit turns out to be void due to the absence of a primary obligation. The funds issued as a deposit must be returned to the buyer. In this case, the reasons for non-fulfillment of the main contract do not matter, because unconcluded agreement does not give rise to obligations of the parties to fulfill it.

Thus, the amount transferred by one of the parties to the other party when making a preliminary agreement to ensure the fulfillment of obligations arising from it or future obligations that should arise on the basis of the main agreement provided for by the preliminary agreement cannot be considered as a deposit in the sense of Art. 380 Civil Code of the Russian Federation. For this reason, it should not be called an earnest money deposit at all, in order to avoid obvious legal prejudice.

What is the way out of the situation?

In my opinion, the most optimal solution would be to legislatively provide participants in legal relations regarding the alienation of real estate with the freedom to choose the use of all provided by law contractual structures: preliminary agreement, deposit, etc. This would become possible if state registration of transactions was abandoned - It would be quite enough for justice institutions to register only the rights to real estate and their encumbrances. However, this is a theory.

Due to the fact that judicial practice is finally beginning to follow the path of recognizing a deposit agreement as a maximum agreement to pay an advance towards a future transaction for the alienation of property, the vast majority is moving along the path of establishing financial sanctions in the preliminary agreement in an amount equal to the amount of this advance . The meaning of such actions is to ensure given by the parties obligation to enter into a contract in the future sums of money in the form of a penalty (fine) for refusal to conclude a future contract, since from the point of view negative consequences for an unscrupulous party and, accordingly, receiving compensation in the form of a penalty for a bona fide party, such an agreement is more attractive for the parties

To be fair, it must be said that in practice there are other options for securing real estate transactions, alternative to the preliminary agreement.

Some practitioners (realtors, lawyers) offer the following interesting way out of this situation:

To secure an obligation under a signed but not yet completed state registration, the contract for the purchase and sale of residential premises is proposed to create a certain fund consisting of monetary contributions from each of the parties to the contract, or one party by agreement, which would be deposited with an independent third party (realtor, notary) and would be subject to transfer in the event of a violation of contractual obligations in good faith side. However, this raises the question of the legitimacy of storing funds as a type entrepreneurial activity third party. However, in our opinion, such a scheme is possible in the future if specialized funds for storage are involved in the process legal entities- banks and other financial and credit organizations.

Such interim measures contractual obligations in the field of real estate turnover are not provided for by the current legislation, however, they do not contradict it, and therefore may well be adopted by the participants civil relations purchase and sale of residential premises.

Of course, the buyer and seller will always be in different sides barricades - one is trying to buy cheaper with a minimum of risk, the other is trying to sell at a higher price with minimal losses for themselves. However, some general recommendations when concluding a preliminary agreement to protect a bona fide party from a person who wants to profit from a transaction can be given:

1. If you enter into a preliminary agreement through the mediation of a real estate company (90 - 95% of all transactions), it is in your interests to include this real estate agency in the person of a director or other third party in the agreement authorized person, acting on the basis of a power of attorney, but not just a manager. In the event of a dispute between the buyer and seller about the return of the advance amount, the real estate company, as a party to the contract, will be brought to court, most likely as a third party. The testimony of such a person may be decisive in establishing the guilt of any of the parties to the contract in not concluding the main purchase and sale agreement and, accordingly, making a decision to collect the advance amount and the amount of the penalty from the guilty person.

2. In the terms of the contract, provide for the parties to appear at certain times: notary office, date and time. Thus, in the event of a legal dispute, you will have an additional fact (or even a witness in the person of a specific notary) of the integrity of your intentions regarding the purchase (sale) of housing on pre-agreed conditions.

3. If possible, on all significant issues (especially if a compromise cannot be reached), try to communicate in writing with your party to the contract. At the same time, you should not save on postage costs: if you cannot deliver a letter against receipt (in addition to the signature, in this case, ask to write by hand: “I received a copy of the letter plus full name”), letters must be sent by registered mail with notification . Such a safety net in the form of evidence timely notification parties to the case trial may have vital importance when making a decision.

This may also be a notice of the date (time) of conclusion additional agreement to the preliminary or main agreement, and letters concerning documents necessary for concluding a transaction, etc. This does not include sending a claim to a party to the case - pre-trial procedure not required.

4. Indicate in as much detail as possible in the preliminary agreement who, for what and in what amount bears the costs and responsibility for non-compliance with the terms of the agreement. The purpose of such an agreement is to prepare, within the period agreed upon by the parties, all the documents necessary for concluding the main agreement. And the role of the real estate company in this process is far from the last. That's why perfect option, which brings honor to any realtor - establishing the responsibility of the company providing the process of collecting documents.

5. In case of making an advance foreign currency in the “settlements” or “payments” section, indicate the ruble equivalent, as well as on what date (receipt, conclusion of an agreement) and at what rate (Central Bank of the Russian Federation, purchase or sale of a specific bank) the payment is made.

6. Responsibility of the parties is the most “slippery” section of the contract. The best option It would be as complete as possible to indicate everything possible reasons liability and describe the procedure for determining guilt.

In conclusion, I want to reassure the so-called “culprits” of failed real estate transactions. Their situation is not hopeless. Even if there is every reason to believe that their guilt will be 100% established and proven in court, contact this government agency in resolving disputes is possible and necessary, because in the end, the proportionality of guilt and financial sanction is subjectively established by a specific judge, who collectively evaluates all the circumstances of the case: the amount of damages caused, the financial and other situation of the parties, the subsequent behavior of the parties, “force majeure” circumstances, etc. .d. Therefore, almost always the court follows Art. 333 of the Civil Code of the Russian Federation significantly reduces the penalty, initially, as a rule, equal to the amount advance payment made.

Proskurin O. E., partner Law firm"JBI Expert"

In science and practice, there is no consensus on whether it is possible to make a deposit under a preliminary agreement. This is facilitated by the uncertainty of the wording of Article 380 of the Civil Code of the Russian Federation. On the one hand, it can be concluded that the deposit is evidence of the conclusion of the “main” contract. It is clear that when concluding a preliminary agreement, the main one does not yet exist. On the other hand, there is no prohibition in law from making a deposit before concluding the main contract. There are two schools of thought on how to resolve this ambiguity.

According to the first point of view, a deposit under a preliminary agreement is impossible. This point of view is more popular in arbitration courts. For example, judges in the resolution of the Federal Arbitration Court of the West Siberian District dated June 17, 2004 No. F04/3281-399/A67-2004 noted that a preliminary agreement on concluding a future sale and purchase agreement cannot be secured with a deposit. The court indicated that only monetary obligations can be provided with a deposit. But obligations under a preliminary agreement are not such. The judges considered the arguments that the deposit agreement can exist independently of the purchase and sale agreement to be inconsistent with Article 380 of the Civil Code of the Russian Federation. However, this position is not the only one accepted in the specified district and in other districts. Thus, the arbitrators of the same West Siberian District satisfied the plaintiff’s demands for the return of the deposit made under the preliminary agreement (resolution dated January 21, 2004 No. F04/297-2312/A45-2004). And in the Ural District they believe that a deposit can ensure the execution of both the main and preliminary agreements (decision of the Federal Arbitration Court Ural district dated 09/06/04 No. Ф09-2878/2004-ГК). Courts general jurisdiction more consistent, and mostly “vote” for the deposit under the preliminary agreement. This is exactly what is stated in paragraph 51 of the Review judicial practice Supreme Court RF for the fourth quarter of 2005; approved by resolution of the Presidium of the Supreme Court of the Russian Federation dated 03/01/06.

I believe that the most correct point of view is that a preliminary agreement with the condition that the buyer pay a deposit is recognized as a mixed agreement, to different parts which different rules apply (Article 421 of the Civil Code of the Russian Federation). The judges of the Federal Arbitration Court of the Ural District came to similar conclusions (resolution dated June 29, 2006 No. F09-5566/06-S3). They did not agree that a deposit could secure the obligations under the preliminary agreement. At the same time, the court recognized the legal design mixed agreement, in which the deposit secures the obligations under the sale and purchase agreement planned for conclusion. The judges of the Federal Arbitration Court of the West Siberian District also considered that the main obligation should already exist at the time the deposit agreement was concluded. But they directly indicated that such an agreement may also contain a basic obligation. For example, such as a purchase and sale agreement or a preliminary agreement (resolution dated December 14, 2006 No. F04-8308/2006 (29303-A46-16)).

Taking into account the established judicial practice, the text of the preliminary agreement can indicate that it is mixed and contains an agreement on a deposit. This will give the obligations greater “stability” when considering a dispute in arbitration court. Article prepared information department with the assistance of the magazine