Sample advance agreement 2021. Download form

The concept of an advance can be characterized as follows - it is some prepayment in the form of a sum of money or some property value. An advance can be used in different types of contracts and is part of the amount of any transaction. It can be used when purchasing real estate, paying for certain works, and in other cases.

Form and sample
Free download
Online viewing
Expert tested

FILES

The advance payment agreement is a written confirmation of the transfer of an advance payment in favor of the Seller. Below we will look at how an advance agreement is concluded using the example of the purchase and sale of an apartment.

Advance agreement

Kurgan
May 29, 2023

We, Citizen Vladislav Mikhailovich Lysenko, born on January 1, 2001, living at the address Kurgan, 8 microdistrict, 38, apt. 89, passport ХХХХ ХХХХХХ, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan 00.00.0000, hereinafter referred to as Seller and Citizen Marina Albertovna Guzeeva, born on January 1, 2000, living at 24 microdistrict, 47, apt. 6, passport ХХХХ ХХХХХХ, issued by the Federal Migration Service of Russia for the Kurgan region in the city of Kurgan 00.00.0000, hereinafter referred to as the Buyer entered into this agreement as follows:

The preamble to the agreement includes:

type of transaction;
place and date of conclusion of the agreement;
names and roles of parties to the agreement;
residential addresses and passport details of the parties.

The essential terms of this type of transaction are:

advance amount;
advance payment terms;
full information about the apartment for sale.

In what cases is it possible to return the deposit when purchasing an apartment with a mortgage?

Article 381 of the Civil Code of the Russian Federation states that the deposit is returned to the buyer if the seller fails to fulfill his obligations. In particular, if he:

did not register all the residents registered in the apartment. People registered in the residential area have the right to live on it, so the property is considered to be under an encumbrance.
changed the decision to sell the home regardless of why he did it;
did not pay off debts on utility bills before the sale and purchase transaction, which is contrary to current legislation;
provided deliberately false information when concluding a preliminary agreement on a deposit when purchasing an apartment with a mortgage (for example, the seller could hide the fact that the apartment has several owners);
did not comply with the terms of the preliminary agreement (for example, did not prepare documents for sale);
did not appear to sign the main agreement for the transaction on the specified day.

In all of the above situations, the seller must not only return the deposit to the buyer in full, but also pay him the same amount on top as a fine.

Study in advance the information on how to get your money back if the seller violates the terms of the contract. Usually, it is enough for the buyer to inform the other party about the need for a refund. If the seller refuses, you should file a lawsuit - most likely, it will be satisfied.

Subject of the agreement

1. Within the scope of this agreement, the Parties undertake to enter into an agreement for the purchase and sale of an apartment located at the address: Kurgan, Lenin Street, building 146, building 6, apartment 77 at a price of 2,000,000 (Two million) rubles 00 kopecks. The following is information about the apartment itself: 2. The apartment is located on the seventeenth floor, consists of two rooms, the area is 50 (Fifty) square meters. After describing the characteristics of the apartment, the amount and terms of the advance are indicated: 3. The Buyer, after signing this agreement, within three calendar days undertakes to transfer to the Seller 150,000 (One hundred fifty thousand) rubles 00 kopecks as an advance. This amount is part of the payment for the price of the apartment. The fact of transfer of money to the Seller is confirmed by a receipt.

The listed conditions are the most important component of this type of transaction. Transferring the advance amount is possible in other ways. This is discussed by the parties and specified in the contract. The most reliable way is to transfer money to a notary office. The contract also stipulates other conditions, such as:

information about persons registered in the apartment;
rights, duties and responsibilities of the parties;
information that the seller is the owner of the alienated property;
force majeure circumstances.

What is a deposit when buying an apartment with a mortgage?

When purchasing an apartment with a mortgage, the buyer often transfers an advance or deposit to the seller, thereby confirming the seriousness of his intentions. According to Art. 380 of the Civil Code of the Russian Federation, we are talking about the amount of funds that the owner of the property receives to pay for it. Payment is made according to a preliminary agreement, which is drawn up in writing. The main feature of the deposit is that in case of violation of obligations, it will not be returned to the buyer, while the advance payment will be transferred back without any consequences.

Article 454 of the Civil Code of the Russian Federation regulates the procedure for transferring the subject of the transaction, and Article 381 - the consequences that may occur as a result of violation of the requirements of the preliminary agreement. The procedure for transferring money when purchasing real estate with a mortgage is regulated by a number of legislative acts.

The transfer of a deposit (advance payment) when purchasing an apartment with a mortgage is carried out in two stages:

drawing up an agreement between the parties in writing;
filling out a receipt confirming the fact of transfer of funds.

In this case, it is mandatory to comply with a number of rules:

The agreement should indicate the amount of funds transferred to the seller, as well as the date and terms of payment for the entire cost of the apartment. In addition, the date of conclusion of the basic contract should be indicated here.
It is important that all owners of the property being sold take part in the registration process, if there are two or more of them.
The seller of the property must confirm ownership of it.

What functions does a preliminary agreement on a deposit perform when purchasing an apartment with a mortgage?

Evidence-based . This agreement serves as confirmation that the contract for the sale of housing between the seller and the buyer has been concluded.
Payment _ The deposit amount is counted towards the cost of the purchased apartment.
Security . The agreement ensures the obligations of the parties when completing a transaction.

According to the law, an advance payment when purchasing an apartment with a mortgage can be transferred from the buyer to the seller without the presence of third parties. At the same time, experts recommend inviting a lawyer, a notary office employee or a real estate agency specialist who can act as witnesses in the event of controversial situations.

Rights and obligations

The section on the rights and obligations of Counterparties under this advance agreement is as follows:

The Seller undertakes to: - provide the Buyer with a complete package of documents for the apartment; — promptly inform the Buyer of information about circumstances that may affect the fulfillment of obligations under this agreement; — do not take any actions to change the structure of the apartment (repairs, remodeling, etc.) without agreeing with the Buyer; - do not enter into similar agreements with other persons at the time this agreement is in effect; - before the parties sign a transaction for the purchase and sale of an apartment, make payments on all bills that relate to the property being sold (rent, utility bills, other debts). — start deregistering all persons related to the property being sold;

What is the difference between an advance and a deposit from a deposit when buying an apartment with a mortgage?

Many of us often confuse the concepts of advance, deposit and deposit, throwing them “into one pile” and equating them to each other. However, experts argue that there are significant differences between these methods of ensuring the fulfillment of obligations.

Today, the word “collateral” is often used for other purposes. If the buyer says: “I paid a deposit for the apartment,” then in fact he may mean both a deposit and an advance. Most likely, we are talking about concluding an agreement between individuals or investing funds in a company.

[offerIp]

At the same time, the economic dictionary states that a pledge is one of the ways a debtor fulfills his obligations when he pledges real estate or other valuables to the creditor (pledgee). And now it becomes clear that the use of this term in the above example was inappropriate.

The concept of “advance” is well known to each of us. In terms of real estate transactions, it means that the buyer transfers a certain amount of funds, which is only part of the cost of housing, towards the purchase of an apartment. As for the seller, he may well dispose of the money received at his own discretion, but if the transaction is cancelled, he will have to return it. The buyer makes an advance payment, as if confirming his word of honor, but no official obligations on either side are recorded.

Deposit is a more complex concept. Its task is to determine the mutual obligations of the parties in accordance with the norms of the Civil Code. Having transferred the deposit to the seller when purchasing an apartment on a mortgage, but refusing for one reason or another from the transaction in the future, the buyer loses this amount. If the refusal to complete the transaction comes from the seller, then, by law, he is obliged to return the deposit to the buyer in double amount. If the transaction is successful, the deposit amount is included in the cost of housing.

As you can see, the scheme is quite understandable and fair, however, as practice shows, it is not always implemented. To avoid problems in the future, it is important to conclude a purchase and sale agreement in writing with a mandatory indication of what exactly the buyer paid - a deposit or an advance payment. Strict adherence to all formalities disciplines all participants in the transaction.

Responsibility of the parties

This section includes a list of circumstances in the event of which the Counterparties bear financial liability. The clauses of the agreement on the responsibility of the parties are as follows:

— in case of failure to fulfill obligations under the advance payment agreement, namely refusal, violation, or impossibility of the Seller to fulfill obligations, the amount of the advance payment is returned to the buyer within 1 (one) calendar day from the moment of discovery of the fact of failure to fulfill obligations. Also, the seller, if such a fact is discovered, undertakes to pay a penalty in the amount of 25,000 (Twenty-five) thousand rubles 00 kopecks (a different amount of the penalty may be prescribed). - if the agreement on the purchase and sale of an apartment is not concluded at the time of validity of this agreement due to the fault of the Buyer, the advance amount paid will not be returned to him. - if situations arise that result in the impossibility of fulfilling obligations under this agreement, in which the parties are not responsible, as well as situations related to facts that may affect the Buyer’s loss of ownership of the property he is purchasing, the Parties have the right not to enter into an agreement, and the advance amount is returned to the Buyer in full. The above situations that may affect the loss or restriction of property rights may include: - if in relation to this property, in the process of making any transactions related to it, violations of the law were committed; - if third parties retain the rights to use the apartment; — detection of significant facts that may have a detrimental effect on the signing of the contract.

It is important to indicate in the document that the value of the property is unchanged. The final provisions of this transaction indicate the conditions for the procedure for its implementation, namely:

the payment procedure is indicated;
the form of this agreement for the purchase and sale of an apartment;
To sign the document, the presence of all owners of this property is required;
indicates the procedure for submitting a package of documents for state registration of the transfer of ownership rights to the purchased apartment. Such actions can be carried out independently, with the involvement of a notary, or through an organization that specializes in such issues.

Let's move on to practice - how to properly carry out a deposit

Stage No. 1 – negotiations

In order to more productively discuss the deposit and the future transaction, all buyers and sellers, their realtors/lawyers, if any, should be present at the negotiations. Negotiations for minors are conducted by their parents (guardians/trustees).

If I make a deposit, I usually discuss the following points:

Deposit size. As I wrote above, the buyers and sellers themselves must agree on the amount. Usually around 50 - 100 thousand rubles.
In what form will the deposit be transferred - cash or non-cash?
Responsibility of the parties after transfer of the deposit.
We usually agree this way: if the sellers refuse to sell the apartment, the deposit is returned to the buyers in double amount + the return period. If buyers, the deposit remains with the sellers.
Very important: Discuss in advance the reasons and force majeure conditions for which liability occurs or does not occur. For example, if the seller is unable to complete the deal due to sudden illness, he can return the deposit amount, but not double the amount. Or when buyers have a mortgage - will they have liability if the bank refuses them a mortgage. Whether the deposit remains with the seller in this case or not.
Additional points.
In addition to the deposit itself, various points can be discussed. For example, this could be a list of documents that sellers are required to provide to buyers. Or a condition that sellers must check out of the apartment before the purchase and sale transaction. And so on.

It is important to discuss everything in advance, because all points need to be listed in the documents below.

Stage No. 2 – after negotiations, we draw up and sign documents

In order for the money to be considered a deposit, be sure to sign 2 documents - a preliminary purchase and sale agreement and an agreement on the deposit. These two documents complement each other.

If you sign only one of these documents, in court, in most cases, the deposit may be recognized as an advance. Unless, of course, the parties go to court. The main difference between an advance and a deposit is that with an advance there is no liability. Even if one of the parties simply does not want to enter into a deal, the seller does not have the right to keep the advance for himself. He must return it to the buyer, and not in double amount.

To prove my words, I have listed below recent court decisions in disputes about deposits. Be sure to read them.

The court recognized the deposit as an advance ↓ Example No. 1. Recognized as an advance. There was only a preliminary agreement.

Situation: The buyer and the seller signed only a preliminary purchase and sale agreement, where they indicated the transfer of a deposit of 100 thousand rubles. They also indicated the period for concluding the purchase and sale agreement (main). Then this period was increased, i.e. additionally signed an extension agreement. But we still didn’t have time to reach a deal. The buyer believes that it was the seller’s fault - the seller avoided completing the transaction because he found another buyer at a higher price. And he demanded a double deposit - 200 thousand rubles. But the seller thinks differently - the buyer did not have the entire amount to purchase the apartment. As a result, the buyer sued to get back the double deposit.

District Court (decision No. 2-1400/2018) : From the preliminary agreement, an obligation arises only to conclude the main purchase and sale agreement - clause 1 of Art. 429 of the Civil Code of the Russian Federation. There is nothing in the law about collecting double deposits through a preliminary agreement. Therefore, an advance was transferred, not a deposit. The court doesn’t care whose fault the deal was not finalized. The advance payment is always returned to the buyer.

The court decided to recover only 100 thousand rubles from the seller, and not 200.

Example No. 2. This is an advance, even if you signed a deposit agreement.

Situation: The buyer gave the seller a deposit in the amount of 50 thousand rubles. To do this, they only signed a deposit agreement. It stated that they must sign the purchase and sale agreement by January 30th. But they never reached a deal. The buyer believes that it was the seller’s fault, so he demanded a double deposit from him - 100 thousand rubles. But the seller did not return anything to him. The buyer went to court to collect from him a double deposit, state duty and for legal services.

District Court (Decision No. 2-214/2018) : The fact that the parties signed an agreement on the deposit does not mean anything. This agreement must be concluded only together with the purchase and sale agreement (main) - clause 1 of Art. 380 Civil Code of the Russian Federation. Only in a purchase and sale agreement does the deposit perform a security function. Since there was no contract, it is an advance.

The court decided to collect from the seller only 50 thousand rubles, state duty and for legal services.

Example No. 3. An advance was transferred. Although the preliminary agreement indicated a deposit.

Situation: The buyer gave a deposit of 60 thousand rubles. The parties signed only a preliminary agreement, which indicated the deadline for signing the main purchase and sale agreement - until April 10. On March 30, the buyer came to the notary, but the seller offered to sign several purchase and sale agreements and an agreement of inseparable improvements. The seller wanted to avoid tax on the sale. The buyer refused to do this because such conditions had not been discussed before and they were not specified in the preliminary agreement. The deal fell through. The buyer believes that it is the seller’s fault, so he must return double the amount of the deposit - 120 thousand rubles. But he refused, and the buyer went to court.

District Court (Decision No. 2-62/18) : Within the meaning of paragraph 1 of Art. 380 of the Civil Code of the Russian Federation, the deposit agreement ensures an obligation that arises only under the concluded purchase and sale agreement (the main one). If the contract was not concluded, then there is no obligation. Since there is no obligation, then the money was transferred in advance. And it must be returned in any case. It doesn’t matter whose fault the deal was not finalized.

Only 60 thousand rubles were collected from the seller. Although they demanded 120.

The court recognized that there was a deposit ↓ Example No. 1. Here the case reached the Supreme Court - one of the highest courts in Russia. He admitted that it was the deposit that was being transferred. There was a preliminary contract and a deposit agreement.

Situation: The buyer gave the seller a deposit of 100 thousand rubles. Upon transfer, they signed a preliminary purchase and sale agreement and an earnest money agreement. The seller also wrote a receipt for receiving the money. The preliminary agreement indicated the deadline by which the purchase and sale agreement (main) must be signed. But the buyer was unable to find the money to buy the apartment on time. And he demanded the seller return these 100 thousand rubles. He believed that he was passing on an advance. The seller refused, so they sued him.

The buyer indicated in the claim that the deposit secures the obligation only under the purchase and sale agreement, but the parties did not sign such an agreement. So it was an advance.

District Court (decision No. 2-882/15) : The buyer does not have the right to demand money back. The parties signed a deposit agreement and specified the necessary requirements in it. In addition, we signed a preliminary purchase and sale agreement, in which we also indicated the amount as a deposit. The buyer's claim was denied and he filed an appeal.

Regional Court (Determination No. 4G-10267/2015) : The deposit is considered as such only when the purchase and sale agreement (main) is signed - Art. 380 and 429 of the Civil Code of the Russian Federation. And since it was not signed, the deposit is considered an advance. As a result, the decision of the district court was overturned and a ruling was made: The seller must return 100 thousand rubles to the buyer. The seller did not agree with this and filed a cassation with the Supreme Court.

Supreme Court (Determination No. 18-КГ16-29) : The regional court is wrong. In paragraph 4 of Art. 380 of the Civil Code of the Russian Federation states that the deposit can be transferred upon the conclusion of a purchase and sale agreement, which is provided for in the preliminary agreement. The parties signed both a preliminary contract and a deposit agreement. The buyer himself is to blame for not finding the money to buy the apartment. He did not fulfill his obligations, which were specified in the preliminary agreement. The regional court's ruling was canceled and the case was sent there for a new trial.

Again the regional court (Determination No. 33-15858/2016) : Now the judicial panel agreed with the Supreme Court. It was determined that a deposit had been transferred. And since the buyer himself is to blame for not reaching a deal, the money remains with the seller.

Example No. 2. This is a deposit. There was an agreement on a deposit and a preliminary contract.

The buyer gave the seller a deposit of 100 thousand rubles. To do this, they signed a deposit agreement and a preliminary contract. In both documents the deposit was indicated. But in the end, the seller refused to sell the apartment because she found another buyer for a higher price. The seller did not return anything to the buyer, so he had to go to court. At the trial, the buyer demanded from the seller a double deposit of 200 thousand rubles, a percentage for the use of other people's money of 15 thousand and a state duty of 5.6 thousand.

District Court (Decision No. 2-3130/2017) : In paragraph 4 of Art. 380 of the Civil Code of the Russian Federation is written - by agreement of the parties, the deposit secures the obligation to conclude the main agreement on the conditions stipulated by the preliminary agreement. There was a preliminary agreement. It was the seller who refused the deal because he found another buyer.

The court collected from the seller a double deposit of 200 thousand rubles, interest for the use of other people's money of 15 thousand and a state duty of 5.6 thousand.

The agreement and preliminary contract can be drawn up in simple written form. There is no need to contact a notary about this; he does not deal with such documents. If you have no experience, it is better to contact a lawyer or realtor.

Preliminary purchase and sale agreement

Just on the basis of the preliminary agreement, buyers and sellers undertake to enter into a purchase and sale agreement (main) in the future - clause 1 of Art. 429 of the Civil Code of the Russian Federation. The preliminary one is very similar to the main one.

What to include in it:

Full name and passport details of sellers and buyers. If there are minors under 14 years of age, then data from the birth certificate and passport data of one of the parents. If from 14 to 18 years old, then his passport details and one of his parents. If there is a proxy, his full name, passport details, number and date of execution of the power of attorney.
Duration of concluding the purchase and sale agreement. For example, before or no later than December 25, 2021. The parties can then increase the term. To do this, you need to sign a written agreement to the preliminary contract.
The price of the purchased apartment.
Characteristics of the apartment - exact address, area, etc.
Based on what document does the seller own the apartment? For example, they bought it, then the details of the purchase and sale agreement are the date of conclusion and state registration number.
The fact that it is the deposit and its amount that is transferred – in numbers and in words.
The responsibility of each party for the deposit - if the seller refuses to sell the apartment, then he returns the deposit in double amount + the return period (for example, within three days). If the buyer, then the seller leaves the deposit for himself - Art. 380 and 381 of the Civil Code of the Russian Federation.
It is even better to indicate for what reasons the deposit is returned to the buyer and does not remain with the seller. For example, if the buyer is not approved for a mortgage. Or due to a sudden illness of one of the parties.
Payment procedure. For example, the buyer transfers such and such part of the amount as a deposit. The second part is placed in a safe deposit box, which sellers will receive after registering the agreement. The third part will be transferred by the bank to such and such an account of the seller - this is if the buyers have a mortgage.
Additional points. For example, a list of documents that the seller must provide to buyers. Or who will pay the costs of processing documents and which ones.

The preliminary agreement is signed only by sellers and buyers. Or a confidant. If one of the parties is under 14 years of age, then one of the parents (guardian, trustee) will sign the preliminary agreement for him. If from 14 to 18 years old, then he and one of the parents (guardian, trustee).

How many copies of the preliminary agreement should there be ? Typically the number of copies is equal to the number of sellers and buyers, plus several copies may be needed by different organizations. For example, 2 buyers, 3 sellers - 5 copies. If buyers have a mortgage, the bank needs one more copy - already 6. If there are minors among the buyers or sellers, the guardianship and trusteeship authorities will need a copy - already 7. And so on.

Agreement on deposit

The agreement comes as an annex to the preliminary contract. It must indicate:

That the agreement is drawn up for the proper execution of the preliminary agreement + the date of its signing.
Full name and passport details of sellers and buyers. If there are minors under 14 years of age, then data from the birth certificate and passport data of one of the parents. If from 14 to 18 years old, then his passport details and one of his parents. If there is a proxy, his full name, passport details, number and date of execution of the power of attorney.
The amount of the deposit and that it goes towards the cost of the apartment.
The responsibility of each party for the deposit - if the seller refuses to sell the apartment, then he returns the deposit in double amount + the return period (for example, within three days). If the buyer, the seller keeps the deposit for himself.

The agreement is signed only by sellers and buyers. Or a confidant. If one of the parties is under 14 years old, one of the parents (guardian, trustee) signs the agreement for him. If from 14 to 18 years old, then he and one of the parents (guardian, trustee).

How many copies of the agreement should there be ? The number of copies is equal to the number of parties to the transaction + additional ones. For example, if there are two buyers and two sellers, then 4. Another one may be required by the buyers’ bank if they have a mortgage. Or guardianship authorities.

Stage No. 3 - transfer the money and receive a receipt from the seller

When I make deposits, I advise buyers to hand over the money only after receiving a receipt from the sellers.

Money can be transferred in cash or non-cash. If in cash, you need to wait until the seller counts the bills and confirms that the money has been received and has no complaints. If non-cash, it is better to indicate the purpose of the transfer in the payment purpose. For example, “Transfer of deposit and date.” And you still need to additionally take a receipt from the seller for receipt.

Advance, deposit, security payment in accounting

In addition to the traditional use of advance payments, deposits and security payments in civil law, they can be used in so-called tax optimization. At the same time, accountants must be careful: careless use of these types of payments carries certain risks. To reduce them to a minimum, let's consider what happens in accounting when applying an advance, deposit and security payment.

The level of risk is directly related to the quality of reflection of business processes in accounting. Let us recall that regulatory authorities are able to compare information about a transaction from several sources. Therefore, all counterparties must have a common understanding and reflection of transactions.

Let us highlight the main stages of the transaction:

occurrence of the main obligation and transfer of money;
fulfillment/non-fulfillment of the main obligation;
final settlement and payment offset.

What happens at different stages of the transaction

LLC "Chainik" rents a gas stove to LLC "Kofeynik". As part of the transaction, 2 thousand rubles were transferred, including VAT = 2000 * 20/120 = 333 rubles

Basis for application for each type of advance payment:

for an advance payment: Chaynik LLC needs to pay for gas. Therefore, “Kettle” takes an advance to pay the supplier;
for the deposit: “Teapot” is afraid that “Coffeepot” will find a stove with a ceramic coating and refuse to fulfill the contract. The deposit will compensate for losses from the stove's downtime. After all, “Kastrulya” LLC had to be refused for the sake of “Coffee Pot” LLC and she is a lost client;
for a security deposit : there are fears that the “Coffeepot” will flood the stove and there will be a gas explosion. “Chaynik” needs a security deposit to pay for the renovation of the house.

Responsibility of the parties (suspension of delivery, return of advance payment under the contract)

If the advance is not paid, the supplier has the right:

suspend the transfer of goods (clause 2 of article 487, article 328 of the Civil Code of the Russian Federation);
refuse your obligations completely and demand compensation for losses (clause 2 of article 328 of the Civil Code of the Russian Federation);
deliver the products and demand payment of interest under Art. 395 Civil Code of the Russian Federation;
transfer the goods and demand a penalty, if such a condition is stipulated in the delivery agreement with prepayment.

If the seller does not fulfill his obligations, then the buyer may demand (clause 3 of Article 487 of the Civil Code of the Russian Federation):

transfer of paid products;
refund of prepayment.

In what cases will it not be possible to claim an advance? Judicial practice on this issue contains the following precedents:

If the contract has a special condition that the prepayment is returned after termination of the transaction, then it will be possible to receive an advance only after the early termination of the contract (determination of the Supreme Arbitration Court of the Russian Federation dated September 19, 2013 No. VAS-7332/13 in case No. A56-44434/2011) .
If the buyer has not made the full advance payment stipulated in the delivery agreement with prepayment, then the supplier does not have an obligation to transfer the goods. Moreover, in this case, the buyer will not be able to claim his advance payment on the basis of clause 3 of Art. 487 of the Civil Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 04/08/2013 in case No. A43-17586/2012).
If the goods have not yet been received and the deadline for its transfer has not yet arrived, and the buyer wishes to return the advance payment, then he cannot demand payment of interest for the use of the advance amount (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 28, 2011 in case No. A43-12388/2010) .
If the goods are delivered on time, the advance payment is not returned to the buyer (resolution of the Federal Antimonopoly Service of the Volga Region dated February 21, 2011 in case No. A57-7141/2010).

Subtleties of drawing up an agreement for a mortgage at Sberbank

The principle of buying an apartment in Sberbank with a mortgage has a number of differences. In particular, after receiving approval, the credit institution allocates 120 days to find suitable housing and resolve legal issues.

During this period, it is necessary to prepare papers and draw up an agreement. At the same time, Sberbank does not put forward strict requirements for the house, but sets them for the living space. The latter must be legalized. In addition, execution of a preliminary purchase and sale agreement is mandatory. It should contain a description of the size of the deposit (advance) and the specifics of their return. In addition, the buyer transfers the advance payment to the account of a banking institution, which is an additional guarantee for the seller.

We formulate conditions for prepayment

The settlement period in a supply agreement with prepayment is set either by a specific date or by a time period, but always occurs before the delivery of the goods. If an advance payment is specified in the transaction, but its term is not defined, then:

Payment for products must be made within 7 days from the moment such a demand is made by the supplier (Part 2 of Article 314 of the Civil Code of the Russian Federation).

What risks does the buyer bear if the contract stipulates advance payment for the goods, but the deadline for making it is not defined, find out in ConsultantPlus. If you do not have access to the K+ system, get a trial online access for free.

The penalty for late payment can be calculated only from the date of delivery of the goods (post. FAS Volga District dated November 17, 2011 in case No. A12-2943/2011).
When shipping products before prepayment, the buyer is obliged to pay on the day of delivery or immediately after it (Clause 1, Article 486 of the Civil Code of the Russian Federation). Otherwise, interest will be charged on the amount under Art. 395 of the Civil Code of the Russian Federation, the period is counted from the moment of shipment plus from 2 to 5 business days required for a bank transfer (clause 16 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 22, 1997 No. 18).

In addition, paragraph 4 of Art. 487 of the Civil Code of the Russian Federation makes it possible to establish in a supply contract with prepayment the seller’s obligation to pay a percentage of the prepayment amount as a fee for using a commercial loan (clause 13 of the post of the Plenum of the Supreme Court of the Russian Federation No. 13, Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 of October 8, 1998). If the transaction does not determine the amount and procedure for paying interest, then the first condition is calculated in accordance with the refinancing rate (clause 2 of Article 823, clause 1 of Article 809 of the Civil Code of the Russian Federation), and interest is transferred monthly (clause 2 of Article 809 of the Civil Code RF).

With a mixed prepayment, it is recommended, in the interests of the buyer, to stipulate in the text of the contract that for the second half of the payment, in accordance with clause 1 of Art. 317.1 of the Civil Code of the Russian Federation, interest is not accrued for using the deferment amount. It is also advisable, when making partial prepayment or supplying goods in batches, to determine what part of the product is paid in advance if the parties to the transaction are VAT payers.

You can enter the agreement using the link below.

How to draw up an advance agreement - sample

In order to correctly draw up a document on the transfer of an advance payment when purchasing real estate (on a mortgage or directly), it is advisable to have a sample agreement before your eyes. The contract states:

Place and time of registration (at the top), that is, the name of the locality and the day of conclusion.
Information of the parties - full names, addresses, information from the passport and telephone numbers.
Information about the apartment - the object of the transaction, the price of housing and the date of execution of the basic contract.
The amount of the deposit or advance (in numbers and text).
Features of money transfer.
Rights and obligations of participants (when filling out, the Civil Code of the Russian Federation, Article 381 is taken as a basis).
Indication of the validity of the contract from the date of signing.
Force majeure and its effect on the document.
Details of the buyer and seller, as well as their signatures.