The contribution is a very common form of contractual collateral. By introducing the relevant provisions into the contract, the parties agree that the liability for non-performance for reasons that aggravate one of the parties a lump sum and will rely on the loss of data when concluding a contract of money (or other things) or on the need to reimburse the creditor with a double amount of money (or other things). However, the case may be more complicated, depending on the parties' findings.
The rules relating to the deposit must be defined precisely
First, It should be stressed that the contribution will only perform its functions if this is clearly apparent from the contract.
In this respect, it should be recalled the general interpretative rule that the agreements should examine what the parties’ intention and purpose of the agreement was and only In the second the order is based on its literal wording.
This means that even if the parties agree in the agreement that its collateral will be a ‘reward’ but do not specify the meaning of it, the rules relating to the refund of twice the amount of the deposit may not apply.
The correct interpretation of the statements of intent of the parties may lead to the conclusion that the parties have de facto established an advance (i.e. partial fulfilment of the benefit by one of the parties before the due date is due).
In conclusion, it is important to clarify in the agreement how the parties understand the contribution.
In conclusion, it should be stressed that, in view of the divergent position of doctrine and jurisprudence, it is worth to introduce clear and precise rules on the payment in the negotiation phase. This will avoid possible disputes between counterparties
Payment and compensation
However, what if the party exercises the right to withdraw from the contract and reimburses the counterparty twice the amount of the deposit?
By this the posts are then excluded from the general rules on compensation liability and replaced by an exclusive provision of flat-rate compensation, the size of which is determined by the amount of the contribution.
The rights of the creditor to claim twice the amount of the deposit are independent of whether it has suffered damage and to what extent due to default. At the same time, he is not entitled to claim damages on general terms.
This position seems to prevail among the representatives of doctrine, although different positions are also presented.
For example, the Supreme Court in passed dated 25 June 2009 III CZP 39/09 He pointed out that: ‘In the event of a default of an obligation, a creditor who has not withdrawn from the contract may recover damage on general terms and the compensation due to him is not limited to the value of the deposit or its double amount’.
An interesting view of this issue is presented in the explanatory memorandum of the resolution cited above. The Court of First Instance pointed out that, in the present case, a fugitive occurred two powers resulting from Article 394(1) KC and Article 471 KC.
A person whose interest has been affected by failure to perform a contract is chosen between these powers. Depending on what is better to protect its legitimate interest, it may exercise the powers provided for under Article 394(1) KC or claim compensation on general terms.
If the damage suffered by such a person is compensated by the deposit, he or she shall exercise the right provided for under Article 394(1) KC, on the other hand, if it fails to comply with the obligation, it is entitled to compensation under the conditions provided for in the under Article 471 and next. KC.
Different arrangement
At this point it should be recalled that Article 394 The KC is of a dispositive nature and the parties to the agreement may, in principle, settle the issue of the deposit freely. They may change both the extent of the situation in which the advance is forfeited or should be reimbursed twice as much as the amount due to the rightholder.
They may also agree that the executing party will have the right to choose between retaining the deposit (or demanding double value) and pursuing damages on a general basis. It is also permissible to provide that the party has the right to seek compensation in excess of the value of the deposit.
In conclusion, it should be stressed that, in view of the divergent position of doctrine and jurisprudence, it is worth to introduce clear and precise rules on the payment in the negotiation phase. This will avoid possible disputes between counterparties.