[똑똑한 부동산] “I only received the temporary down payment, but I want to cancel the contract”

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[김예림 변호사·이데일리 황현규 기자] I signed a contract and want to cancel it? What if it is a temporary contract, not the main contract? Let’s take a look at contract cancellation and double compensation that are common during rising house prices.

During periods of rising house prices, contracts are often terminated due to the seller’s change of mind. At this time, in principle, the buyer is compensated for twice the down payment in accordance with the Civil Law.

But what if the’temporary down payment’ was paid before signing a formal contract? The nature of the temporary down payment is usually reported as an indication of the intention to enter into a future sale contract before signing a formal contract.

(Photo = Yonhap News)

Legally, it is called a sale reservation. In principle, the temporary down payment cannot be regarded as a complete down payment, so if the parties change their mind before signing a formal contract, the seller can return it and the buyer can get it back.

However, there are exceptions. This is the case when a temporary contract is concluded that is comparable to a formal contract. If important matters were negotiated before exchanging the temporary down payment, this can be regarded as the main contract, not the temporary contract. Specific matters include ① the object for trading ② the transaction price ③ the payment date for the transaction price ⑤ the delivery date for the object for sale, etc.

If these matters are agreed between the parties, the sale and sale contract is deemed to be established at that time. If these are agreed upon with each other, the seller can cancel the sale contract only by paying twice the contracted down payment, even if the seller has only received a temporary down payment.

The same goes for the buyer. Of course, the temporary down payment cannot be returned, and the sale contract can be canceled only when the rest of the down payment, excluding the temporary down payment, is actually paid to the seller.

After all, the purpose of the contract is to ensure that the contract is fulfilled as agreed by the parties. If you are signing a contract, whether orally, it is better to specify and receive specific matters such as the object of sale through text message.