Comment to article 338. Consequences of termination and non-fulfillment of an obligation secured by a deposit The Civil Code of the Republic of Kazakhstan
The value of a deposit as a way to ensure the fulfillment of an obligation is to prevent non-fulfillment of the contract. Failure to perform the contract entails adverse consequences for the responsible party (see paragraph 4 of this commentary).
Termination of a contract secured by a deposit entails termination of the deposit agreement (which in turn entails the impossibility of applying the consequences provided for in paragraph 2 of the commented article). Upon termination of the deposit agreement, the fate of the transferred deposit is decided, taking into account the fact that the deposit is not something divorced from the main obligation, but part of it - part of the monetary obligation of one of the parties to the agreement. In two cases of termination of the contract secured by the deposit, the deposit must be returned without the consequences provided for in paragraph 2 of art. 338 CC (in case of termination of a contract secured by a deposit by agreement of the parties prior to the commencement of its execution and in case of termination of the secured obligation due to the impossibility of performance caused by circumstances for which the parties are not responsible).
In other cases, the fate of the deposit is decided based on the grounds for termination of the secured obligation. For example, upon termination of the contract after the start of execution by one of the parties, the fate of the deposit is decided by agreement of the parties, taking into account the fulfilled part of the contract, upon innovation, the deposit agreement is terminated, unless otherwise provided by agreement of the parties, upon withdrawal, the amount, terms and procedure for granting compensation are set by the parties, etc.
The deposit, in addition to being a way of ensuring the fulfillment of an obligation, simultaneously acts, like a penalty, as a measure of responsibility. And if any party has violated the basic obligation that led to its non-fulfillment, it, as responsible for such violation, is obligated to pay the other party money in the amount of the deposit amount. Therefore, if the party who transferred the deposit is responsible for non-fulfillment of the secured obligation, then it remains with the party who received the deposit. If the party who received the deposit is responsible for non-fulfillment of the main obligation, then it must return the amount of the deposit and pay the other party an additional amount of money in the amount of the deposit.
Payment of the deposit does not release the party responsible for non-fulfillment of the obligation from compensating the other party for losses incurred in connection with non-fulfillment of the obligation, taking into account the amount of the deposit. The rules of this rule are complementary in case the agreement does not provide anything on this issue. At the same time, by agreement of the parties, other consequences may be provided for the compensation of losses under the obligation secured by the deposit. The contract may provide, for example, that damages can be recovered in full in excess of the amount of the deposit, that only the deposit can be recovered, etc.
A party may be held responsible for non-fulfillment of an obligation secured by a deposit if there are conditions of liability for breach of an obligation (see art. 359 of the Civil Code and commentary thereto).
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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.
Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.
Deputy head Professor Basin Yu.G. ch
