Recovery of the deposit amount by verbal agreement on the purchase of a house

On February 18, 2022, No. 7575-21-00-2/3819, the Alatau District Court of Almaty, consisting of: the presiding judge Omen B., with the secretary of the court session Umitbekova G., considered using a WhatsApp video conference in open court a civil case on the claim of: JACQUES to the School for the recovery of a deposit

On the website "krisha.kz " an announcement was published about the sale of an apartment building with a plot of land located at the address: Almaty city, Alatau district, md.Ulzhan-1, 38 Akzhar Street, at a price of 28,000,000 tenge.

The plaintiff contacted the defendant and examined the house, the parties agreed on a purchase price in the amount of 25,000,000 tenge. On December 23, 2019, Sh.K.T. gave a receipt to Zh.K. that she accepted a deposit in the amount of 500,000 tenge for the purchase of her house.

The plaintiff, appealing to the court, asks to collect a deposit in the amount of 500,000 tenge, since the purchase and sale agreement was not concluded, the defendant refused to sell the house to the plaintiff, the defendant sold the house to third parties.

Based on Articles 272, 338 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the plaintiff requests to collect a deposit from the defendant in the amount of 500,000 tenge In her response to the statement of claim, the defendant indicated that in December 2019 she posted an ad on the website "krisha.kz " your apartment building.

The plaintiff applied for the ad, and subsequently expressed a desire to buy a house, providing a deposit of 500,000 tenge, with a request to remove the ad from the site.

The plaintiff refused to buy the house himself, because he was refused a loan, she was waiting for the conclusion of the purchase and sale of the house.

Since the deal was cancelled by the plaintiff himself, the defendant sold the house to third parties on February 25, 2021.

At the hearing, the plaintiff's representative supported the stated claims in full, asked to collect the deposit, as the transaction did not take place due to the defendant's fault.

At the hearing, the defendant's representatives did not agree with the claim, they asked to refuse.

At the same time, it was explained that the contract for the sale of the house was supposed to be concluded within two weeks, but the plaintiff refused to buy the above-mentioned house, as he was refused a loan.

In accordance with paragraph 1 of Article 9 of the Civil Code, the protection of civil rights is carried out by the court by recognizing the rights; restoring the situation that existed before the violation of the right; suppressing actions that violate the right or threaten to violate it.

As follows from the case file, on December 23, 2019, there was an oral agreement between SHK.T. and Zhumabekov A.K., in connection with which SHK.T. wrote a receipt stating that she accepted money in the amount of 500,000 tenge to ensure the execution and conclusion of a contract for the sale of an apartment building with a land plot for the above the address.

The total value of the real estate was verbally agreed by the parties to 25,000,000 tenge. The above circumstances are not disputed by the parties.

The court considers the arguments of the plaintiff's side to recover the amount of the deposit on the following grounds to be untenable and unfounded.

By virtue of paragraph 1 of Article 337 of the Civil Code, a deposit is an amount of money given by one of the contracting parties to account for payments due from it under the contract to the other party and to secure the conclusion and execution of the contract or the fulfillment of another obligation.

In accordance with paragraph 2 of Article 338 of the Civil Code, if the party that gave the deposit is responsible for non-fulfillment of the obligation, it remains with the other party, and if the party that received the deposit is responsible, it is obliged to pay the other party double the amount of the deposit.

Thus, the deposit performs two functions: it is a way of securing the obligation and proof of the conclusion of the contract.

In accordance with Article 393 of the Civil Code, a contract is considered concluded when an agreement has been reached between the parties in the required form on all essential terms.

Essential are the terms of the subject of the contract, the terms that are recognized as essential by law or are necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

By virtue of Article 406 of the Civil Code, under a contract of sale, one party (the seller) undertakes to transfer property (goods) to the ownership, economic management or operational management of the other party (the buyer), and the buyer undertakes to accept this property (goods) and pay for it a certain amount of money (price).

At the same time, during the court session, the plaintiff's side did not provide reliable evidence that the defendant, when concluding an agreement on a deposit and intending to conclude a contract for the sale of a real estate object, did not fulfill its obligations.

By virtue of paragraphs 3.4 of Article 8 of the Civil Code, the exercise of civil rights should not violate the rights and legally protected interests of other subjects of law. Citizens and legal entities must act in good faith, reasonably and fairly in exercising their rights, observing the requirements contained in the legislation and the moral principles of society.

Good faith, reasonableness and fairness of the actions of participants in civil law relations are assumed.

The court sees unreasonable actions on the part of the plaintiff himself. Thus, the court found that the plaintiff, by giving a deposit, knew that he was assuming obligations to pay money for the purchase of the above-mentioned house, but subsequently did not conclude a purchase agreement.

In addition, the above-mentioned property was not pledged anywhere, it was not under encumbrance, the seller wanted to sell the house for a stipulated amount.

Thus, from the explanations of the defendant's side, as well as from the submitted documents, it follows that the apartment building with the land plot was not encumbered, there were no arrests, there was no collateral on it, the documents were ready for the execution of the purchase contract, but the conditions for the deposit were not properly complied with by the plaintiff's side.

By virtue of paragraph 2 of Article 277 of the Civil Code, in cases where an obligation does not provide for a time limit for its fulfillment and does not contain conditions allowing it to determine this time limit, it must be fulfilled within a reasonable time after the obligation has arisen. An obligation not fulfilled within a reasonable period of time, as well as an obligation, the term of which is determined by the moment of demand, the debtor is obliged to fulfill within seven days from the date of the creditor's demand for its fulfillment, if the obligation.

performance at another time does not follow from the legislation, the terms of the obligation, business practices or the nature of the obligation. It can be seen that the receipt does not specify the fact of concluding the purchase and sale agreement on time, but the obligations should have been fulfilled within a reasonable time.

The plaintiff's party has not provided evidence that he was ready to conclude a purchase and sale agreement within a reasonable time, while he was not in good faith with respect to both his own and the rights and obligations of the other party.

The plaintiff's argument that the defendant refused to sell an apartment building with a land plot is untenable, since these facts do not reflect the fact of the plaintiff's actual intention to conclude a purchase agreement, moreover, from the submitted correspondence, it can be seen that the plaintiff was not provided with a loan for the purchase of real estate.

As a result of improper performance, including non-fulfillment of the terms of the obligations assumed, taking into account the requirements of part five of Article 6 of the CPC, based on the criteria of fairness and reasonableness, it considers it impossible to satisfy the plaintiff's claim to recover the amount of the deposit transferred to secure the conclusion of the purchase agreement.

By virtue of the requirements of Article 113 of the CPC, at the request of the party in whose favor the decision was made, the court awards, on the other hand, the costs incurred by her to pay for the assistance of a representative who participated in the process and is not in an employment relationship with this party, in the amount of the costs actually incurred by the party.

The plaintiff's representative submitted a receipt for payment for the representative's services in the amount of 100,000 tenge. According to paragraph 14 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 15, 2014 "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases", in the case of an excessively high documented amount of expenses (payment order or receipt) for the payment of assistance from a representative involved in the process, the court must be guided by the criteria of good faith, fairness and reasonableness provided for in paragraph 4 of Article 8 of the Civil Code and part five of Article 6 of the CPC.

Guided by the criteria of good faith, fairness and reasonableness, as well as taking into account the volume of services provided, the court considers it necessary to recover from the defendant in favor of the plaintiff the costs of paying for the services of a representative in the amount of 50,000 tenge.

By virtue of Article 109 of the CPC, the court awards the party in whose favor the decision was made, on the other hand, all court costs incurred in the case, and therefore the costs of paying for the services of a representative in the amount of 50,000 tenge are to be recovered from the plaintiff in favor of the defendant.

Guided by Articles 223-226, 229 of the CPC, the court DECIDED: To refuse to satisfy the claim of JACQUES to the SCT for the recovery of the deposit amount. To collect from the JAC in favor of the School the costs of paying for the services of a representative of 50,000 (fifty thousand) tenge.

 

 

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