[Direct answer]In the Beijing area, whether the down payment can be refunded and the amount to be refunded by the seller of a second-hand house in the event of a breach of contract depends on the terms stated on the receipt and the reasons for the breach. According to Article 586 of the Civil Code of the People's Republic of China (effective January 1, 2021), if the party paying the down payment fails to perform the contractual obligations or performs them in a manner inconsistent with the agreement, resulting in the failure to achieve the contractual purpose, it shall not have the right to request the return of the down payment; Article 587 stipulates that if the party receiving the down payment fails to perform the contractual obligations or performs them in a manner inconsistent with the agreement, resulting in the failure to achieve the contractual purpose, it shall return the down payment in double. Therefore, if the seller raises the price or refuses to sell for their own reasons, they generally should refund the down payment in double; while if the contract cannot be continued due to the buyer's reasons, the down payment may not be refunded.Real estate transactions and construction projectsIn class services, distinguishing between the deposit and the booking fee is the first step.

I. Problem Background and Typical Scenarios

Common situations include: the seller regrets raising the price after signing the contract and refuses to fulfill it; the house is sealed up or subject to a mortgage, making it impossible to transfer ownership; the seller's co-owners do not agree to the sale; the agent withholds the deposit on the grounds of the unsuccessful intermediary service; or the buyer requests to terminate the contract due to the failure to obtain a loan. The focus of the dispute lies in the nature of the deposit, the attribution of the breach of contract, and whether there are fundamental obstacles to the transfer of the house.Business and contract disputes in enterprisesIn this type of business, the allocation logic of liability for breach of contract is consistent with this.

II. Key points of contention

First, whether the deposit is described as a "deposit" or an "advance payment" in the receipt or contract. Second, which party is responsible for the breach of contract. Third, whether it results in the failure to achieve the purpose of the contract. Fourth, whether the amount of the deposit exceeds 20% of the contract value. Fifth, whether there are exempting circumstances that are not attributable to the breaching party. Sixth, whether there is a connection between the handling of the agency fee and the deposit. Seventh, the expression of the litigation request and the calculation of the amount. For related procedural issues, you can consult professional institutions for further advice.

III. Professional analysis by Henglue Lawyers

Henglu Law Firm believes that the key to determining the liability for breach of contract lies in aligning the contractual provisions with the actual performance. Taking a dispute over a pre-sale contract for commercial housing handled by Tian Jiaoyan, a lawyer with our firm, as an example, the argumentation method used in this case is of direct reference value to disputes over down payments for second-hand houses: First, the core provisions of the contract and supplementary agreements are reviewed item by item to fix the delivery deadline, the starting point of the grace period, and the standard of the breach of contract penalty, clarifying the basis for calculating rights according to the agreement; Second, payment receipts, move-in notifications, and completion and acceptance filing materials are collected to form a verifiable chain of evidence, pinpointing the specific time periods and amounts of the claim; Third, responses are designed to counter the other party's claims of exemption from liability, pointing out that the relevant circumstances were already normalized before the contract was signed and were within the scope that the other party should have foreseen, thus cannot constitute an exemption from liability. At the same time, it emphasizes that the grace period should be strictly applied according to the agreement, and the other party should bear the liability for breach of contract after the grace period expires. The court ultimately adopted the lawyer's arguments and supported the claimant's claim for liability for breach of contract. 恒略律师认为，违约责任的判断关键在于把约定与履行事实逐项对齐。以本所田娇艳律师代理的一起商品房预售合同纠纷为例，其论证方法对二手房定金争议具有直接参考价值：第一步逐条梳理合同与补充协议的核心约定，固定交房期限、宽展期起算点与违约金标准，明确按约定计算权利的基础；第二步收集付款凭证、入住通知与竣工验收备案资料，形成可核验的证据链，把主张期间与金额落到具体节点上；第三步针对相对方提出的免责主张设计回应，指出相关事由在合同签订前已常态化、属于相对方应当预见的范围，因而不能构成免责，同时强调宽展期应按约定严格适用、届满后未履行即应承担违约责任。法院最终采纳代理意见，支持了权利人的违约责任主张。Business and contract disputes in enterprisesThe column provides a more comprehensive explanation of this type of argument. This approach is reflected in the deposit dispute: first, fix the deposit terms and amount; then, fix the facts of breach of contract and the time nodes; finally, respond to the other party's defense in a targeted manner. The request design in second-hand housing cases can refer to this structure.

IV. Practical suggestions and legal basis

Action suggestions: First, check whether the receipt or contract states "deposit" or "security deposit"; Second, verify whether the amount of the deposit exceeds 20% of the total contract price; Third, document the facts of the breach of contract, including records of reminders, the other party's explicit refusal to perform, and materials proving obstacles to the ownership of the property; Fourth, distinguish whether there are circumstances attributable to the party themselves, such as the failure to obtain a loan approval; Fifth, assess whether to claim breach of contract penalties or demand continued performance; Sixth, pay attention to the statute of limitations and jurisdiction clauses; and Seventh, retain communication records with the intermediary to clarify the allocation of fees. Legal basis: Articles 85, 86, and 87 of the Civil Code of the People's Republic of China (effective January 1, 2021), and Articles 57 and 563. For details on contract clause review, please refer to the relevant provisions.Business and contract disputes in enterprisesFor details regarding the litigation and preservation measures, please refer to the following document.Special services and other casesThe specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, the legal consequences of a deposit and an advance payment are completely different, so it's essential to check the written terms. Secondly, the portion exceeding 20% of the total contract price does not have the effect of a deposit. Thirdly, the prerequisite for double repayment are that the receiving party breaches the contract and the contractual purpose cannot be achieved. Fourthly, if the house itself is subject to seizure or there are objections from co-owners, repayment is usually more likely to gain support. Fifthly, when making a claim, it's necessary to provide a clear explanation of the reasons for the breach of contract and the time points involved. Sixthly, attention should be paid to the statute of limitations and jurisdiction agreements. Seventhly, no one is allowed to make any commitments regarding the outcome of the repayment.

VI. Frequently Asked Questions

Q1: If the seller breaches the contract, how much of the deposit can be refunded?

If the receipt or contract states that it is a deposit, and the seller fails to fulfill his contractual obligations due to his own reasons, resulting in the failure to achieve the purpose of the contract, according to Article 587 of the Civil Code, the seller shall return the deposit in double, that is, twice the amount of the deposit. If the receipt states that it is a down payment, it is usually regarded as a prepayment, and the buyer can only request a refund of the amount paid, but cannot claim a double refund. In practice, it is necessary to first check the written terms, which is often the starting point of disputes.

Q2: What's the difference between a deposit and an advance payment?

The deposit is subject to the penalty clause for deposits: if the payer breaches the contract and fails to perform, he shall not request a refund; if the recipient breaches the contract, he shall refund double the amount of the deposit, and the amount of the deposit shall not exceed 20% of the subject matter of the main contract. The deposit is generally regarded as a prepayment, without the statutory effect of double refund. In the event of a dispute, it can only be handled in accordance with the contractual relationship. In practice, there are also expressions such as "security deposit" and "intention deposit", which have different legal effects and need to be verified one by one.

Q3: What will happen if the down payment exceeds 20% of the house price?

The portion exceeding the limit does not generate the effect of a deposit. According to Article 586 of the Civil Code, the amount of the deposit shall not exceed 20% of the subject matter of the main contract, and the portion exceeding this limit shall not generate the effect of a deposit. In practice, if the actual amount paid exceeds 20%, the excess may be regarded as a prepayment, and the party may claim its return. However, the basis for applying the penalty for breach of contract is generally determined by the portion within the statutory limit. It is recommended to explicitly stipulate the amount of the deposit in the contract to avoid disputes over the basis in the future.

Q4: What should I do if the house is sealed off and the seller refuses to refund the deposit?

When a house is sealed up and cannot be transferred due to this, it usually means that the receiving party is unable to fulfill its contractual obligations. If this results in the failure to achieve the purpose of the contract, the buyer can claim a double refund of the deposit. In practice, it is necessary to first complete the real estate registration inquiry and obtain proof materials of the seizure or mortgage, and then urge the seller in writing and require a clear response. If the seller promises to unseal the house but fails to do so within the time limit, it can also be used as a supplementary basis for determining the seller's breach of contract.

Q5: The agency fee has been deducted. Can I ask for the refund of the deposit together with it?

This needs to be handled separately. The basis for claiming the deposit is the penalty clause for the deposit or the agreement in the sales contract; the brokerage fee depends on the actual performance of the intermediary services, and is usually handled in accordance with the terms of the intermediary contract. If the contract cannot be performed due to the seller's breach of contract, and the purpose of the intermediary's services has not been achieved, the corresponding fees may not be supported; but if the intermediary services have actually been completed, the request for compensation may be protected by the contract. It is recommended to list the two parts separately when making claims to avoid confusion.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Lawyers about specific situations.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Legal services for the purchase and sale of real estate·Attorney Tian Jiaoyan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.