Main Issues

In the case where the buyer has agreed to pay the penalty for the amount equivalent to the down payment in a sales contract, but the buyer has violated the contract by preparing a cash custody certificate for the amount equivalent to the down payment to the seller and delivering it to the seller (affirmative)

Summary of Judgment

In the sales contract, when the buyer pays the down payment, and if the buyer violates the contract, he/she shall be compensated for the amount thereof, and if the buyer violates the contract, he/she shall not demand the return thereof by waiver. However, in cases where the buyer pays the down payment once he/she has failed to prepare the down payment at the time and receives it and delivers to the seller a certificate of cash custody of the amount equivalent to the down payment, the seller and the buyer shall be deemed to have agreed to pay the down payment. Therefore, if the buyer has violated the contract, he/she is liable to pay the agreed penalty

[Reference Provisions]

Articles 398 and 565 of the Civil Act

Reference Cases

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff, Appellee

Plaintiff

Defendant, Appellant

Defendant (Attorney Su-soo et al., Counsel for defendant-appellant)

Judgment of the lower court

Seoul District Court Decision 99Na6226 delivered on July 14, 1999

Text

The appeal is dismissed. The costs of appeal are assessed against the defendant.

Reasons

According to the facts acknowledged by the court of first instance by the court below, in purchasing the apartment house of this case from the plaintiff on June 6, 1998, the defendant shall be paid KRW 3.6 million as down payment when the plaintiff violated the contract, and if the defendant violated the contract, he shall be compensated for the amount, and if the defendant violated the contract, he shall not demand the return of the down payment. However, the defendant shall actually pay the down payment at around 10:00 of the same month when the bank resumes its business after the annual leave was closed due to the relationship which was not prepared at the time, and he shall be deemed to have received and kept the down payment, and he shall prepare a cash storage certificate of the amount equivalent to the down payment and deliver it to the plaintiff until the time. Accordingly, if the facts are the same, if the defendant violated the contract, he shall be deemed to have agreed on the penalty equivalent to the down payment, even if the defendant did not actually pay the down payment, it shall be justified, and there is no error in the misapprehension of legal principles as alleged in the grounds of appeal.