Resolution No. 03/2026/NQ-HĐTP on deposits: 8 points businesses need to know

From 15 October 2026, courts at all levels apply Resolution No. 03/2026/NQ-HĐTP when resolving deposit disputes. The Resolution was issued by the Council of Judges of the Supreme People’s Court. It gives specific guidance on many practical questions: when deposit forfeiture applies, whether forfeiture can be combined with a contractual penalty, and which assets can be used as a deposit.

For businesses, deposits come up in real estate purchases, premises leases, purchases of goods and many other transactions. If your deposit agreement was drafted on the old understanding, the penalty clauses may not be upheld by the court as you expect.

Overview of Resolution No. 03/2026/NQ-HĐTP

1. Form of deposit: a separate contract or a clause both work

A deposit agreement is a civil transaction under Article 116 of the Civil Code. Its form follows Article 119 of the Civil Code. If another law requires a deposit to be made in writing, that requirement must be followed (Article 2 of the Resolution).

The parties can sign a separate deposit agreement. They can also put a deposit clause directly into the contract containing the secured obligation, for example a sale and purchase contract.

2. Validity of a deposit: two cases where the main contract cannot be signed

A deposit agreement is valid when it meets the conditions in Article 117 of the Civil Code (Article 3 of the Resolution). The Resolution sets out two cases in which the deposit agreement remains valid if those conditions are met:

• The main contract cannot be signed because its terms are unclear. For example, the parties agree a deposit to buy land but the area or price is not yet clear. One party refuses to sign and asks the court to declare the deposit agreement invalid. The deposit agreement is still valid if it meets the conditions in Article 117.
• The main contract would be invalid if signed at the time of the deposit. For example, the deposit recipient is not yet the registered holder of the land plot but undertakes to obtain the land use rights certificate within a set period. If the period ends without the certificate being issued, the recipient cannot use the argument that “the transfer contract would be invalid” to escape liability under the deposit.

In practice: a party that wants to pull out will find it hard to rely on the main contract being “unclear” or “not yet eligible” to invalidate the deposit.

3. Deposit assets: shares, bonds and digital assets recognised

Under Article 5 of the Resolution, deposit assets include money, precious metals, gemstones or other valuable items. The Resolution gives shares, bonds and digital assets as examples of other valuable items. Unless the law provides otherwise, a deposit asset must meet three conditions:

• It is not prohibited from or restricted in trading.
• It can be handed over to the deposit recipient to hold.
• Its value can be fixed as a specific sum of money at the time of the deposit.

Other points for businesses:

• Deposit value: may be higher than, equal to or lower than the value of the secured obligation, unless the law provides otherwise.
• Assets under joint undivided ownership: all joint owners must consent.
• Assets under joint ownership in shares: the depositor may only deposit their own share.
• Valuation: the monetary value of the deposit asset is agreed by the parties. If there is no agreement, the court determines the value at the time of the first-instance trial.

4. Deposit forfeiture: who pays, how much, and when it is waived

Article 6 of the Resolution is the part businesses should read most carefully.

When the parties have not agreed on forfeiture:

Forfeiture is capped. If the parties agree a forfeiture amount higher than the value of the contract secured, the court will only award an amount up to the value of the contract at the time of the first-instance trial.

The fault principle. Unless otherwise agreed, the party at fault for the contract not being entered into, not being performed or being invalid bears the forfeiture under Clause 2, Article 328 of the Civil Code. There is no forfeiture in the following cases:

• Both parties are at fault.
• Force majeure or an objective obstacle. Example given in the Resolution: the deposit recipient undertakes to complete the procedure for issuing a land use rights certificate within 3 months and files a proper application. The delay is caused by the competent state authority. This is an objective obstacle, and the recipient does not forfeit the deposit.
• The deposit only secured entry into the contract, and the contract was entered into. The breach arose later, or the contract was found to be invalid later. The dispute is then resolved under the rules on breach of contract or the consequences of an invalid contract.

5. Interest, damages and contractual penalties

6. Enforceability against third parties

The point at which a deposit becomes enforceable against third parties is determined under the law on security for the performance of obligations (Article 4 of the Resolution). Once it is enforceable against third parties, the deposit recipient keeps the right to reclaim the deposited asset in two cases, unless the law provides otherwise:

• The asset is transferred to someone else, for example by sale, gift, exchange or assignment.
• The asset is possessed, used or benefited from by someone else without a legal basis.

If one deposit asset secures several obligations, the order of priority for payment follows Article 308 of the Civil Code and other relevant laws.

7. Which court has jurisdiction?

8. Limitation periods

So a forfeiture claim is subject to a limitation period, while a claim to recover the deposited asset is not (Article 8 of the Resolution). Keep track of when a dispute arises so you do not lose the right to claim forfeiture.

Checklist: review your deposit agreements

Before signing or reusing a template deposit agreement, check these 8 questions:

• Does the contract state clearly whether the deposit secures entry into the contract, its performance, or both?
• Is the deposit asset prohibited from or restricted in trading? Has it been handed over to the deposit recipient?
• Is the monetary value of the deposit asset (especially shares or digital assets) clearly stated?
• If the deposit asset is under joint undivided ownership, have all joint owners consented?
• Does the forfeiture amount exceed the value of the contract secured?
• Does the contract provide for both forfeiture and a contractual penalty for the same breach?
• Is there a clause on objective obstacles and force majeure, especially for procedures that depend on state authorities?
• Is there a clause on returning the deposit and on when the obligation to return it arises?

If you are unsure about two or more answers, have a lawyer review the agreement before you sign.

Frequently asked questions

When does Resolution No. 03/2026/NQ-HĐTP take effect?

From 15 October 2026. It was adopted by the Council of Judges of the Supreme People’s Court on 18 August 2026.

Can a deposit agreement provide for both forfeiture and a contractual penalty?

The parties can agree both. However, in a dispute the court will only accept the forfeiture claim and will not accept the contractual penalty claim (Clause 6, Article 6 of the Resolution).

Can we claim both forfeiture and damages?

Yes. Where the parties have not agreed otherwise, the court considers and accepts both the forfeiture claim and the claim for damages (Clause 5, Article 6 of the Resolution).

Will an agreed forfeiture of several times the deposit be upheld?

The court accepts the agreed forfeiture, but not above the value of the contract secured at the time of the first-instance trial (Clause 2, Article 6 of the Resolution).

Can interest be charged on the deposit?

Yes, under Article 357 of the Civil Code, from the day after the obligation to return the deposit arises. No interest is charged on the forfeiture amount, unless the law provides otherwise or the parties agree otherwise.

Can digital assets be used as a deposit?

The Resolution gives digital assets as an example of other valuable items that can be used as a deposit. The asset must not be prohibited from or restricted in trading, must be capable of being handed over to the deposit recipient, and its value must be fixable in money at the time of the deposit.