Article 41Earnest money preservation
第四十一条（手付金等の保全）
A Real Estate Broker must not receive an earnest money t, etc., (money transferred as the price in whole or in part, and money transferred as an earnest money or under a different name where said money is allocated to the price and is paid on or after the date of the conclusion of the agreement and prior to the delivery of said Building Lot or building; the same applies hereinafter) from a buyer concerning the sale of a Building Lot or building pertaining to construction work relating to the development of the Building Lot or construction of the building prior to the completion of said construction work where they are the seller, unless measures as listed in either of the following items are first taken. Provided, however, that this is not to apply if the transfer of ownership of said Building Lot or building to the buyer has been registered; if the buyer has carried out a registration of ownership; or if the amount of the earnest money, etc., that said Real Estate Broker intends to receive (the amount obtained by adding the amount of earnest money, etc., that has already been received, if applicable) is no more than five-one hundredths of the amount of the price and no more than the amount as specified by Cabinet Order in consideration of the actual conditions of transactions undertaken by Real Estate Brokers and the protection of the interests of counterparties to said transactions.
宅地建物取引業者は、宅地の造成又は建築に関する工事の完了前において行う当該工事に係る宅地又は建物の売買で自ら売主となるものに関しては、次の各号のいずれかに掲げる措置を講じた後でなければ、買主から手付金等（代金の全部又は一部として授受される金銭及び手付金その他の名義をもつて授受される金銭で代金に充当されるものであつて、契約の締結の日以後当該宅地又は建物の引渡し前に支払われるものをいう。以下同じ。）を受領してはならない。ただし、当該宅地若しくは建物について買主への所有権移転の登記がされたとき、買主が所有権の登記をしたとき、又は当該宅地建物取引業者が受領しようとする手付金等の額（既に受領した手付金等があるときは、その額を加えた額）が代金の額の百分の五以下であり、かつ、宅地建物取引業者の取引の実情及びその取引の相手方の利益の保護を考慮して政令で定める額以下であるときは、この限りでない。
An agreement is concluded with a bank or a financial institution as specified by Cabinet Order or a person as designated by the Minister of Land, Infrastructure, Transport and Tourism (hereinafter referred to in this article as "Bank") for delegation whereby, if the obligation to refund the earnest money, etc., received by the Real Estate Broker is assumed by the Real Estate Broker, said Bank is to jointly and severally guarantee said obligation (hereinafter referred to as "Indemnity Agreement") and a document promising that said Bank is to jointly and severally guarantee the obligation to refund the earnest money, etc., pursuant to said Indemnity Agreement is issued to the buyer;
A warranty insurance agreement is concluded with an insurance provider (a person engaged in the insurance business who has obtained a license as provided for in Article 3, paragraph (1), or Article 185, paragraph (1) of the Insurance Business Act (Act No. 105 of 1995); same hereinafter in this item) that promises that the portion of losses caused to the buyer as a result of the non-performance of the obligation to refund the earnest money etc. received by the Real Estate Broker equals the amount of the earnest money etc. pertaining to said non-performance of refund obligation is at the minimum, covered by said insurance provider and an insurance certificate or document acceptable in lieu thereof, issued to the buyer.
An Indemnity Agreement under item (i) of the preceding paragraph must stipulate that an insurance agreement satisfying the requirements as listed in the following items are concluded by the Bank with the buyer:
the guarantee obligation constitutes, at the very least, the guaranteeing of the obligation to refund the earnest money, etc., received by the Real Estate Broker in full;
the obligation to refund the earnest money, etc., that should be guaranteed, is at least in effect until the delivery of the Building Lot or building pertaining to the down payment, etc., received by the Real Estate Broker.
The warranty insurance agreement under paragraph (1), item (ii), must satisfy the requirements listed in the following items:
第一項第二号の規定による保証保険契約は、次の各号に掲げる要件に適合するものでなければならない。
the insurance amount is an amount equivalent to the amount of the earnest money, etc., that the Real Estate Broker intends to receive (the amount obtained by adding the amount of earnest money, etc., that has already been received, if applicable);
the insurance period is, at the minimum, the period from the conclusion of the warranty insurance agreement to the delivery of the Building Lot, or building pertaining to the earnest money, etc., received by the Real Estate Broker.
If a Real Estate Broker sells a Building Lot or building as prescribed in paragraph (1) (excluding any case, falling under the proviso of the same paragraph) and does not take measures as listed in item (i) or (ii) of the same paragraph, the buyer may choose to forgo payment of an earnest money, etc.
A Real Estate Broker may, pursuant to the provisions of Cabinet Order and after obtaining the consent of the buyer as prescribed in paragraph (1), take, in lieu of a measure as listed in either of the following items, a measure by electronic or magnetic means that is specified by Order of the Ministry of Land, Infrastructure, Transport and Tourism and Cabinet Office Order as corresponding to a measure as listed in either of said items. In such a case, the person who carries out said measure as specified by the Order of the Ministry of Land, Infrastructure, Transport and Tourism and Cabinet Office Order is deemed to have carried out a measure as listed in either of said items.
a measure as listed in paragraph (1), item (i), constituting a measure for issuing a document promising that said Bank is to jointly and severally guarantee the obligation to refund the earnest money, etc., pursuant to said Indemnity Agreement issued to the buyer;
a measure as listed in paragraph (1), item (ii), constituting a measure for issuing a document in lieu of an insurance certificate to the buyer.
第一項第二号に掲げる措置のうち、保険証券に代わるべき書面を買主に交付する措置
第四十一条の二
A Real Estate Broker must not receive an earnest money, etc., from a buyer concerning the sale of a Building Lot or building for which the Real Estate Broker is the seller (excluding any sale as prescribed in paragraph (1) of the preceding article) unless measures as listed in item (i) or (ii) of the same paragraph or the measures as listed in both of the following items are taken. Provided, however, that this does not apply if the transfer of ownership of said Building Lot or building to the buyer has been registered; if the buyer has carried out a registration of ownership; or if the amount of the earnest money, etc., that said Real Estate Broker intends to receive (the amount obtained by adding the amount of earnest money, etc., that has already been received, if applicable) is no more than one-tenth of the amount of the price and no more than the amount as specified by Cabinet Order in consideration of the actual conditions of transactions undertaken by Real Estate Brokers and the protection of the interests of counterparties to said transactions.
宅地建物取引業者は、自ら売主となる宅地又は建物の売買（前条第一項に規定する売買を除く。）に関しては、同項第一号若しくは第二号に掲げる措置を講じた後又は次の各号に掲げる措置をいずれも講じた後でなければ、買主から手付金等を受領してはならない。ただし、当該宅地若しくは建物について買主への所有権移転の登記がされたとき、買主が所有権の登記をしたとき、又は当該宅地建物取引業者が受領しようとする手付金等の額（既に受領した手付金等があるときは、その額を加えた額）が代金の額の十分の一以下であり、かつ、宅地建物取引業者の取引の実情及びその取引の相手方の利益の保護を考慮して政令で定める額以下であるときは、この限りでない。
an agreement is concluded with a person designated by the Minister of Land, Infrastructure, Transport and Tourism (hereinafter referred to as "Designated Custodian") that promises that the Real Estate Broker will have said Designated Custodian receive said earnest money, etc., on behalf thereof and that said Designated Custodian will retain an amount of money equivalent to the amount of the earnest money, etc., received by said Real Estate Broker (hereinafter referred to as "Earnest Money Deposition Agreement") and a document attesting to said Earnest Money Deposition Agreement is issued to the buyer;
an agreement establishing a right of pledge over claims for the purpose of refunding trust money based on the Earnest Money Deposition Agreement is concluded with the buyer to secure claims for the purpose of refunding the earnest money, etc., to be held by the buyer against the Real Estate Broker (hereinafter referred to as "Pledge-Establishing Agreement"); a document attesting to said Pledge-Establishing Agreement is issued to the buyer; and the establishment of the right of pledge under said Pledge-Establishing Agreement is notified to the Designated Custodian with a certificate bearing the date of finalization under Article 467 of the Civil Code.
An Earnest Money Deposition Agreement under item (i) of the preceding paragraph must satisfy the requirements as listed in the following items:
the retained amount is an amount equivalent to the amount of the earnest money, etc., that the Real Estate Broker intends to receive (the amount obtained by adding the amount of earnest money, etc., that has already been received and that has not yet been retained by the Designated Custodian, if applicable);
the retention period is, at the minimum, the period from the receipt of the earnest money, etc., by the Designated Custodian on behalf of the Real Estate Broker to the delivery of the Building Lot or building pertaining to said earnest money, etc.
A Pledge-Establishing Agreement under paragraph (1), item (ii), must stipulate that the duration of the established right of pledge is, at the minimum the period from the establishment of said right of pledge to the delivery of the Building Lot or building pertaining to the earnest money, etc., received by the Real Estate Broker.
If a Real Estate Broker takes measures as listed in any of the items of paragraph (1) and has already received an earnest money, etc., the Real Estate Broker must deliver an amount that is equivalent to the amount of earnest money, etc., received by the Real Estate Broker (the amount obtained by deducting the amount already retained by the Designated Custodian, if applicable) to the Designated Custodian prior to payment of an earnest money, etc., by the buyer.
If a Real Estate Broker sells a Building Lot or building as prescribed in paragraph (1) (excluding any case falling under the proviso of the same paragraph) and does not take measures as listed in item (i) or (ii) of paragraph (1) of the preceding article, does not take measures as listed in any of the items of paragraph (1), or does not deliver money under the preceding paragraph, the buyer may choose to forgo payment of an earnest money, etc.
A Real Estate Broker may, pursuant to the provisions of Cabinet Order and after obtaining the consent of the buyer as prescribed in paragraph (1), take, in lieu of a measure as listed in either of the following items, a measure by electronic or magnetic means that is specified by Order of the Ministry of Land, Infrastructure, Transport and Tourism and Cabinet Office Order as corresponding to a measure as listed in either of said items. In such a case, the person who carries out said measure as specified by the Order of the Ministry of Land, Infrastructure, Transport and Tourism and Cabinet Office Order is deemed to have carried out a measure as listed in either of said items.
a measure as listed in paragraph (1), item (i), constituting a measure for issuing a document attesting to said Earnest Money Deposition Agreement to the buyer;
a measure as listed in paragraph (1), item (ii), constituting a measure for issuing a document attesting to said Pledge-Establishing Agreement to the buyer.
Article 42Restrictions on canceling an installment sales agreement for a Building Lot or building
第四十二条（宅地又は建物の割賦販売の契約の解除等の制限）
If the obligation to pay installments under an installment sales agreement for a Building Lot or building for which a Real Estate Broker is the seller is not performed, the Real Estate Broker is to provide a written demand for payment to be made within a prescribed reasonable period of time of no less than thirty days and may not cancel the agreement on grounds that the payment of an installment is late or demand payment of an installment that is not yet due unless said obligation is not performed within said period.
Any special provision that contravenes a provision of the preceding paragraph is hereby invalidated.
前項の規定に反する特約は、無効とする。