89
=S=> BGB 338 If the performance owed by the giver of the earnest becomes impossible due to a circumstance for which he is responsible , or if the giver of the earnest is responsible for the cancellation of the contract entered into , the receiver of the earnest may retain it . If the receiver demands damages for non-performance , the earnest must , in case of doubt , be credited against it , or if this cannot occur , must be returned when damages are paid .
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