A contractual provision requiring payment of a further sum described as 'balance of the deposit' only upon the purchaser's default on an essential obligation is not a deposit but a penalty, because the obligation to pay arises only when the purchaser has demonstrated he is not in earnest — which is inconsistent with the character of earnest money. The label given by the parties to a payment is not determinative of whether it is a deposit; the nature of the obligation to make the payment is more important. Unauthorised alterations to a counterpart contract that do not change the meaning or effect of the contract are immaterial and do not prevent a binding contract from coming into existence.
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