First of all, the parties agree on a specific third party in the contract.
1. If it has been agreed in the contract that the house will be transferred to a specific third party, and the third party has signed it, it means that the third party knows to whom the house will be transferred. At this time, if the seller does not cooperate with the transfer to a third party, then the seller breaches the contract and shall bear the liability for breach of contract. Xiamen (20 13) Jiminchuzi No.2430 and other judgments show this attitude.
2. If the transfer to a specific third party has been agreed in the contract, and the identity information of the third party is attached, but the third party has not signed it, but agreed to sign the contract with the seller afterwards. In this case, the rights and obligations of the original contract are generally transferred to a third party. If the seller does not cooperate with the transfer, it shall bear the liability for breach of contract that the contract cannot be continued.
Two, the two sides agreed in the contract can be transferred to the third party designated by the buyer, but there is no specific name.
This situation is controversial in judicial practice. Let's look at a precedent first.
20 13+ 13 On June 3rd, the defendant Liu Ying (on behalf of the defendant Yan Feng) signed the Intermediary Agreement for the Purchase and Sale of Real Estate with the plaintiff, stipulating that the defendant Yan Feng would sell the above-mentioned real estate to the plaintiff. As stipulated in the contract, the plaintiff has the right to designate a third party to transfer ownership.
We believe that the house sales agency agreement signed by the plaintiff and the defendant is legal and valid, in which "the plaintiff has the right to designate a third person to transfer the ownership" is the true intention of both parties, which is not illegal and is also an effective clause. On April 26, 2008, the defendant refused to transfer the disputed house to the person designated by the plaintiff under the condition that the plaintiff had the corresponding performance ability. Based on this, it should be considered that the defendant has constituted a fundamental breach of contract. -Xiamen University (20 13) Simin Zi Chu No.6011
After that, both parties appealed, and Xiamen Intermediate People's Court made (20 13) Xia Min ZZ No.3322, which upheld the original judgment.
In this case, when signing the contract, the buyer and the seller agreed that the plaintiff had the right to assign the name of the third party, but did not specify the specific name of the third party. After that, determine the specific third party designated for transfer.
The court held that the agreement was valid, and the seller refused to perform the transfer to the person designated by the buyer, which constituted a fundamental breach of contract and should bear the liability for breach of contract. The reasons for supporting this case are Xiamen (20 15) HaiminchuziNo. 1585 and (20 16) Min0205 Minchu2564.
But in another case, there was a different verdict.
We believe that the content of the modified contract is to change the house purchased by the plaintiff to be resold by the plaintiff. The purpose of this agreement is to reduce the deed tax of a transaction and harm the national interests, so the modification of the contract is invalid. -Shaminchuzino, Sanming City (2015). 1543
In this case, the agreement on the transfer of ownership by a third party was directly deemed invalid, based on the clause of "Malicious collusion harms the interests of the state, the collective or the third party" in Article 52 (2) of the Contract Law.
The above are some court cases, and there is no unified view in judicial practice.
(a) if this situation is identified as "malicious collusion, damage to the interests of the state, the collective or the third party", it is too direct.
Is there malicious collusion between the parties? It is inevitable to put the cart before the horse by simply "harming the national interests" and in turn identifying the parties as "malicious collusion".
1. If the parties pay taxes afterwards to make up for the damage of "national interests", is the contract valid or invalid? Legal invalidity is definitely invalid-that is, it cannot be transferred from invalid state to effective state. Since paying taxes does not change the contract from invalid to effective, if the contract is directly deemed invalid, it is equivalent to encouraging the parties not to pay taxes.
2. If the contract is valid, the tax authorities shall investigate the tax liability, which can protect the national interests on the one hand, and does not violate the spirit of encouraging transactions in the contract law on the other.
(2) In this case, in principle, the seller shall be liable for breach of contract.
1. The house sales contract has clearly stipulated that the buyer can transfer the house to a third party. When signing the contract, the seller shall accurately understand the meaning of this agreement and bear the obligations arising from signing the contract.
2. The seller has obtained the house payment by selling the house, which has reached the contractual purpose of buying and selling the house. The ownership of the house sold does not completely affect the contract purpose of the seller to obtain the house payment.
3. Transfer the buyer to a qualified or unrestricted third party as the buyer within the time limit stipulated in this contract because the buyer does not have the qualification to purchase a house or is affected by a restricted loan order. If there is no justifiable reason, the seller shall agree.
4. If the seller has legitimate reasons, such as the buyer is qualified or unrestricted, nominally buying a house for himself, but actually buying a house for a third person who has an unfavorable relationship with the seller, in this case, the seller can refuse to sell the house, which should not be regarded as the seller's breach of contract. The unfavorable relationship can be a bad relationship with the seller or a desire to use the house to pay off debts.
5. After the seller knows that the buyer is unqualified or restricted, and the buyer can't find a third person who can buy a house under the contract name, then both parties can terminate the contract and not bear the liability for breach of contract. Because this agreement is the buyer's right, not obligation, the buyer can assign it to a third party, but it is not necessary.
Third, how should the contract be stipulated when the house is transferred to a third party?
Therefore, if the house is to be assigned to a third party, it is best to stipulate the specific name of the third party in the contract, so that if the seller does not cooperate with the transfer to the third party, the buyer can directly ask the seller to bear the corresponding liability for breach of contract according to this contract.
First, the nature of the agreement.
Paragraph 1 of Article 80 of the Contract Law stipulates: "If the creditor transfers its rights, it shall notify the debtor. Without notice, the assignment is invalid for the debtor. " In the house sales contract, the buyer's creditor's right to the seller requires the seller to transfer and hand over the house (to himself), and the buyer can transfer all or part of the creditor's right to a third party. The buyer's request to the seller to transfer the house to a third party in an agreed way can be regarded as the transfer of creditor's rights.
Second, the effectiveness of the agreement.
This agreement is legal and valid, because it does not violate the mandatory provisions of laws and administrative regulations, especially: (1) does not cover up illegal purposes in a legal form. If it does not constitute tax evasion, because the tax payable in the housing transaction will be paid in full. (2) "Avoiding the purchase restriction policy" will not cause the contract to be invalid. Because the main body of "law" is the National People's Congress and its Standing Committee, and the main body of "administrative regulations" is the State Council, and the local purchase restriction policy does not belong to "laws and administrative regulations", even if it violates or evades the purchase restriction policy, it will not lead to the invalidity of the contract.
Third, the impact of the agreement on the transaction.
The main impact of this agreement on the transaction is: 1, because the buyer is not qualified to buy a house or loses the qualification to buy a house during the transaction, the seller terminates the contract. Because even if the buyer does not have or loses the qualification to buy a house, as long as the buyer can find a qualified buyer, the contract can continue to be performed, and the seller has no right to terminate the contract. 2. It provides convenience for some real estate speculators and saves costs. Because real estate speculators can directly ask sellers to transfer their houses to their designated people, reducing transaction links, saving taxes and fees, and earning more house price difference.
Different sentences in the same case
Legal interpretation:
Buying a house under the name: refers to the situation that the owner of the house must have certain qualifications in order to avoid the requirements of laws or policies, or in order to transfer property and evade taxes and fees, he does not have the qualifications to buy a house or the investment of investors, and the buyer is inconvenient to register himself as the owner of the house.
Designated transfer to a third party: generally common in house sales contracts, the buyer explicitly agrees to register the house property in the name of a third party. This agreement is not limited to the case of buying a house under one's name, but can be applied to common house sales contracts. Whether it is an agreement to buy a house under the name or an agreement to clarify the transfer of ownership, the applicable legal norms are based on the principle of autonomy of contractual will.
Referee's score
In the Real Estate Sales Contract signed by the original defendant in this case, the agreement that "the seller agrees that the buyer has the right to designate (others) as the registrant of property rights" is a true expression of the intention of both parties, which does not violate the mandatory laws and regulations of the state and is legal and effective. Both parties shall perform their respective obligations in accordance with the contract.
Summary of case
According to the original report, on October 26th, 20 15 10, the original defendant signed a real estate sales contract with the help of a third party, stipulating that the plaintiff would buy the defendant's house in Shenzhen, so he requested the court to order the cancellation of the real estate sales contract signed by the original defendant, and ordered the defendant to pay the plaintiff a penalty of 700,000 yuan.
The defendant argued that the plaintiff had no purchasing qualification at all. Although the remarks in the real estate sales contract stipulate that "the seller agrees that the buyer has the right to designate (others) as the property registration", the defendant thinks that the agreement is not clear. The plaintiff sold the property for the purpose of real estate speculation. The defendant believes that the real estate sales contract involved is invalid, and the liquidated damages claimed by the plaintiff belong to illegal interests and should not be supported according to law, otherwise it will encourage real estate speculation and violate the spirit of judicial interpretation. On August 4th, 20 17, the Supreme People's Court issued "Several Opinions on Further Strengthening Financial Trial Work", which clearly stipulated: "Ensure the stable and healthy development of the real estate market according to law and prevent the financial risk transmission in the real estate market. Attach great importance to the impact of fluctuations in the real estate market on financial creditor's rights, properly handle relevant cases according to law, and effectively prevent the transmission and impact of potential risks in the real estate market on financial stability and financial security. Unify the referee criteria for evading the effectiveness of the national real estate purchase restriction policy contract, such as buying a house under the name, and the real estate transaction returns to the residential property. " According to the spirit of this opinion and Article 7 of the Contract Law, "When concluding and performing a contract, the parties shall abide by laws, administrative regulations and social ethics, and shall not disturb the social and economic order and harm the public interests", the real estate sales contract involved is not protected by law, and the liquidated damages claimed by the plaintiff are illegal interests and should not be supported according to law, otherwise it will encourage real estate speculation, and the plaintiff's request will not be protected according to law.
court decision
The court held that the "Real Estate Sales Contract" signed by the original defendant was a true expression of the intentions of both parties and did not violate the mandatory laws of the state. This is legal and valid, and both parties should fulfill their obligations according to the contract. Therefore, the judgment confirmed that the property sales contract involved was dissolved on March 28, 2065438+2008; The defendant paid the plaintiff Wu Yinde a penalty of175,000 yuan.
Reason of the referee
After the original defendant signed the contract with the plaintiff, the plaintiff paid a deposit of 654.38 million yuan as agreed in the contract, but the defendant failed to issue a notarization authorization to handle the foreclosure formalities within the time limit agreed in the contract, nor did he cooperate with the plaintiff to handle the fund supervision formalities as agreed in the contract. The defendant argued that the plaintiff was a professional real estate speculator, and the plaintiff asked the defendant to cooperate in transferring the property involved to the outsider Wu Moumou, but the defendant did not cooperate. After examination, the contract involved stipulated that the seller agreed that the buyer had the right to designate others as the property right registrant, so the defendant's defense reason could not be established. The defendant failed to issue a notarized authorization to handle the foreclosure formalities within the time limit stipulated in the contract, and refused to cooperate with the plaintiff to handle the fund supervision procedures, which constituted a breach of contract. The plaintiff has the right to demand the termination of the contract. Combined with the delivery time of the complaint, our hospital confirmed that the contract involved was dissolved on March 28th, 20th18th.
Applicable law
Articles 94, 97, 107 and 114 of the People's Republic of China (PRC) Contract Law and Article 64 of the People's Republic of China (PRC) Civil Procedure Law.
Different sentences in the same case
The buyer does not have the qualification to buy a house, and the agreement to transfer it to a third party undermines the national macro-control policy, and the real estate sales contract should be terminated by judgment. Under the purchase restriction policy, the house sales contract signed by buyers who do not have the qualification to purchase houses is legal and effective. However, because the contract is objectively difficult to perform and the purpose of the contract cannot be achieved, the contract should be terminated. It is difficult to get the court's support for the disputes over the terms of the house sales contract and the agreed transfer to the designated third party that the buyer does not have the qualification to buy a house.
Brief introduction of the case
Cheng is the owner of the property located at Room 128 1807, Bishan Road, Siming District, Xiamen. On August 23rd, 20 10, Cheng entrusted Ren Zhihua with the right to mortgage, lease and sell the above-mentioned property in the form of notarization.
On March 201July 13, Ren Zhihua signed a real estate agency agreement with Chen Jianhua in the name of Cheng: Cheng agreed to sell the above property to Chen Jianhua at a transaction price of 5.98 million yuan; Both parties promise to prepare all materials before April 20, 2007, 2065438, and go through the transaction registration at Fangtu Housing Management Bureau, and sign the purchase and sale contract of the stock house provided by Fangtu Housing Management Bureau.
The two sides also signed a supplementary agreement: Cheng agreed to go through the formalities of property right transfer registration or notarization, and the third party designated by Chen Jianhua was the transfer owner or notary trustee.
On the day when the agreement was signed, Chen Jianhua paid Ren Zhihua a a house purchase deposit of 500,000 yuan by transfer, and paid Ren Zhihua a a house purchase price of 2.2 million yuan through Yang Chunlin on April 20, 2065438.
Chen Jianhua stated that he had informed the other party when signing the contract that he wanted to transfer the property to his friend Yang Chunlin because he did not have the qualification to buy a house. The purpose of buying a house in Chen Jianhua is to transfer the house to a third person for the needs of children's schooling. The problem of children's schooling can be solved by leasing.
20 17 On April 24th, Chen Jianhua sent a text message to Cheng through an intermediary. Content: Because Cheng did not go through the transaction registration formalities at the State Bureau of Land and Housing Management before April 20, 20 17 as agreed, Chen Jianhua decided to terminate the sales agreement and demanded Cheng to return all the money received and bear corresponding legal responsibilities.
Xiamen Intermediate People's Court held that when Chen Jianhua signed the Agreement on the Purchase and Sale of Real Estate Agents, it was already the object of restricting purchases and loans under the housing policy. Chen Jianhua is not qualified to buy a house in Xiamen. In order to avoid the policy of restricting purchases and loans, he signed a real estate sale agreement with Cheng knowing that he could not handle the transfer, and then changed the third person designated by the buyer, Yang Chunlin, to the owner of the transfer. This behavior undermines the national real estate control policy and disrupts the social and economic order. The main responsibility for the non-performance of the real estate sales agreement lies in Chen Jianhua, but Cheng did not fulfill the necessary duty of care when signing the contract, and he also had certain responsibilities, and both parties should bear corresponding responsibilities. Accordingly, the real estate sales agreement signed by both parties is objectively difficult to perform and should be dissolved. Cheng should return the money collected to Chen Jianhua.
Comment and analysis
1. Since 20 10, the "purchase restriction order" has been issued from the central government to the local government. In the real estate transaction under the purchase restriction order, there have been many cases in which buyers are not qualified to buy houses and the contract stipulates that they will be transferred to a designated third party, causing disputes. The main reasons are as follows:
1. The buyer signed a sales contract before the policy was introduced, but after the policy was introduced, he was not qualified to buy a house and wanted to cancel the contract. The seller sued him for breach of contract.
2. In order to avoid the purchase restriction policy, the buyer agreed to transfer the ownership to the designated third party, and the seller refused to transfer the ownership for fear of the third party's credit information.
3. Before the transfer, the buyer estimated that the social security and individual tax could meet the purchase requirements, but could not transfer due to the estimation error or other factors.
4. In the name of buying a house, the real estate speculators directly transfer the house to the second-hand buyer by using the third-party transfer clause to avoid tax and earn the resale price difference. After the seller found out, he was dissatisfied with the resale of the house and refused to transfer the ownership.
2. The transfer period agreed in the contract has passed, but the buyer has not yet obtained the qualification to purchase the house. What is the validity of the house sales contract?
According to the relevant provisions of the Contract Law, housing sales contracts come into effect after being signed and sealed by the parties, but Article 52 of the Contract Law also stipulates that contracts that "violate the mandatory provisions of laws and administrative regulations" are invalid. Many people will inevitably think that the buyer's behavior clearly violates the government's purchase restriction order and the contract should be invalid.
In fact, the contract is legal and valid. The housing purchase restriction policy issued by the local government is a policy document to regulate the real estate market, not a law or administrative regulation. It does not belong to the situation that buyers violate the purchase restriction policy without the qualification to buy a house. Therefore, the house sales contract concluded under the real intention of both parties is legally established and effective even if the buyer does not have the qualification to purchase a house.
3. How will the judicial organ handle the dispute over the house sales contract without the qualification to purchase a house, and apply for continuing to perform the contract, and can the court support it?
According to the "Guiding Opinions of Xiamen Intermediate People's Court on Trial of Disputes over Housing Sales Contracts (I)", if the contract cannot be continued due to the purchase restriction policy, the purpose of the contract cannot be achieved due to reasons not attributable to both parties. If either party requests to terminate the contract on this basis, it shall support it, and neither party shall be liable for breach of contract. After the termination of the contract, the seller shall return the deposit or payment received to the buyer.
According to this, the statistics of such cases in Xiamen Intermediate People's Court are (20 18) Min 02 450, (20 18) Min 02 5953, (20 18) Min 02 3283 and (20 18) respectively. Its behavior of signing a house sale contract to avoid the policy of restricting purchases and loans undermined the national real estate regulation and control policy and disrupted the social and economic order. The contract is objectively difficult to perform and the purpose of the contract cannot be achieved. It is appropriate to terminate the contract and decide to terminate the contract.
It can be seen that the buyer's purchase qualification is an essential element for the contract to continue to be performed, and the house sales contract without purchase qualification is terminated because it is difficult to continue to perform. Therefore, it is difficult for either party to continue to fulfill their demands if the dispute over the house sales contract without the qualification to purchase a house is brought to court.
4. Why does the court think that the contract should be terminated?
Because the buyer does not have the qualification to buy a house and cannot complete the transfer, the legal relationship will be unstable for a long time. During the period when the transfer cannot be made, the house may be sealed up and enforced by another case, resulting in the breach of contract between the seller and the buyer; It may also lead to the seller not being able to buy a new house for a long time, missing the opportunity to buy a house at a low price and causing economic losses. And if the buyer has been unable to obtain the qualification to buy a house, the legal relationship will be unstable for a long time, and all kinds of transaction hidden dangers will be hidden. Therefore, the court generally thinks that the contract should be terminated for the disputes over the house sales contract in which the buyer does not have the qualification to purchase a house.
Verb (abbreviation of verb) After the termination of the house sales contract, can both parties sue the other party for breach of contract?
Article 97 of the Contract Law stipulates: after the contract is dissolved, if it has not been performed, the performance shall be terminated; If it has been performed, according to the performance and the nature of the contract, the parties may demand restitution and take other remedial measures, and have the right to demand compensation for losses.
I believe many people will think that the buyer is subjectively aware of the fact that he is not qualified to buy a house, and his behavior of still signing a house sales contract violates the principle of good faith and should bear the corresponding liability for breach of contract for the consequences of the termination of the contract.
However, in judicial practice, the court held that both the buyer and the seller had the obligation to examine the qualifications of the purchaser when buying a house, and the seller failed to fulfill his reasonable and prudent obligation, which led to the failure to perform the contract, and both parties were responsible. Unless there is sufficient evidence to prove that one party has obvious fault, it is usually decided that both parties should bear corresponding responsibilities, and it is generally not supported to ask the other party to bear the responsibility for breach of contract.
To this end, remind friends who are interested in buying and selling houses that they should pay attention to the following situations when signing a house sales contract:
1. When signing a house sales contract, the seller should carefully review the terms of the contract. For the contract terms assigned by the buyer to a third party, the possible transaction risks should be fully considered before deciding whether to agree to the agreement.
2. Before the house sales contract is signed, the buyer should ask the intermediary agency or the buyer to show the house ownership certificate and the search list issued by the housing management department to verify whether the counterpart of the contract is the owner of the house and the actual situation of the house. In the case that the seller only holds the house sales contract and sells the house, it is necessary to carefully consider whether he is willing to bear the potential transaction risk.
3. When signing the house sales contract, the buyer and the seller shall perform reasonable and prudent obligations for the buyer's house purchase qualification. If the seller signs a house sales contract with a buyer who is not qualified to buy a house, he will also bear corresponding responsibilities for the legal consequences of the termination of the contract because he has not fulfilled the necessary duty of care.
4. For the contract buyer who is not qualified to buy a house, he wants to use the contract terms assigned to a third party to earn the difference, evade taxes, or evade the policy of restricting loans and purchases. This kind of behavior may not only lead to the liability for breach of contract caused by the failure to complete the transaction, but also lead to the dispute over the ownership of the house caused by "buying a house under the pretext", or be punished accordingly for disturbing the market order and evading taxes.
mutually