1, it is necessary to distinguish the different legal nature of deposit and deposit. "Deposit" is a kind of guarantee, and the contract law, guarantee law and judicial interpretation of guarantee law all clearly stipulate the terms of deposit. The "deposit" is an advance payment, and generally double return is not applicable. According to the second paragraph of Article 22 of the Measures for the Administration of Commercial Housing Sales: "If the conditions for the sale of commercial housing are met, the fees charged by the real estate development enterprise shall be offset against the house price when concluding the contract for the sale of commercial housing; If the parties fail to conclude a commercial housing sales contract, the real estate development enterprise shall return the fees collected to the buyer. It can be seen that the "deposit" clause does not apply to double return.

2. If the buyer signs a formal commercial housing sales contract according to the contract, but cannot sign the commercial housing sales contract due to some terms, how to deal with the deposit? This is a common problem in judicial practice. However, the law does not clearly stipulate in this respect, only in Article 4 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Contract Disputes: "... If the commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the seller shall return the down payment to the buyer." However, the scope of "not attributable to both parties" here is not defined by law. Of course, the author believes that since the deposit in the subscription book belongs to the contract deposit, if the buyer signs the commercial housing sales contract according to the contract, even if the commercial housing sales contract cannot be signed due to some terms, it is not a breach of contract, and the deposit should not be collected and should be returned. However, if it is clear when signing the subscription contract that there are differences between the two parties due to the terms of the sales contract, the agreement on whether to return the deposit can be followed.

3. When signing the subscription contract, explain the main terms of the commercial housing sales contract as far as possible, so as to avoid differences on the terms of the contract in the future and affect the conclusion of the contract. In operation, the text of commercial housing pre-sale or sale contract can be attached to the order contract.

Second, the settlement of disputes over the purchase and sale of commercial housing

1. If a commercial housing sales contract cannot be concluded due to one party, it shall be handled in accordance with the provisions of the Deposit Law.

(1) Analysis of the situation of "failure to conclude a commercial housing sales contract due to one party".

It is generally believed that a valid contract should be actually performed, unless there is an inability to perform it. Some people think that "both parties should be required to conclude such a contract by appointment." If the non-main terms of the person are not listed in the appointment, and the two parties cannot reach an agreement, the court may consider the trading practice and make a judgment to replace the wishes of the parties. "

However, the content of the subscription book for the sale of commercial housing is only to sign a formal house sale contract. Although the signing behavior is bound by the validity of the appointment, after all, the conclusion of the contract is a process of autonomy of the parties, which not only embodies the principle of freedom of contract, but also because the subscription book for the sale of commercial housing is only an appointment. If the effectiveness of the appointment can force both parties to sign a contract, its effectiveness is actually no different from this contract. Article 4 of the Supreme People's Court's Interpretation on Disputes over Commercial Housing Sales Contracts does not give the subscription book for commercial housing sales the effect of concluding this contract, but thinks that "if a commercial housing sales contract cannot be concluded due to one party, it shall be handled in accordance with the provisions of the Deposit Law."

There are two situations in which the seller fails to obtain the qualification to sell the house: first, the transfer is prohibited because of the circumstances stipulated in Article 37 of the Urban Real Estate Management Law; Second, the pre-seller has not obtained the pre-sale permit. For the pre-sale of commercial housing, the seller (pre-seller) must have the pre-sale permit certificate before the pre-sale of commercial housing, otherwise it will have an impact on the effectiveness of the pre-sale contract (see the relevant discussion on the effectiveness of the pre-sale contract of commercial housing in this book for article 2 of the Supreme People's Court's Interpretation of Disputes over the Purchase and Sale of Commercial Housing). The seller requests to conclude a pre-sale contract within the specified time, and the buyer is unwilling to perform the obligation to conclude a pre-sale contract on the grounds that the seller has not yet obtained the pre-sale qualification and the pre-sale contract is invalid once it is concluded (the seller still cannot obtain the pre-sale permit and other pre-sale conditions before suing, and the pre-sale contract is invalid), which belongs to the situation that the house sales contract cannot be concluded due to the seller's reasons.

(2) the responsibility for violating the signing obligations determined in the commercial housing purchase and sale subscription book.

The binding force of the purchase and sale of commercial housing on the parties is manifested in the generation of the contracting obligations of the parties, that is, the obligations of the parties to negotiate for the conclusion of this contract in the future. The contract stipulates the obligations of the parties to a specific act, rather than the direct confirmation of the result of the act. However, there is no clear stipulation on the circumstances under which the parties may not sign a contract. In practice, the judge can make a comprehensive determination according to the specific circumstances of the parties' unwillingness to perform the signing obligations and the purpose of reviewing the parties' contracts.

If one party fails to conclude a contract for the sale of commercial housing due to violation of the signing obligations stipulated in the subscription book for the sale of commercial housing, shall it compensate the performance interest or the trust interest? Article 4 of the Supreme People's Court's Interpretation on Disputes over Commercial Housing Sales Contracts stipulates: "If the seller accepts the buyer's down payment as the guarantee for concluding the commercial housing sales contract by subscription, order and appointment, if the commercial housing sales contract cannot be concluded due to one party, it shall be handled in accordance with the provisions of the Deposit Law." Judging from the provisions of this article, the role of the deposit here is as an agreement between the parties on the amount of compensation for trust interests.

2. If the commercial housing sales contract cannot be signed due to reasons not attributable to both parties, the seller shall return the down payment to the buyer.

Paragraph 2 of Article 4 of the Supreme People's Court's Interpretation on Disputes over Commercial Housing Sales Contracts stipulates that if a commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the seller shall return the down payment to the buyer.

The nature of commercial housing sales subscription book

The so-called subscription book for the sale of commercial housing refers to the formal conclusion between the buyer and the seller of housing.

House sales contract

The documents signed before agree to sign a formal house sales contract in the future. The purpose is to make a preliminary confirmation of the relevant matters of the housing transaction between the two parties, often with a certain amount of deposit as the guarantee of the agreement. In practice, the terms of the subscription book for the sale of commercial housing are different, such as letter of intent, purchase order, purchase advance order, purchase agreement, etc., and appear in a large number of housing transactions such as pre-sale and long-term delivery of commercial housing.

Before the Supreme People's Court's Interpretation of Disputes over Commercial Housing Sales Contracts was published, there were always different opinions on the nature and effectiveness of the subscription book for commercial housing sales, especially on the pre-sale subscription book for commercial housing. Some people think that it is only a kind of contract intention expression, which is not binding on the parties; Some people think that if the seller (pre-seller) does not have the pre-sale conditions and has not obtained the pre-sale permit, his pre-sale qualification of commercial housing has not yet been obtained, and he cannot pre-sell according to relevant regulations. Buying in the form of commercial housing subscription book is a kind of pre-sale in disguise, and it is an evasion of the legal prohibition. Therefore, the subscription agreement is invalid; Some people think that the nature of the subscription book for the sale of commercial housing is an appointment contract, and its effectiveness should be recognized.

Article 4 of the Supreme People's Court's Interpretation on Disputes over Commercial Housing Sales Contracts stipulates: "If the seller accepts the buyer's deposit as the guarantee for concluding the commercial housing sales contract by subscription, order or appointment, if the commercial housing sales contract cannot be concluded due to one party's reasons, it shall be handled in accordance with the provisions of the Deposit Law; If the commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the seller shall return the deposit to the buyer. " This provision recognizes the effectiveness of subscription in the sale of commercial housing, with the focus on the application of the deposit clause. From its content analysis, the Interpretation recognizes the nature of the subscription book for the sale of commercial housing as an appointment.

1, about dating

The so-called appointment is an agreement to conclude a contract in the future, also known as a preparatory contract; The contract concluded after the performance of the agreement is this contract, which is also a formal contract. In other words, the obligation arising from the agreement between the two parties is to sign this agreement at the specified time. Therefore, appointment is a kind of temporary contract, which points to the act of signing such a contract itself and creates a contractual obligation between the parties.

Generally speaking, the composition of the appointment needs to examine two factors:

(1) Form of appointment. If the formal contract to be signed (this contract) stipulates in a mandatory form that "detour by appointment is not allowed. If the content of the appointment is already binding, whether it is necessary to conclude the main contract or not, the same formal terms as the main contract should be applied in the appointment to prevent evasion of legal investigation. "

(2) The certainty of reservations. "If the contractual obligations established by the appointment are not fully defined and the contents of the appointment cannot be explained, the obligations and the appointment itself will be invalid." For example, the agreement that "we are willing to set up a company together" between the parties is not sufficient, because the parties have not agreed on the purpose, place and legal form of the company, but only expressed their willingness to cooperate. This intention has no specific performance content, even if it is given the effect of performance, it can not be fulfilled in practice because the variables of performance are too large. But under what circumstances is the certainty of appointment enough? Under the condition that an appointment has all the terms of this contract, an appointment is called an appointment, which is actually this contract, so there is no need to distinguish an appointment from this contract. The balance between the two is often difficult to grasp, and judges need to distinguish them according to the different circumstances of each case.

2. The reservation nature of the pre-sale subscription book for commercial housing.

As far as the subscription book for the sale of commercial housing is concerned, from its purpose, the purpose of signing a contract is to make an agreement for the conclusion of a formal house sale contract in the future, which conforms to the basic characteristics of the appointment.

(1) The content of the commercial housing purchase and subscription must be definite. Judging from the contents of the subscription book for the sale of commercial housing, because the appointment must be definite, there should be the main contents of this contract to be concluded in the future. As an appointment for the sale of commercial housing, the contents of the subscription book for the sale of commercial housing generally include: the basic situation of both parties; Basic information of the house (including location, area, etc. ); Price calculation; Time limit for signing a formal house purchase contract. If the content of the subscription book for the sale of commercial housing is not certain enough, we can only think that the subscription book for the sale of commercial housing is only a letter of intent for the contract and has no legal binding force.

(2) Distinguish the essential elements between the subscription book for the sale of commercial housing and the contract for the sale of housing: the seller has accepted the purchase price as agreed. Article 5 of the Supreme People's Court's Interpretation of Disputes over Commercial Housing Sales Contracts stipulates: "The agreement on subscription, ordering and reservation of commercial housing has the main contents of the commercial housing sales contract stipulated in Article 16 of the Measures for the Administration of Commercial Housing Sales. If the seller accepts the purchase price as agreed, the agreement shall be deemed as a commercial housing sales contract." This provision breaks through the general theory that an agreement to have the contents of this contract constitutes this contract, and holds that even if the subscription for the sale of commercial housing has the contents of the sales contract (the agreed effect reaches this contract), the essence of the subscription for the sale of commercial housing cannot be considered as a sales contract. In order to directly identify the contract (appointment) signed in the name of the subscription book for the sale of commercial housing as a contract for the sale of housing, there must be the buyer's behavior of paying the purchase price and the seller's behavior of accepting the purchase price.