The commercial housing subscription book is an instrument signed between the seller and the buyer of the commercial house before signing the pre-sale contract for the commercial housing or the existing housing sales contract for the commercial housing. It is a preliminary confirmation of the matters related to the transaction of the two parties. In the process of buying and selling commercial housing, after signing the commercial housing subscription book and paying the deposit, the disputes caused by the failure to sign a formal commercial housing sales contract are not uncommon. After the deposit is delivered, whether the purchaser must accept the developer’s format contract as scheduled, otherwise it will be necessary. What is the risk of losing the deposit?
In this paper, the author will analyze the above-mentioned problems in conjunction with the case of the Supreme People's Court and the Interpretation of the Supreme People's Court on Several Issues Concerning the Applicable Laws for the Trial of Commercial Housing Contract Disputes, for your reference.
[Basic facts of the case]
On April 18, 2004, Ms. Dai signed a “Order Agreement” with Huaxin Company. The agreement stipulated that: Ms. Dai paid a deposit of 50,000 yuan to order a set of houses developed by Huaxin Company (unit price, area, location determination), wearing If the woman chooses to abandon the acquired property purchase right before the signing date notified by Huaxin Company, or fails to sign the contract, the deposit of 50,000 yuan will not be refunded; if Huaxin Company resells the house to others before the signing date, it should double to Ms. Dai. Return the deposit. When Rihua New Company issued a receipt, it stated that it received a deposit of 50,000 yuan from Ms. Dai and Qiu (Mrs. Dai) and notified Ms. Dai to sign a pre-sale contract for official commercial housing at Huaxin Company on April 25.
On April 25, Ms. Dai went to Huaxin Company for consultation, but did not sign a pre-sale contract for commercial housing on the same day.
On May 7, Ms. Dai submitted a written opinion to Huaxin Company, which stated: “When I signed a contract with Huaxin Company on May 7, 2004, I requested that the decoration standard of the purchased house be consistent with the model house, and delete the contract annex II. The 'model house is for reference only, Huaxin Company reserves the right of final interpretation. Huaxin Company can not give a clear answer, and it needs to sign another day.” Liao Qing, deputy manager of sales department of Huaxin Company, stated in the written opinion: “The customer Comments have been received."
On May 9 of the same year, Huaxin Company informed Ms. Dai that because she had not signed a pre-sale contract for commercial housing with Huaxin Company on April 25, she had violated the agreement of the subscription agreement and confiscated the deposit under the original agreement. After the two sides failed to negotiate, Ms. Dai sued.
[court opinion]
The court of first instance held that Ms. Dai claimed that her agreement with Huaxin Company on April 25 to change the signing date to May 7 had no relevant basis. In view of the fact that Ms. Dai did not sign a contract with Huaxin Company on April 25, it was a breach of contract. There is no right to request Huaxin Company to return the deposit, and dismissed Ms. Dai’s claim.
Ms. Dai refused to appeal.
The court of second instance held that the two parties had no objection to the fact that Ms. Dai had negotiated with Huaxin Company on April 25, and this case proved that Ms. Dai’s performance of observing the contract as scheduled was different from the expiration of not signing the contract. Ms. Dai’s written explanation on May 7th proves that she has no clear indication of the refusal to sign the pre-sale contract for commercial housing, and her willingness to negotiate is very strong. In view of the inconsistency between the two parties on the content of the negotiation, there is no evidence to prove that it should be presumed that the negotiation has not been completed, and that no party has breached the contract without cause. In summary, the court of second instance revoked the judgment of the first instance and changed the judgment of Huaxin Company to return the deposit of Ms. Dai 50,000.
[Lawyer analysis]
The legal status of both parties to the contract is equal. Both parties should always follow the principles of fairness and good faith in the process of signing and performing contracts. In contrast to the pre-sale contract for commercial housing, the subscription agreement is an appointment contract made prior to the conclusion of the contract. The purpose of entering into an appointment contract is to make certain clauses of the contract before the conclusion of the contract, to fix the unanimous expression of the parties in the form of contract terms, and to stipulate other clauses for subsequent negotiations until the contract is concluded. The meaning of the appointment contract is to continue the consultation under the principle of fairness and good faith, and finally to establish a formal and complete terms of the contract. Therefore, in the ongoing consultations, if one party violates the principle of fairness and good faith, or denies the terms of the appointment in the appointment contract, or makes unreasonable conditions that the other party cannot accept, or refuses to continue negotiations to conclude the agreement, it constitutes a The breach of contract of the appointment contract shall be subject to the liability for breach of contract as stipulated in the appointment contract. On the other hand, if the two parties continue to conduct consultations under the principle of fairness and good faith, they are only unable to agree on other terms based on their own interests. If the agreement cannot be concluded, it is not attributable to the parties. Within the circumstances of the breach of contract. In this case, the appointment contract should be cancelled and the deposit paid should be refunded.
In this case, Huaxin Company, as the provider of the developer and the format contract, was satisfied with the purchaser of the model house and entered into an appointment contract with the model house, but it was listed as an annex in the pre-sale contract of the commercial house. The format clause of the contract interpretation right belongs to Huaxin Company, which is unfair to the buyers. It is reasonable for Ms. Dai to object to such unfair format clauses. If, as long as the buyer fails to sign a pre-sale contract for commercial housing, it will be deemed to be a breach of contract, and depriving him of the right to reasonable and equal consultation will place the buyer at either a loss deposit or be forced to accept all the format clauses. situation. This is obviously contrary to the principle of equality in contract law. Therefore, after the buyer has paid the deposit, the terms of the formal commercial house pre-sale contract still have the right to equal consultation as long as they are not stated in the subscription agreement. If the final negotiation fails, and no formal commercial house pre-sale contract is signed, it shall be deemed to be not attributable to the parties. According to Article 4 of the Interpretation of Several Issues Concerning the Application of Law in the Trial of Commercial Housing Contract Dispute Cases, the deposit shall be Return.
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