[Key words] subscription / commercial housing sales / default / double / deposit
[introduction to the lawyer of this case] men Chunxiao is a practicing lawyer of Liaoning Tongfang law firm. He is good at perennial legal advisory work in banks and financial enterprises. Familiar with legal counsel and litigation work in the field of construction engineering, and have legal service experience in government departments. Good at civil and commercial economic disputes, contract disputes, labor, personnel, industrial injury disputes, real estate disputes, traffic accidents, medical and other legal services.
[judgment points] whether the commercial housing subscription agreement signed by the plaintiff and the defendant is legal and effective, whether it constitutes a breach of contract, and whether it complies with the provisions of the law on the double return of the deposit
[basic case] on XX, XX, the plaintiff and the defendant signed the commercial housing subscription agreement. The subscription agreement agreed that the plaintiff would subscribe for the house in Dalian developed by the defendant. The agreement agreed on the specific floor number, predicted area, unit price and total price of the subject house, and agreed to pay in full. The plaintiff paid the deposit on the same day and the defendant issued a receipt.
After the signing of the subscription agreement, the plaintiff and the defendant have not been able to sign the formal commercial housing sales contract, and the project has not been completed for a long time, so the conditions for the sale of commercial housing cannot be met.
Based on the above facts, the plaintiff believes that the exercise of rights and performance of obligations should follow the principle of good faith, and the defendant's behavior violates the spirit of the contract. The defendant failed to abide by the contract and the basic commercial principles of honesty and trustworthiness, which was a breach of contract and should be liable for breach of contract.
[judgment result] i. the commercial house subscription agreement signed by the plaintiff and the defendant was rescinded;
2、 The defendant shall return double the deposit to the plaintiff within 15 days from the effective date of this judgment.
[reason for judgment] the court held that the commercial housing subscription agreement signed by the plaintiff and the defendant was legal and effective, and both parties should abide by it. According to Article 94 of the contract law, if one of the parties expressly expresses or indicates by its own behavior that it will not perform its main obligations, the other party may terminate the contract. The defendant violated the provisions of the subscription agreement by reselling the house subscribed by the plaintiff to others without sending the notice of payment to the plaintiff, and indicated by his own behavior that he would no longer perform the contract. In this case, the plaintiff filed a lawsuit to terminate the contract, which was supported by the court. At the same time, according to Article 115 of the contract law, if the party receiving the deposit fails to perform the agreed obligations, it shall return the deposit in double. At the same time, the contract also clearly stipulates: "during the period of this subscription agreement, if Party A sells the house to a third party without Party B's consent, Party B has the right to require Party A to return the payment and double the deposit.
[relevant laws] Article 94 of the contract law of the people's Republic of China: in case of any of the following circumstances, the parties may terminate the contract: (1) the purpose of the contract cannot be realized due to force majeure; （2） Prior to the expiration of the term of performance, one of the parties clearly indicated or indicated by its own behavior that it would not perform its main obligations; （3） One of the parties delays in performing its main obligations and fails to perform within a reasonable period after being urged to do so; （4） Either party delays in performing its obligations or commits other acts of breach of contract, which makes it impossible to realize the purpose of the contract; （5） Other circumstances stipulated by law. Article 107 If a party liable for breach of contract fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the contract, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. Article 115 Deposit
The parties may, in accordance with the guarantee law of the people's Republic of China, agree that one party shall pay a deposit to the other party as a guarantee for the creditor's rights. After the debtor performs his obligations, the deposit shall be set off against the price or recovered. If the party paying the deposit fails to perform the agreed obligations, it has no right to demand the return of the deposit; If the party receiving the deposit fails to perform the agreed obligations, it shall return the deposit in double.
[lawyer's opinion] this case belongs to a common commercial housing pre-sale contract dispute, and similar disputes are very likely to occur in commercial housing trading activities. In fact, the purchase agreement is fundamentally different from the formal commercial housing sales contract. The subscription is an advance contract of the commercial housing sales contract, and an agreement signed between equal subjects to establish the civil rights and obligations of the commercial housing sales. However, the subscription form is also an independent contract. If the subscription form is directly recognized as a commercial housing sales contract, the developer may attach various unreasonable conditions to force the buyer to perform the "sales contract" or bear the liability for breach of contract, which will seriously damage the interests of the buyer, while mastering the advantageous information. The validity of the subscription form must be different from the validity of this agreement, that is, the commercial housing sales contract.
The difficulty of this case lies in the evidence collection in the process of practice. Since the plaintiff and the defendant signed the subscription agreement, and the house was not completed at that time, and the pre-sale permit was not obtained, the house information filled in the agreement was only the building number information prepared by the developer, which was far from the actual address recorded by the real estate department. Therefore, it is very difficult to determine the current state of the house involved in the case in the practice process, which requires lawyers to accurately grasp the relevant information based on their rich experience, This also shows that it is very necessary to build a professional team of lawyers.
For litigation cases, the most important thing for both the plaintiff and the defendant to argue in court is to take the evidence as the support, to ensure that the chain of evidence is tight and complete, and to be familiar with the legal provisions and be justified. Only in this way can the court recognize and support them.