The trading in the secondary, when the buyer signed a deposit agreement, delivery of the deposit, if the seller "had not yet signed a contract for the sale" as an excuse, not willing to sign a "contract for the sale of housing", the buyer how to safeguard their own rights and interests of «to carry out the" deposit Agreement, "signed and still continue to carry out" a contract for the sale housing "»
The court heard: housing prices rose, the seller does not sell
Both sides signed the "deposit agreement", agreed by the seller will name its 110 square meters of housing, 640,000 yuan to the price sold to the buyer. The two sides agreed to deposit 50,000 yuan, 450,000 yuan prepaid Fangkuan (including deposit), while the buyer to honor the deed after five days from the lending bank accounts directly included in the seller. If the buyer estoppel deposit is forfeited if the seller estoppel, double the return of the deposit. On that day, and the seller to the relevant information to the buyer, the buyer will be 450,000 yuan paid to the seller.
Five months later, the seller written notice to an intermediary company, please tell the buyer, "deposit agreement," a stay of execution, buyers and sellers need further consultations. Five days later, the buyer prosecution to the court, Su Cheng prices rose due to the seller wish to proceed without the property rights transfer procedure, and without authorization from the buyer Qiaomen lock for renovation and occupancy. Request the court to sentence the two sides continue to contract for the sale of second homes, and compensate for economic losses.
Focus of controversy: whether the deposit agreement is a contract for the sale
The buyer that the two sides signed the contract although the "deposit agreement," but the content is located, including the housing address, room, area, and other basic conditions, Fang Jiakuan, payment of time and form of payment, housing delivery, a contract for the sale of property rights transfer, and other housing Which should have the terms of its essence is a contract for the sale. Most of the parties to fulfil the contract obligations, also paid their 70 per cent of the Fangkuan, housing is their actual use.
The seller then argued that the two sides signed a "deposit agreement", agreed in the agreement in the housing property rights permit is obtained after the signing of a contract for the sale. But there are differences between views of both sides, has not signed a contract for the sale, the two sides sign a "deposit agreement" when the seller has not yet obtained the deed, and do not have the statutory conditions for the transfer of housing.
Court judgement: effective contract, the seller must Jiaofang
After the court that the "deposit agreement," although the name is the deposit contract, but this "deposit agreement" has been basically covers the main provisions of a contract for the sale, the two sides is the real intention of signing a contract for the sale, the seller is not yet achieved the property rights of housing permits, That agreement called the name of the deposit. Apart from the buyer's deposit, but also paid the most of the purchase, the seller also to the use of housing delivery to the buyer. The two sides carry out the actual content of the deposit beyond the scope of the contract, involving a contract for the sale of the rights and obligations. Then decides that the "deposit agreement" is the nature of the contract for the sale, the seller has made housing property certificate, the contract for the sale effective, therefore the first-instance judgement to Jiaofang seller to the buyer.
Counsel Comments: Contract not only look at the nature of the name
Lawyers believe that in real life, look at the nature of the contract not only see the name of the contract, the contract should be based on the specific content and purpose of combining the two sides signed, the actual implementation of integrated be identified. From this case we can see that the name is the deposit agreement, but the contents include not only the deposit amount, the date of payment of deposit and other deposit the contents of the contract also includes the delivery of housing, Fangkuan dates and payment methods, such as transfer of ownership of a contract for the sale of property rights Relevant content, in addition, the "deposit agreement," although it agreed the two sides can break the responsibility for breach of contract provisions, but the contract can continue to perform under the circumstances, the seller has no right as a breach of the provisions of applicable requirements of the initiative, to assume responsibility for the lower default To achieve the objective of breach of contract. Legal provisions of the contract for the sale of the two sides should be based on the principle of good faith to perform the contract.
The court heard: housing prices rose, the seller does not sell
Both sides signed the "deposit agreement", agreed by the seller will name its 110 square meters of housing, 640,000 yuan to the price sold to the buyer. The two sides agreed to deposit 50,000 yuan, 450,000 yuan prepaid Fangkuan (including deposit), while the buyer to honor the deed after five days from the lending bank accounts directly included in the seller. If the buyer estoppel deposit is forfeited if the seller estoppel, double the return of the deposit. On that day, and the seller to the relevant information to the buyer, the buyer will be 450,000 yuan paid to the seller.
Five months later, the seller written notice to an intermediary company, please tell the buyer, "deposit agreement," a stay of execution, buyers and sellers need further consultations. Five days later, the buyer prosecution to the court, Su Cheng prices rose due to the seller wish to proceed without the property rights transfer procedure, and without authorization from the buyer Qiaomen lock for renovation and occupancy. Request the court to sentence the two sides continue to contract for the sale of second homes, and compensate for economic losses.
Focus of controversy: whether the deposit agreement is a contract for the sale
The buyer that the two sides signed the contract although the "deposit agreement," but the content is located, including the housing address, room, area, and other basic conditions, Fang Jiakuan, payment of time and form of payment, housing delivery, a contract for the sale of property rights transfer, and other housing Which should have the terms of its essence is a contract for the sale. Most of the parties to fulfil the contract obligations, also paid their 70 per cent of the Fangkuan, housing is their actual use.
The seller then argued that the two sides signed a "deposit agreement", agreed in the agreement in the housing property rights permit is obtained after the signing of a contract for the sale. But there are differences between views of both sides, has not signed a contract for the sale, the two sides sign a "deposit agreement" when the seller has not yet obtained the deed, and do not have the statutory conditions for the transfer of housing.
Court judgement: effective contract, the seller must Jiaofang
After the court that the "deposit agreement," although the name is the deposit contract, but this "deposit agreement" has been basically covers the main provisions of a contract for the sale, the two sides is the real intention of signing a contract for the sale, the seller is not yet achieved the property rights of housing permits, That agreement called the name of the deposit. Apart from the buyer's deposit, but also paid the most of the purchase, the seller also to the use of housing delivery to the buyer. The two sides carry out the actual content of the deposit beyond the scope of the contract, involving a contract for the sale of the rights and obligations. Then decides that the "deposit agreement" is the nature of the contract for the sale, the seller has made housing property certificate, the contract for the sale effective, therefore the first-instance judgement to Jiaofang seller to the buyer.
Counsel Comments: Contract not only look at the nature of the name
Lawyers believe that in real life, look at the nature of the contract not only see the name of the contract, the contract should be based on the specific content and purpose of combining the two sides signed, the actual implementation of integrated be identified. From this case we can see that the name is the deposit agreement, but the contents include not only the deposit amount, the date of payment of deposit and other deposit the contents of the contract also includes the delivery of housing, Fangkuan dates and payment methods, such as transfer of ownership of a contract for the sale of property rights Relevant content, in addition, the "deposit agreement," although it agreed the two sides can break the responsibility for breach of contract provisions, but the contract can continue to perform under the circumstances, the seller has no right as a breach of the provisions of applicable requirements of the initiative, to assume responsibility for the lower default To achieve the objective of breach of contract. Legal provisions of the contract for the sale of the two sides should be based on the principle of good faith to perform the contract.
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