Juridical summary: In commodity house business, the obligation making a room that develops business not just bureau be confined to makes the key, still need to produce corresponding proof document, sign a building to hand over sheet to wait. Agreed exceed the time limit hands in room and exceed the time limit to handle the responsibility of breach of contract of card respectively in the contract, but after agreeing development business assumed exceed the time limit to meet the duty of the room again at the same time, exceed the time limit does the responsibility of breach of contract of card not to grant to assume, should maintain this agreement to belong to the invalid format item that exempts development business to manage card obligation on time, of the multinomial beak a contract that develops business to still should assume exceed the time limit to hand in room, exceed the time limit to handle card according to contract agreement duty.
Party:
Accuser: Zhou Xianzhi, male, stay in Zhejiang to visit town of more than Yao.
Accuser: Yu Meifang, female, stay in Zhejiang to visit town of more than Yao.
The accused: Yu Yaozhong installs estate to develop limited company, abode ground: Zhejiang saves the city zone of city of more than Yao to get the better of Shanxi road.
Because accuser Zhou Xianzhi, Yu Meifang installs estate to develop limited company with the accused Yu Yaozhong (the following abbreviation is numerous bring a company) produce commodity house to sell contract issue, save to lodge a complaint of court of people of city of more than Yao to Zhejiang.
Brief introduction of details of a case:
2012, accuser and development company sign contract of commodity house business, agreed exceed the time limit hands in room and exceed the time limit to handle card penalty due to breach of contract, agree at the same time " if betrayed a person to exceed the time limit makes a room and assume exceed the time limit,make a room of responsibility of breach of contract, the time that sells person acceptance to obtain right of land, building to belong to certificate is corresponding postpone, the time of exceed the time limit of postpone deadline and commodity house consign is same " . Before at the expiration of one's term of office of the date that make a room, development company and accuser sign " both sides agrees with a book " : "Talk things over via oneself and development company consistent, oneself agree according to the contract time cooperates to handle the relevant work that make a room, so that be dealt with on schedule relevant produce the formalities such as card, but do not get X the stock such as X date key " . Afterwards, development company does not give without warrant with accuser coordinating the work that make a room is behavior of apparent break a contact, its should not assume exceed the time limit to hand in room and exceed the time limit to manage card obligation.
Zhejiang saves first instance of court of people of city of more than Yao to think:
The controversy focus of this case: It is the consign of experience case building; 2 be responsibility of breach of contract assume.
In this case, accuser Zhou Xianzhi, Yu Meifang and the accused are numerous install a company to sign " contract of commodity house business " true meaning shows party of department both sides, belong to active contract, have legal sanction to party. Bilateral party should fulfil his right obligation in the round according to the agreement. Obligation of contract of nonperformance of party one party perhaps fulfills contract obligation not to accord with an agreement, ought to assume continue to fulfill, take remedial action perhaps compensates for the responsibility of breach of contract such as the loss.
One, the consign of experience case building.
Top people court " about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " eleventh regulation: Have to the move of the building, the consign that counts a house is used, but the except that party has an agreement additionally.
Basis accuser Zhou Xianzhi, Yu Meifang and the accused are numerous install company bilateral place to sign " contract of commodity house business " agreement, "Betray a person to ought to be before December 31, 2012, use the vendee of commodity house consign that accords with each condition; After commodity house obtains consign use condition, sell a person ought to formalities of conduction consign of written announcement vendee, when both sides undertakes checking and accept having sex, betray a person to ought to produce the proof document that this contract provides the 9th times, sign a building to hand over sheet, before signing a building to hand over sheet, betray a person to must not reject vendee to check a building, what buy commodity house to be the residence, betray a person to still need to offer " residential guarantee of quality " and " residential operation instruction handbook " , betray a person to be not shown prove a file or produce a proof the file is not all ready, vendee has authority to reject to have sex, the delay that produces from this meets room duty by betray a person to assume. The delay that produces from this meets room duty by betray a person to assume..
The accused thinks to be issued according to 2 accuser " both sides agrees with a book " , the accused already handed in room circumstance to make clear specification to accuser with respect to the building, already witting the accused need not be in accuser again face of other running hand informs accuser deals with the formalities that make a room before December 31, 2012.
2 accuser are in this " both sides agrees with a book " on dictum " via oneself and numerous install a company to talk things over consistent, oneself agree according to the contract time cooperates to handle the relevant work that make a room, so that be dealt with on schedule relevant produce the formalities such as card, but do not get X the stock such as X date key " .
This character is stated and did not include defendant the meaning that accuser of beardless and written announcement just deals with building consign formalities expresses, it is accuser shows the time that is willing to agree according to the contract cooperates the accused to handle the relevant work that make a room only, the written announcement that did not prevent defendant namely and sign hand over the obligation such as sheet, after accordingly commodity house obtains consign use condition, the accused still ought to inform with written means according to the agreement of the contract accuser just deals with building consign formalities, both sides undertakes checking and accept having sex, sign a building to hand over sheet to wait, and not just bureau be confined to " the X that get the stock such as X date key " .
The accused argue says accuser is in this " both sides agrees with a book " go up to already will deal with the relevant formalities that make a room at agreeing date cooperates the accused before December 31, 2012 namely to the accused acceptance, so that deal with property right formalities on schedule, show accuser not to give without warrant coordinating the work that make a room is behavior of apparent break a contact, but the accused did not offer evidence to fasten accuser in order to prove not to cooperate to bring about the accused to cannot make a room completely truly to the court. And on September 23, 2013, accuser with respect to X the concerned garage of X size house property, basement, quality flaw issue that takes the side such as a door, balcony handles negotiation to the accused, square staff member is in the accused " Yue Long bay X X size house property is in a problem " on undertook demonstrative, put forward to rectify and reform an opinion (ending) is rectified and reform before October 5, 2013.
Visible, both sides also approbates experience case building to have not have consign requirement in fact, this building also transfers accuser not actually to just be had use. In the meantime, be in according to 2 accuser this " both sides agrees with a book " the acceptance that go up " him acceptance is willing to be in in June 2013 30 before X X date serves as numerous install office of company project department to use wait for relevant stock waited for building key to weigh on July 1, 2013 after expiring, be like cannot as scheduled the responsibility of breach of contract that by contract of commodity house business the 10th exceed the time limit reachs a house comes to consign processing, building interior restores a contract to reach room level, hereby acceptance " , can conclude give accuser to just agree to reach defer of experience case building on July 1, 2013 consign.
Integration analysis afore-mentioned circumstances, the court maintains the accused have not according to agreement delivers to experience case building accuser square, the delayed delivery behavior of reason the accused already made break a promise.
2, of responsibility of breach of contract assume.
1. Accuser Yu Meifang, Zhou Xianzhi thinks the accused is numerous the responsibility of breach of contract that brings a company to ought to assume exceed the time limit to make room and card of delayed delivery house property, land card; The accused thinks the accused had acquired property of experience case building on March 9, 2013 card, gained land access on March 25, 2013 card, afore-mentioned all belong to a contract to agree before March 31, 2013, deal with in buyers and sellers only end afore-mentioned authority card after the formalities that make a room ability is OK change the name of owner in a register arrives accuser under one's name, because accuser reason causes property right disease cannot change the name of owner in a register, although maintain the accused exceed the time limit to make a room, so exceed the time limit hands in building right to belong to certificate time ought to corresponding postpone.
Above all, " contract of commodity house business " carry bright: "Sell a person access of responsible conduction land is initiative register, obtain " land access certificate " or land uses a proof, betray a person to be in charge of applying for droit of this commodity house initiative register, acquire this commodity house " building droit card " , sell person commitment on March 31, 2013 before, right of the land that the money before obtaining sets, building belongs to certificate, deliver to vendee " .
This content makes clear the accused to ought to belong to certificate at land, building is being obtained to counterpoise before March 31, 2013, deliver to accuser square, and cannot understand for the accused oneself at be being obtained before March 31, 2013 " land access certificate " , " building droit card " initiative register, cannot decide when accuser just just can obtain estate authority evidence otherwise (register house property change the name of owner in a register to come from defendant company move) of accuser individual under one's name, show the accused already delayed delivery estate counterpoises belong to certificate, be contrary to with this photograph apparently, the accused also did not offer evidence to prove the department can return duty at accuser square reason causes delayed delivery estate authority belongs to certificate.
Next, according to contract agrees, the accused is had hand in on time room and on time the obligation that delivery advantageous position belongs to certificate.
Show the accused with the clause in the contract (accessory 8 compensatory agreements the 6th the 2nd) " if betrayed a person to exceed the time limit makes a room and assume exceed the time limit,make a room of responsibility of breach of contract, criterion this contract the 16th in the time that sells person acceptance to obtain right of land, building to belong to certificate is corresponding postpone, the phase of term of exceed the time limit of postpone deadline and commodity house consign is coequal " for, although maintain the accused exceed the time limit to make a room,think, so exceed the time limit hands in building right to belong to certificate time also ought to corresponding postpone.
Basis " contract law of People's Republic of China " thirtieth 9, the 40th regulation: Use format clause to conclude of the contract, the one party that offers format item ought to abide by fair principle to determine the right between party and obligation, adopt logical way to carry clear the other side to the attention is absolved or restrict the item of its responsibility, according to the requirement of the other side, give to this clause specification; Format clause has Benfadi 52 are mixed fiftieth of 3 regulations case, perhaps offer format clause one party to absolve its responsibility of responsibility, aggravating the other side, eliminate each other of main right, this clause is invalid.
Accessory the accused of the 6th the 2nd department just offers 8 compensatory agreements, its content is apparent buy accuser square interest at disregarding, bring about its rights and interests to be in not certain state, prevented defendant on time consign estate counterpoises the obligation that belongs to certificate, ought to be invalid format clause, reason the accused cannot agree because of what both sides has this article and absolve authority of its delayed delivery to belong to the responsibility of breach of contract of certificate.
2. The penalty due to breach of contract that 2 accuser ask the accused pays exceed the time limit to make a room and delayed delivery authority belong to the penalty due to breach of contract of certificate; The accused Yu Yaozhong installs estate to develop limited company to think, although maintain,make case of break a contact next adjuration reduce penalty due to breach of contract appropriately according to legal provision.
Top people court " about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 16th regulation: Party the penalty due to breach of contract with the agreement is exorbitant for request reductive, the loss that ought to cause more than with penalty due to breach of contract 30 ％ decrease appropriately for the standard; Party the penalty due to breach of contract with the agreement under what the request increases for the loss that cause, the loss that ought to cause with break a contact determines amount of penalty due to breach of contract.
Conclude from both sides " contract of commodity house business " in light of the purpose, room and consign estate are handed in to counterpoise about exceed the time limit between 2 accuser and the accused the agreement of penalty due to breach of contract that belongs to certificate has castigatory quality more () of castigatory sex penalty due to breach of contract, change character, it is a kind of punish that contract both sides agrees to place of break a contact.
2 accuser already agreed according to the contract the money that buy a house 5162730 yuan pay the accused entirely, at fulfilling to prevent the accused idle its add up to synonymous Wu, urge its to fulfill consign building and consign estate in time to counterpoise the obligation that belongs to certificate, penalty due to breach of contract still should be calculated according to contract agreement.
The accused of 2 accuser appeal fulfills what issued on September 23, 2013 instantly " X of Yue dragon bay X size house property is in a problem " the maintenance with maintenance affirmatory sheet is compulsory, maintain a result to answer with blueprint conform to, reach national level, depend on asking the accused is pressed character actually make an appointment with seasonable consign building.
On put together, zhejiang saves according to of court of people of city of more than Yao " contract law of People's Republic of China " thirtieth 9, the 40th, the 44th, the 60th, the 107th, the 114th, top people court " about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " eleventh, the 16th, " code of civil law of People's Republic of China " the 64th regulation, adjudicated on May 23, 2014:
One, the accused is numerous install a company to remove indrawn accuser Zhou Xianzhi, Yu Meifang 30 days at adjudicating the day of become effective originally X of Long Wan of Yue of the city zone of city of consign beyond Yao X date building;
2, the accused is numerous install a company to remove indrawn accuser Zhou Xianzhi, Yu Meifang 30 days at this day that adjudicates become effective X of Long Wan of Yue of the city zone of city of consign beyond Yao the estate authority of X date building belongs to certificate (, place of conduction change the name of owner in a register needs ought to expend by the duty of buyer pay by accuser Zhou Xianzhi, Yu Meifang assumes) ;
3, the accused is numerous install a company to already paid the money that buy a house by accuser Zhou Xianzhi, Yu Meifang 5162730 yuan press day since July 1, 2013 extremely the day that just pays exceed the time limit to reach room penalty due to breach of contract to real pay building to accuser stops (came on July 1, 2013 on January 1, 2014, penalty due to breach of contract is 191021.01 yuan of) ;
4, the accused is numerous install a company to already paid the money that buy a house 5 162 730 by accuser Zhou Xianzhi, Yu Meifang yuan press day since April 1, 2013 extremely just pay delayed delivery estate authority to accuser the day that belongs to certificate penalty due to breach of contract to come to adjudicate become effective originally stops (came on April 1, 2013, penalty due to breach of contract is 425925.23 yuan of) ;
5, the other suit request that rejects accuser Zhou Xianzhi, Yu Meifang.
After above money is restricted to produce legal effectiveness in this court decision inside 10 days paid. If did not press what this court decision appoints during fulfill pay money obligation, ought to according to " code of civil law of People's Republic of China " a stupid person 13 regulation, pay doubly to walk on the debt interest between date of departure tardily. This case case accepts cost 11 828 yuan, halve collection 5914 yuan, conserve expend 4770 yuan, aggregate 10 684 yuan, by accuser Zhou Xianzhi, Yu Meifang assumes 2473 yuan, the accused Yu Yaozhong installs estate to develop limited company to assume 8211 yuan.
Numerous install a company to refuse to obey first instance court decision, save court of intermediate people of peaceful wave city to mention to Zhejiang appeal says: First instance maintains factual mistake, applicable law is undeserved, the litigant request that requests to reject appellee or hair answer heavy careful.
Appellee Zhou Xianzhi, Yu Meifang rejoins say: First instance adjudicates cognizance fact is clear, applicable law is correct, the request rejects appeal, maintain original judgement.
Classics of court of intermediate people of city of Zhejiang province peaceful wave 2 careful, acknowledged the one fact that careful finds out.
Court of intermediate people of city of wave of Zhejiang province peace 2 careful think:
Appellant is numerous those who install company and appellee Zhou Xianzhi, Yu Meifang to sign " contract of commodity house business " true meaning shows party of department both sides, belong to active contract, both sides should fulfil his right obligation in the round according to the agreement.
Sign according to bilateral place " contract of commodity house business " agreement, "Betray a person to ought to be before December 31, 2012, use the vendee of commodity house consign that accords with each condition; After commodity house obtains consign use condition, sell a person ought to formalities of conduction consign of written announcement vendee, ... . " demonstrative appellant ought to written announcement appellee deals with consign formalities; And issue according to appellee " both sides agrees with a book " , appellee can cooperate to deal with the formalities that make a room according to the time of bilateral agreement, reason appellant need not be before December 31, 2012 face of other running hand informs appellee deals with the formalities that make a room.
But the garage, basement, quality flaw that takes the respect existence such as a door, balcony was concerned with respect to experience case house property on September 23, 2013 according to both sides the specification of the problem and not was opposite all the time of existence problem rectify and reform make conclusion circumstance look, both sides did not solve the problem that make a room up to now, appellant existence exceed the time limit makes the conduct of break a contact of the room.
To " contract of commodity house business " in of the agreement " sell a person access of responsible conduction land is initiative register, obtain " land access certificate " or land uses a proof, betray a person to be in charge of applying for droit of this commodity house initiative register, acquire this commodity house " building droit card " , sell person commitment on March 31, 2013 before, right of the land that the money before obtaining sets, building belongs to certificate, deliver to vendee " , made clear appellant to ought to belong to certificate at land, building is being obtained to counterpoise before March 31, 2013, deliver to appellee, and cannot understand for appellant oneself at be being obtained before March 31, 2013 " land access certificate " , " building droit card " initiative register, cannot decide when appellee just can obtain estate authority letter otherwise (register house property change the name of owner in a register to come from appellant company move) of appellee under one's name, show appellant already delayed delivery estate counterpoises belong to certificate, ought to undertake responsibility of breach of contract.
As to accessory 8 compensatory agreements the 6th the 2nd about " if betrayed a person to exceed the time limit makes a room and assume exceed the time limit,make a room of responsibility of breach of contract, criterion this contract the 16th in the time that sells person acceptance to obtain right of land, building to belong to certificate is corresponding postpone, the time of exceed the time limit of postpone deadline and commodity house consign is same " agreement, basis " contract law of People's Republic of China " thirtieth 9, the 40th regulation: Use format clause to conclude of the contract, the one party that offers format item ought to abide by fair principle to determine the right between party and obligation, adopt logical way to submit to to attention of the other side is absolved or restrict the item of its responsibility, according to the requirement of the other side, give to this clause specification; Format clause has Benfadi 52 are mixed fiftieth of 3 regulations case, perhaps offer format clause one party to absolve its responsibility of responsibility, aggravating the other side, eliminate each other of main right, this clause is invalid.
This format clause of compensatory agreement fastens appellant to offer, did not adopt logical way to submit to attention of the other side, and its content is opposite apparently appellee interest is adverse, bring about appellee rights and interests to be in not certain state, absolved appellant on time consign estate counterpoises the obligation that belongs to certificate, ought to be invalid.
On put together, according to of court of intermediate people of city of Zhejiang province peaceful wave " code of civil law of People's Republic of China " the 170th the first (one) , the 175th, adjudicated on August 13, 2014:
Reject appeal, maintain original judgement. 2 careful case accepts fee 9969 yuan, by appellant numerous install company load.
This court decision is final judgment to adjudicate.
