Juridical summary
Party regards term and conditions of contract as specific and subjective purpose or clinch a deal the foundation makes clear an agreement, criterion of this specific and subjective purpose change objectively, belong to " contract law of People's Republic of China " the 94th the first quadrinomial compasses makes range. The building that is like development business pay and the position position that the contract that buy a house agrees are opposite, and cannot exchange, the person that buy a house is OK contract purpose cannot come true remove contract.
Brief introduction of details of a case
Accuser Zhang Mou China, husband and wife of department of Xu Mou flower concerns. On Feburary 7, 2014, zhang Mou China (vendee) take strange place job with the accused (sell a person) sign " contract of commodity house business " , the agreement is bought suffer by the commodity room that takes development of strange place estate (in build) , contract account floor area is this room 87.88 square metre, unit price is 7168.87 yuan / square metre, house total prices is RMB 630 000 yuan. This contract accessory is Zhang Mou China, Xu Mou flower to buy the plan that accepts a building. Sign a contract that day, zhang Mou China, Xu Mou flower is one-time pay house money 630 000 yuan, take strange place course of study to open a sale praedial unified bill.
In June 2015, the accused takes Xiang Yuan of strange place course of study to accuse Zhang Mou China, Xu Mou flower to issue the announcement that make a room, data of conduct propaganda of the house that Zhang Mou China, Xu Mou flower buys and the room that take strange place job graph and accessory of bilateral the contract that buy a house carry bright room graph door model consistent, but structure of actual room distribution and room graph is axial symmetry direction, the room that takes strange place job azimuth that publicizes graph and contract accessory room graph is: Stand to be faced at the doorway with personnel it is inside the room accurate, advocate lie, second lie, toilet is located in on the right side of; Dining-room, sitting room, kitchen is located in left. Actual time situation and publicize graphical place that reachs contract accessory contrary. Zhang Mou China, Xu Mou flower on July 16, 2015 to take strange place course of study to give out a lawyer to case one, think to cannot achieve contract goal, take strange place course of study to already made essential sex break a promise.
During 2 careful are tried, both sides acknowledges the following fact consistently: 1. Appellee takes strange place job accessory of the real pay building and propagandist picture, contract that buy a house the building plan of one (build take contract of strange place employment special rule) position of in-house left and right sides is opposite. 2. Appellant Zhang Mou China, the example room that when Xu Mou flower buys a house, sees and real pay building not conform to. 3. With the contract that buy a house the agreement agrees door model already total sale, cannot the building with consign and concurrent plan of contract accessory building.
Controversy focus
Vendee Zhang Mou China, Xu Mou flower whether with contract purpose cannot remove for implementation does case experience buy room contract?
Forensic court decision
Court of Nantong city intermediate people 2 careful think: Basis " contract law of People's Republic of China " the 94th the first the 4th regulation, party one party fulfills debt to perhaps behavior of other beak a contract sends indispose to achieve contract goal tardily, party can remove contract. This gift break a contact of the blame when contract purpose cannot come true square legal remove authority, left and right sides of layout of interior of case experience building brings about appellant instead purpose of contract of Zhang Mou China, Xu Mou flower cannot come true, its have authority to remove the contract that buy a house.
Above all, contract purpose includes objective purpose and subjective end. Objective purpose namely the model trades purpose, the objective end that party buys a house depends on acquiring building property and use at living, child enter a school, investment, the element that objective purpose implements influence contract has establishment of form a complete set of building position, area, floor, daylighting, quality, village to wait, objective purpose can pass social popular common and cognitive standard gives judgement. Subjective purpose plays the motive of party and original idea for certain and specific situation. Generally speaking, " contract law of People's Republic of China " the 94th the first the 4th medium contract purpose does not include subjective end, but the condition that party regards a contract as specific subjective aim or the foundation that clinch a deal, criterion this specific subjective aim is changed objectively, belong to " contract law of People's Republic of China " the 94th compasses makes range.
Secondly, in this case, bilateral party controls distribution agreement to make clear to the interior of the building. From the point of existing evidence, the building plan in no matter be the propagandist picture that appellee takes strange place job,still buying room contract accessory, all made clear the or so layout after the building takes the door. Take strange place job the building plan in accessory of the contract that buy a house builds a contract special rule, this accessory did not remind the person that buy a house, the position of in-house left and right sides of real pay building may be as opposite as ichnography. Take dispute of strange place trade to call its the staff member in sale building Shi Cengming is informed truly, but did not offer card to prove according to giving, the agree carries quote incapable adverse consequence. And appellant Zhang Mou China, place of Xu Mou flower buys house of building by a definite date, the example room that sees when buying a house also the building with real pay is abhorrent, cannot conclude accordingly the layout of in-house left and right sides that Zhang Mou China, Xu Mou flower knows perfectly well place to buy a house and contract agreement are contrary.
Thirdly, appellant Zhang Mou China, Xu Mou flower controls layout to agree clearly to building interior and regard specific contract as the purpose, of not lawbreaking, administrative regulations prohibit sexual regulation, yi Wei enroach on beneficial of the 3rd human rights, belong to the category of party meaning autonomy, legal esteem and protection are individual the legal right that chooses appropriate building through oneself valuation freedom. The building is not general goods, the person that buy a house buys the careful choice of the building to accord with the life to often manage to place. Because appellee takes strange place job not the building that consign accords with contract agreement overall arrangement and cannot exchange, the contract purpose that causes Zhang Mou China, Xu Mou flower to buy house of overall arrangement of the agreement in according with accessory of the contract that buy a house comes to nothing, zhang Mou China, Xu Mou flower asks to remove the contract has at the law according to, the court gives affirm. Zhang Mou China, Xu Mou flower on July 16, 2015 to take strange place course of study to give out a lawyer to case, inform take strange place course of study to make essential break a promise, ask its take out a solution, dan Weiming removes truly contract, reason court affirms what case experience buys room contract to remove the day that during time is first instance, indictment carbon service takes strange place job namely on August 1, 2015.
Basis " contract law of People's Republic of China " the 97th regulation, after the contract removes, have not fulfill, stop fulfill; Had fulfilled, the basis performs circumstance and contract character, party can ask restorable, adopt other remedy measure, have right seek redress loss. As a result of appellant Zhang Mou China, Xu Mou flower acquires case experience building not actually, appellee takes strange place course of study to should be returned still buy house money 630 000 yuan, in the meantime, zhang Mou China, Xu Mou flower abandons the position of parts of pair of penalty due to breach of contract, fasten the free punish of pair of oneself rights, the court requests granted.
-- -- -- Zhang Mou China, Xu Mou flower appeals to open east city takes strange place job desk of dispute of contract of business of limited company building
Knowledge is extended
1. should be denied about developing business and the responsibility of breach of contract that how undertakes exceed the time limit to make a room, should deny the problem that bears the retaining fee that the person that buy a house pays
" contract law of People's Republic of China " the 107th regulation, 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.
In this case, exceed the time limit of company of the beautiful that install barium hands in a room to make break a promise, behoove undertakes corresponding responsibility of breach of contract lawfully. About An Bei according to bilateral party beautiful company exceed the time limit makes a room the agreement of responsibility of breach of contract, install the penalty due to breach of contract that promise of baric beautiful company carries to be: 314302 yuan of × 2=18858120 of 30 days of × yuan; 5 ‰ of 62860400 yuan of × =314302 yuan; 5 ‰ of 35541130 yuan of × =177705.65 yuan; Above is aggregate 19350127.65 yuan. Hong Mou phoenix asks company of the beautiful that install barium assumes 19350128 yuan responsibility of breach of contract to have contract basis. Consider Hong Mou phoenix to fail to provide sufficient evidence to the view of the property of 7.36 million yuan of money of its collection, for interest of better balance party, this can give from inside amount of penalty due to breach of contract deduct accordingly. Accordingly, ying Xianghong of company of the beautiful that install barium some phoenix pay penalty due to breach of contract 11990128 yuan.
Basis " contract law of People's Republic of China " the 113rd the first section provision, obligation of contract of nonperformance of party one party perhaps fulfills contract obligation not to accord with an agreement, cause losing to the other side, the loss compensates for the forehead to ought to be equivalent to the loss that causes because of place of break a contact.
Retaining fee 3 million yuan defray, be not the cost that Hong Mou phoenix holds to the right happens necessarily, below the circumstance that does not have extraordinary agreement to this in party, hong Mou phoenix also proves this amount of loss and act of beak a contract of company of the beautiful that install barium not adequately between direct causal, reason is right this lawsuit requests Hong Mou phoenix, this academy does not grant to support.
-- -- -- desk of dispute of contract of business of building of limited company of development of estate of beautiful of An Bei of Hong Mou phoenix and Kunming
Record date: (2015) civilian one eventually word the 78th
Person of room of 2. carry out receives room money paid for something purchased or received for something sold and after consign building, the land that because this building takes up,holds is transfer land and both sides did not deal with building property right to transfer change to register formalities, the request affirms building business agreement is invalid, whether should get supportive?
Cognizance of classics of court of intermediate people of in relief city of Sichuan province heart thinks, top people court is in " about applicable < contract law of People's Republic of China > the explanation of a certain number of problems (one) " the 9th in regulation: "According to contract law the 44th the 2nd regulation, law, administrative regulations stipulates the contract ought to deal with approval procedures, perhaps deal with approval, register wait for formalities ability become effective, before controversy of first instance court is terminative party still did not deal with those who approve procedure, still perhaps did not deal with approval, register those who wait for formalities, people court ought to hold this contract not become effective; Law, administrative regulations stipulates the contract ought to deal with the formalities that register, but did not provide effect of the have a youthful look that register, party did not deal with the formalities that register not to affect the effectiveness of the contract, matter right cannot transfer the content droit etc of contract award. Matter right cannot transfer the content droit etc of contract award..
Consult this one regulation, appellant is at some before first instance to lodge a complaint, the property right card that handled experience case building respectively already and land access card, become the person of legal property right of this building. The building business agreement that at some identity with person of legal property right and Bin of appellee Dong Mou, Dong Mou precious signs, hold water lawfully. Basis " the ground goes along with the room " principle, when Yu Mou is selling his house property, the land access that its gain with transfer means, filling lawfully after doing corresponding procedure, also can make over, reason cannot hold water at some a:appellant reason, should grant to reject.
-- -- Yu Mou relates issue of business of building of precious of Dong Mou Bin, Dong Mou 2 try a case
3. sells the person hides the fact of building leakage rain, whether can because get contract of business of con cancel building,vendee advocate?
Basis " contract law of People's Republic of China " fiftieth 4 regulation, one party with con, threatening method or take advantage of sb's precarious situation, make the other side issues concluded contract in the condition that violates true meaning, damage kills Fang Youquan to ask people court arbitral perhaps structure is changed or cancel. Yu Mou discovers in process seeing a room roof has light leakage rain mark, gao Mou and its mother-in-law Zhang Mou beautiful inform Yu Mou this building has not leaked through maintenance rain, but when seeing a room to this building again in the Yu Mou after rain, discover the building still has leakage rain case, because this is in this second business course,Gao Mou reachs its mother-in-law Zhang Mou the fraudulent action with beautiful constant presence, the building business contract that because this has right at some,its and Gao Mou sign cancel of request people court.
Basis " contract law of People's Republic of China " fiftieth 8 regulation, the contract disables or by cancel hind, because of the property that this contract acquires, ought to give return still. Because of this Gao Mou 5 to Yu Mou collection, 0 yuan of deposit should be returned return Yu Mou.
-- -- dispute of contract of business of building of Gao Mou, Yu Mou 2 careful judgment
Record date: (2016) black 02 civilian eventually 1273
