Note:

     2010Year, the State Council issued a "country of ten" (that is, "the State Council on resolutely curb the parts of the city house prices rise rapidly" notice (Guofa [2010)10No.)), Shenzhen court in adjudicating cases, will differentiate to find out the reason the transaction could not be performed, is a result of a breach by, or because of policy reasons can not be caused by bank mortgage loans, which in the judgment, will be treated differently.

  Now, through the Bank of the purchase of mortgage loans has become the most buyers preferred. However, the mortgage can smoothly approved is influenced by many factors, such as: macro policy adjustment state, property buyers solvency and credibility. Since the end of 2007, the American subprime mortgage crisis, and government policies to control prices, most banks suddenly "monetary tightening", and increasingly stringent conditions: payment is paid in full, whether the money in place (request payment to bank regulation, to a certain extent curb the "zero down payment mortgage" approach); whether the purchase of second home; whether the property buyers with poor credit histories; assessment of the market value of property transactions, etc..

  In Shenzhen, the transaction of real estate appraisal report appraisal center also to trial, trial procedures is completed before the buyer can confirm the actual loan to the mortgage loan.

  Thus, a lot has already signed a contract for the sale of the buyer can not through banks review, itself does not have the ability to make up the difference of money, inevitably, a large number of real estate disputes. At this point, the buyer usually reasons: because of the national policy change or bank causes not the issuance of mortgage loans, do not belong to force majeure, or change of circumstances.

  However, failure to apply for mortgage loans, whether to belong to the irresistible force, or to change the situation? Whether the justification of the buyer?

  "General principles of civil law" and "contract law" will be irresistible force is defined as "the objective circumstances unforeseeable, unavoidable and insurmountable". From the subjective aspect, not belonging to the "force majeure factors unforeseen"; from the objective elements, not belonging to the "force majeure factors cannot avoid, can't overcome". However, loans do not come down, not predictable, because not everyone can apply of course from banks to loan, the bank would have the right to refuse to loan, also not insurmountable, the buyer can borrow from relatives and friends of the way to fill the purchase. People can't borrow the money, can not be the grounds of breach of contract.

  Principle of change of circumstances, is a specific application of fairness, honesty and credit principle, referred to in the contract to perform before the end, for reasons not attributable to the party's cause shaken or loss of foundation under the contract, such as to continue to perform the contract will give a huge losses and unfair obviously, thus the law allows the change or the termination of the contract, and may reduce or exempt the liability of a party. To change the situation that is "contract based shake or loss" and "will give the other party brings great loss and unfair". But the loans do not come down, did not make the contract basis to shake, because the contract for the sale of real estate transaction to transaction of real estate, the real estate property rights transfer, mortgage loan contract only a payment; moreover, loans do not come down, also do not exist to the same party brings great loss. Unfair, because the real estate and property transaction price without any changes.

  Thus, loans do not come down, does not belong to "irresistible force", also do not belong to "change", no special stipulation in the contract, the buyer which can not fulfill the contract, constitutes a fundamental breach of contract, should bear the deposit is forfeited or pay breach of contract damages of liability for breach of contract.

  For loans, in Shenzhen, all provided by the conduit company in 2007 December before the use of second-hand housing transactions contract, most of them do not make a special agreement, only a small part has made "as banks mortgage, the buyer shall make up the". According to this agreement, such as do not mortgage, the buyer shall unconditionally complement, otherwise, shall constitute a breach of contract, not negotiable!

  However, in the face of tight "monetary", more and more stringent loan conditions, and the hands of only a fixed payment and no other financing channels, the purchase, how to not allow yourself to become the "defaulting party"?

  At this point, the buyer and the seller must be in real estate sales contracts agreed termination conditions, a special contract: if banks pledged to the issuance of mortgage loans less than the mortgage stipulated in this contract, the buyer shall have the right to terminate the contract, both parties are not held accountable, the seller to return the deposit paid by the buyer. In this way, the contract to the buyer is a protective barrier, once do not mortgage loans, or loans is insufficient, condition for termination of the contract which are the achievement, the buyer may terminate the contract, also need not assume any responsibility.

  Since the beginning of January 1, 2008 implementation of the "Shenzhen second-hand housing for sale and intermediary services contract (Revised Edition)" should be based on the original loan contract to the buyer with two options: the buyer to make up the balance payment; the termination of the contract.