Legal opinions

 

 

 

 

Issued by the unit: Shandong XX law firm

 

 

Law: Chen Cheng Chu

 

 

 

 

 

 

 

March 28, 2010

Shandong XX law firm

Legal opinions

                       -- 2010 Lu Quanxing Law Advisory No. (001) No.

 

Question: Housing sales contracts delivery disputes and liability for breach of contract

 

Consultant: Mr. Xu XX

 

Advisory: March 26, 2010

 

A, issued the "legal opinions" of the main legal basis:

 

"General rule of the civil law" (hereinafter referred to as the "general principles of civil law")

 

"Opinions of the Supreme People's Court on some issues for the implementation of the people's Republic of China Law > > (for Trial Implementation)" (hereinafter referred to as "the views of the people through")

 

"Contract law of the people's Republic of China" (hereinafter referred to as the "contract law")

 

"Property law of the people's Republic of China" (hereinafter referred to as "property law")

 

"Housing registration measures" (hereinafter referred to as the "registration")

 

The main case two, your facts

 

1, a party to the case:You (home buyer, in the contract Party B) and X (housing a seller, the party in the contract)

 

2Case: the XX, objectXX x ring X east ring square (B) second building 28 unit 280128022804 room; the contract default payment; your decoration costs spent 2804.

 

3, the facts of the case:In November 16, 2006, X signed a "contract" with your XX the sale of housing, real estate brokers Limited as a witness. Contract, x will x Central Plaza second (B) 28 Unit No. 2801 and No. 2802 houses sold to you, two sets of housing a total area of 405.01 square meters. Prices for two million four hundred and thirty thousand sixty yuan (2430060 yuan).

You on the same day under the contract agreed to pay 30% of the 1629 total seven hundred and twenty-nine thousand eighteen yuan ($729018), a x issued a receipt as evidence, X in on the day shall be in accordance with the contract, delivery to your house keys and repair fund property right, payment documents. The two sides at the same time a supplementary agreement related costs you only responsible for producing period for the transfer of housing. In terms of breach of contract, both sides agreed "1, relating to the party ownership disputes and debt disputes, by the party responsible for resolving and bear all the consequences and responsibility of breach of contract. 2, Party A and Party B in the signing of this contract, such as a, B any party fails to perform the relevant obligations stipulated in this contract, each day overdue, the breaching party shall be the opposite party to the contract of sale housing payment of the contract total Fangjiekuan 3 ‰ of liquidated damages and compensation for the other party as a loss, continue to perform the contract. 3, if Party A in accordance with Article eighth of the contract within 30 days is not others obligations, Party B shall exercise the ownership of property rights, and has the right to obtain the agreed liquidated damages in accordance with the."

At the same time you in November 16, 2006 and the Shandong XX Real Estate Development Company Limited signed the "commercial housing sales contracts" also agreed to the subject matter of the contract is x ring Plaza second (B) 28 Unit No. 2801 and 2802.

In addition XX the city Housing Authority respectively in February 13, 2008 and April 7, 2008 x issued housing Li Zi No. 093903 and No. 95071st calendar x housing property permits to prove you as the No. 2801 and No. 2802 housing ownership.

But x recently told you, was delivered to you is the No. 2801 and No. 2084 keys, Zhang Hui because of the wrong delivery, you live now is facing the shady side of No. 2084 building, and done a lot of work for the 2804 of the housing decoration. X required to maintain the existing housing use state and change of No. 2802 and No. 2804 of real estate certificates, resulting in disputes.

 

Three, you look forward to claim

 

1, ask for the return of all of your opponent is using XX XX x second (B) Central Plaza building 28 unit 2802 room.

 

2, ask for compensation for the expenses you other people's mistakes others based on No. 2804 building decoration.

 

3, demand the other party to contract agreed to pay liquidated damages according to you.

 

Four, advice

(a) can ask for return of the 2802 houses?

We believe that this claim is full of facts and legal basis.

Basis in fact:

1.2006 years in November 16th and the other signed the "housing sales contracts" clearly agreed the sale of housing is the No. 2801 and No. 2802.

Two copies of the "commercial housing sales contracts" in November 16th 2.2006 and XX Real Estate Company Limited signed also explicitly prescribe the number is 2801 and 2802.

In November 16th 3.2006, a x sign for receipt also made it clear that the receivables are No. 2801 and No. 2802 housing funds.

4 XX according to the city Housing Authority respectively in February 13, 2008 and April 7, 2008 x issued housing Li Zi No. 093903 and No. 95071st calendar x housing property permits to prove you as the No. 2801 and No. 2802 housing ownership.

The legal basis:

The Housing Department of immovable property, the transfer of ownership to the delivery of housing and for the transfer of registration for elements, house property card is a symbol of home ownership, you can return to the claims of the other side of No. 2802 building in accordance with the following provisions of law in our country:

1 "general principles of civil law" seventy-second article: obtain ownership of the property, shall not violate the provisions of the law.

Property obtained in accordance with the contract or other legal means, the transfer of property ownership of the property at the time of delivery, the legal provisions or the parties have agreed otherwise.

2 "property law" sixth article: the establishment of real property, alteration, transfer and elimination, shall be registered according to law. Chattel shall be delivered in accordance with law.

3 "property law" Ninth Article: the establishment of real property, alteration, transfer and elimination, registered according to law, come into effect; without registration, no effect, except as otherwise stipulated by law.

4 "property law" the first paragraph of article fourteenth: the establishment of real property, alteration, transfer and elimination, in accordance with the law shall be registered, once recorded in the immovable property effect of register.

5 "registration" article fifth paragraph second: housing register is the housing rights of ownership and content of the house, by the registration authority.

The first second twenty-fifth 6 "registration": housing registration institution shall, according to the housing register records, copy and distribute the house ownership certificate to the right person.

Housing management authority certificate is the proof of the right to enjoy the housing rights, including "all of housing", "housing He Xiang of" etc.. The application for registration of housing for a total of housing, housing registration authorities shall in all of the housing "is a" state.

7 "general principles of civil law" seventy-first article: property ownership means the owner is entitled to possess, use, profit from and dispose of his property rights according to law.

8 "general principles of civil law" seventy-fifth article: personal property of citizens, including citizens' lawful income, housing, savings, daily necessities, cultural relics, books, forest trees, livestock and the law allows citizens of all means of production and other lawful property.

The legitimate property of citizens are protected by law, and no organization or individual may appropriate, encroach upon, destroy or illegally seal up, distrain, freeze, confiscated.

9 "property law" article fourth: the state, the collective, private property rights and other property rights are protected by law, no unit or individual shall infringe.

10 "property law" thirty-second article: the violation of rights, human rights can be settled through conciliation, mediation or arbitration, etc..

11 "property law" sixty-sixth article: private legal property protected by law, no entity or individual may encroach, plunder, destruction.

12 "property law" thirty-fourth article: unauthorized possession of immovable property or movable property, the holder may request the return of original.

(two) can request payment due to launch the errors generated huge default payment?

Liability for breach of contract, is refers to the civil liability for breach of a contract, the parties to the contract is a do not perform or improper fulfillment of contract obligations to fulfill, take remedial measures, compensation for damages, liquidated damages in civil legal consequence.

We believe that this claim is relevant facts and legal basis.

Basis in fact:

1.2006 years in November 16th and the other signed the "housing sales contracts" clearly stipulated that "both parties in the signing of this contract, such as a, B any party fails to perform the relevant obligations stipulated in this contract, each day overdue, the breaching party shall be the opposite party to the contract of sale housing payment of the contract total Fangjiekuan 3 ‰ the liquidated damages and compensation for the losses thus incurred, continue to perform the contract."

2 each delivery of the wrong house keys.

3 other recently oral notice you request to change the property permits, the fact has admitted that its launch error.

The legal basis:

The main obligation as the seller contracts of sale is: one, the transfer of ownership of the subject matter to the buyer, is to buy a house for transfer registration; two, the correct delivery of the subject matter, the right to housing and housing keys to the buyer.

1 "contract law" article 135th: the Seller shall perform the documents to take delivery of the object to deliver to the buyer the goods or, and to transfer the ownership of the object of compulsory.

2 "contract law" article 138th: the Seller shall deliver the subject matter. Agreed delivery period, any time, the seller may deliver at period of delivery.

3 "contract law" article sixtieth: the parties shall fully perform its own obligations as agreed.

The parties shall abide by the principle of good faith, according to the nature of the contract, to perform the obligations of notification, assistance and trading habits, obligations.

4 "general principles of civil law" article 111st: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreed conditions, the other party is entitled to perform or take remedial measures, and shall have the right to claim compensation for losses.

5 "contract law" article 107th: a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract.

6 "contract law" article 114th: the parties may agree that one party breach shall pay a certain amount of liquidated damages under the default to the other party, also can agree on a method for the calculation of damages for the loss resulting from.

Liquidated damages are lower than the losses caused, the parties may request the people's court or an arbitration institution to increase; the agreed liquidated damages is excessively higher than the losses caused, the parties may request the people's court or an arbitration institution to make an appropriate reduction.

The parties prescribed liquidated damages for delayed performance, the party in breach to pay liquidated damages, shall perform the obligations.

(three) can ask for compensation for your decoration 2804 house training expenses?

We believe that this claim can be two legal basis to support.

One, if you tell the other breach of contract litigation request can be upheld in court, the claim could be supported, the legal basis is:

1 "general principles of civil law" article 111st: if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreed conditions, the other party is entitled to perform or take remedial measures, and shall have the right to claim compensation for losses.

2 "contract law" article 107th: a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures or compensate for the losses and liability for breach of contract.

Two, if the claim breach cannot get the support of the court, you still can be based on unjust enrichment to ask for compensation. The legal basis is:

1 "general principles of civil law" ninety-second article: no legal basis, obtain improper benefits, thus causing any loss to others, shall

Improper benefits will be returned to the person who suffered the loss.

2 "the views of the people through" 131st: returned illegal profits, should include the original and the fruits arising therefrom. The unjust enrichment and other interests obtained by deducting the costs, labor management, shall be confiscated.

 

Justification, the other party may put forward five

A party may claim, based on the great misunderstanding to change or cancel the contract. (the justification for a low stress)

The reason may be:

1 "general principles of civil law" article fifty-ninth: the following civil behavior, one party is entitled to petition the people's court or an arbitration institution for

To change or cancel:

(a) actor who seriously misunderstood the contents of the acts;

(two) unfair.

Civil action is revoked from the beginning of acts invalid.

2 "contract law" article fifty-fourth: the following contract, one party is entitled to petition the people's court or an arbitration institution to modify or revoke:

(a) for a major misunderstanding;

(two) at the conclusion of the contract unconscionability.

A party to fraud, coercion, or position of vulnerability, so that Party A in case of violation of the true meaning of the contract, the aggrieved party is entitled to petition the people's court or an arbitration institution to modify or revoke.

Where a party requests for modification, the people's court or an arbitration institution may not be revoked

3 "contract law" article fifty-fifth: any of the following circumstances, cancellation right is extinguished:

(a) a party having the right to revoke knows or should know the cause for cancellation date does not exercise its right of rescission within one year;

(two) a party having the right to revoke know the cause for cancellation, expressly or by their actions give up the right of revocation.

4 "the views of the people through" seventy-first: because of the nature of human behavior, the behavior of the other party, the object of the variety, quality, specifications and quantities of mistake, the opposite behaviors and their consequences, and caused heavy losses, can be identified as a major misunderstanding.

5 "contract law" article seventy-fifth:'s cancellation right shall know or should know the cause for cancellation of one year from the date of exercise. Does not exercise its right of rescission within five years from the date of the debtor, the cancellation right is extinguished.

Two, the other party may take over the limitation of action to defend. (reason for the defence force is high)

The other is likely to prove you wrong others also exist for fault even knowing that staggered real and not be advocated, which exceeds the limitation, and awarded in February 13, 2008 real estate bureau property permits for housing has a clear sign, you are not in favor of that, might have been each other as evidence to prove that your request after two years of litigation.

 

The legal basis is:

"General principles of civil law" article 135th: the period of limitation of action to the people's court for protection of civil rights is two years, except as otherwise stipulated by law.

 

 

The return of six, you can also put housing area and the actual area error cost agreed to a request

We found that the area of contrast issued on the contractual area and the property permits, the actual area of less than an area of 2.84 square meters.

 

Seven, the statement and retention

The "book" legal advice from a professional point of view statement of our judgments and opinions, the above opinion, for reference only, the client has the right to independent judgment to the "legal opinions" inferences and conclusions.

Without the written permission of the law firm and the law, the "legal opinions" may not produce to any third party, and shall not be used as evidence.

 

                                                          Shandong XX law firm

                                            

          Law: Chen Cheng Chu

                                          

March 28, 2010