Recently, the TV series "Anjia" has swept the screen. In the play, Boss Lin, the feed king, wanted to buy an old villa in Shanghai, so he entrusted many intermediaries including Fang Sijin to help him find it. Fang naturally won't miss this opportunity of billing, and tries his best to find a suitable house for boss Lin. But out of trust in boss Lin, she didn't ask to sign a written intermediary contract with boss Lin. After a lot of hardships, the room was like brocade, and finally I helped boss Lin find his favorite old villa-Xiangfu, and introduced him to the owner. Fang thought that his efforts were not in vain and finally negotiated a big order. Unexpectedly, however, Mr. Lin actually signed a house sales contract behind the owner's back, which means that the room that is commonly known as "jumping the bill" or "jumping the intermediary" is naturally unwilling, so I went to consult with Boss Lin and the following conversation took place:
Screenshot of TV series "Anjia"
Lin Maogen: Who do you think I will give this business to and who I won't give it to? It's inappropriate.
Fang Rujin: I exclusively developed the houses and owners of Xiangfu.
Lin Maogen: Are you exclusive? Do you have any evidence? Xiao Fang, I don't remember that we have signed an agency contract. The key is to be fair, even if I give you money, I want to be famous!
Room is like brocade: I have been taught!
Boss Lin's understatement of "Xiao Fang, I remember we didn't sign the agency contract" left the experienced intermediary room speechless and had to leave silently.
What do legal people think?
Myth 1: Did Fang fail to sign a written contract with Boss Lin and ask Boss Lin to pay the remuneration and expenses, so he became an unknown teacher?
This is a misunderstanding of unwritten intermediary contracts.
From the nature of the contract, the intermediary contract is not an essential contract, and the oral agreement can still be regarded as a contract. According to Article 10 of China's Contract Law, there are written forms, oral forms and other forms of contracts. Where laws and administrative regulations stipulate that it shall be in writing, it shall be in writing. Intermediary contract is not a necessary contract stipulated in the contract law and need not be limited to written form. Although article 16 of the Measures for the Administration of Real Estate Brokers stipulates that a real estate brokerage institution shall sign a written real estate brokerage service contract with the client if it is entrusted to provide real estate information, inspect the house on the spot and match similar real estate brokerage services. However, the Measures for the Administration of Real Estate Agents is neither a law nor an administrative regulation. That is to say, a real estate agency contract can be established in written form or oral form as long as the parties agree to express their will.
From the point of view of the effectiveness of the contract, the absence of written form does not affect the effectiveness of the intermediary contract. On the one hand, the Supreme People's Court Law [2019] No.254 "Minutes of Civil and Commercial Trials of National Courts" (hereinafter referred to as "Minutes of Nine Persons") clearly stipulates that violation of rules generally does not affect the validity of contracts. Even if the violation of the Measures for the Administration of Real Estate Brokers is not in written form, but in oral form, the real estate agency contract should be established and take effect. On the other hand, the fifth paragraph of Article 52 of the Contract Law stipulates that a contract that violates the mandatory provisions of laws and administrative regulations is invalid. In judicial practice, the aforementioned mandatory clauses are actually divided into effective mandatory clauses and administrative mandatory clauses, and only the violation of effective mandatory clauses will affect the effectiveness of the contract. Article 3 1 of the summary of nine people lists effective mandatory provisions, that is, provisions concerning public order and good customs such as financial security, market order and national macro policies; Prohibit the transaction of the subject matter of the transaction; Violation of franchise regulations; The transaction method is seriously illegal; Where the trading place is illegal, it shall be deemed as an "effective mandatory provision". Obviously, even if the Measures for the Administration of Real Estate Brokers are raised to the level of administrative regulations, it will violate the stipulation that a real estate brokerage service contract should be signed, and it will not cause damage to social public order, public interests and public order and good customs. It is not a serious violation of trading methods, so it will not affect the effectiveness of the contract, and the intermediary contract reached orally should not be considered invalid.
Judging from the performance of the contract, the party has fulfilled its main obligations and the contract between the two parties was established according to law. Article 37 of the Contract Law stipulates that "a contract is concluded in written form as stipulated by laws and administrative regulations or agreed by the parties, but if one party has fulfilled its main obligations and the other party accepts it, the contract is established." Since the law stipulates that it should be in writing instead of in writing, a contract can be established as long as it meets the provisions of Article 37. If one party has fulfilled its main obligations and the other party has accepted it, then the contract is undoubtedly established. In the play, Fang accepted the (oral) entrustment of Boss Lin, found his favorite Shanghai old house Xiangfu for Boss Lin, and introduced Boss Lin to meet with the owner of Xiangfu. As an intermediary, Fang has fulfilled the main obligation of recommending suitable houses and owners to negotiate, while Boss Lin, as the entrusting party, has obviously accepted Fang's intermediary service and met with the owners to negotiate after seeing the house satisfactorily. Then, according to the above legal provisions, the intermediary contract between the intermediary and the principal has been established, and the intermediary and the principal will be bound by the provisions of the Contract Law on the intermediary contract and the rights and obligations agreed by both parties. Lin Maogen does not need to bear legal responsibilities such as breach of contract because he has not signed a written intermediary agreement.
Myth 2: Even if the intermediary contract is established, but the party did not finally participate in the signing of the house sales contract, and there is no or no proof that the two parties signed the "no skipping" clause, can Mr. Lin not pay the remuneration or bear the liability for breach of contract?
Article 427 of the Contract Law stipulates that "if the broker fails to facilitate the establishment of the contract, he may not ask for remuneration, but may ask the client to pay the necessary expenses for engaging in the intermediary activities". Boss Lin jumped out and said that the final house sales contract was not signed by Fang, which did not meet the conditions for the broker to facilitate the establishment of the contract, so he should not pay Fang. But this interpretation is obviously a misunderstanding.
In China's contract law, the intermediary contract is a well-known contract independent of the entrustment contract, but according to scholars' point of view, the intermediary contract is a special entrustment contract. Article 424 of the Contract Law defines one party to an intermediary contract as the "principal", which indirectly emphasizes the entrusted nature of the intermediary legal relationship. Article 966 of the Civil Code (Draft), which is about to be implemented, also directly stipulates that if there are no provisions in this chapter, the relevant provisions of the entrustment contract shall be applied by reference. The connection between the two contracts is obvious.
Article 4 10 of the Contract Law and Article 933 of the Civil Code (Draft) both stipulate the right to terminate the entrustment contract at will. However, while stipulating that the parties to the entrustment contract have the right to terminate it at will, it is also stipulated that if the other party suffers losses due to the termination of the contract, it shall compensate the direct losses except the reasons not attributable to the parties. If it is a paid entrustment contract, the rescission party shall compensate the other party for the direct losses and available benefits. "Skipping the bill" means that the buyer no longer performs the intermediary contract with the original intermediary, but chooses to sign the sales contract independently or entrust other intermediaries to sign the sales contract. After the signing of the sales contract, the intermediary contract between the buyer and the original broker can no longer be performed, which can be regarded as the buyer's right to terminate the intermediary contract with the original broker at will. The legal consequences of the actor's exercise of arbitrary cancellation right shall compensate the broker for the direct losses and the loss of available interests.
Moreover, Article 965 of the Civil Code (Draft), which is about to be implemented, clearly stipulates: "After accepting the services of the broker, the client shall pay remuneration to the broker if he directly enters into a contract by taking advantage of the trading opportunities or media services provided by the broker." The Civil Code (Draft) raised the right of the intermediary to ask for remuneration after "jumping the bill" to the legal level, which greatly strengthened the protection of the intermediary. Even if there is no agreement, the intermediary can still ask the customers who skip the order to pay the intermediary remuneration. The provisions of the Civil Code (draft) are expected to make intermediaries feel helpless in the face of "jumping orders", and the value of intermediary services will be better protected and recognized. Obviously, this will also greatly benefit the long-term development of the intermediary service industry. In the future, if boss Lin "jumps the bill" again, he can't escape the responsibility just by saying "we didn't sign the contract and we have to pay for the intermediary services they enjoyed".
In addition, in reality, some intermediaries also signed a "house inspection confirmation" with the buyer, indicating that "jumping orders are prohibited". In judicial practice, it is generally recognized that the clause of "no jumping ticket" is effective, and the intermediary is supported to hold the defaulting party liable for breach of contract with the clause of "no jumping ticket".
Misunderstanding 3, do intermediaries with non-exclusive housing information have the right to claim that "jumping orders" constitutes a breach of contract?
In view of the plot of "jumping orders" in the play, many legal persons believe that as long as the listing information is non-exclusive, the buyer can choose freely and need not bear the liability for breach of contract caused by "jumping orders".
In fact, whether the exclusive house is not an important element in the review of the exemption case for breach of contract is only because the exclusive house is more convenient for the court to judge whether the seller has used the house information of the intermediary company than the non-exclusive house, only from the perspective of judicial convenience. However, it cannot be considered that there is no use of intermediary company housing information without exclusive housing.
As mentioned above, the basis of the claim of the "jump order" liability is based on the civil liability stipulated by law, and it can also be based on the "jump order" liability for breach of contract set by the intermediary and the entrustment in the intermediary contract. Whether it is an exclusive house or not, as long as the intermediary has evidence to prove that the client has accepted the intermediary's services and made use of the trading opportunities or media services provided by the intermediary, the intermediary has the right to ask the client for remuneration and/or reasonable expenses. Furthermore, if the intermediary agency has sufficient evidence to prove that the house information or service it provides is different from the intermediary agency that the buyer finally pays, the buyer has the right to claim compensation and reasonable expenses from the buyer based on the personalized information or service. In addition, if the intermediary has evidence to prove that the buyer colluded maliciously with the finally selected intermediary, or reached an intermediary contract at an obviously unreasonable low price, and the intermediary deliberately evaded the obligation to pay the intermediary, the intermediary can also claim compensation from the buyer.
Such as "tube? In Yan Shu, it is said that "if you are sincere, there is a knot in the world". In the scene of real estate transaction, a benign positive cycle needs enough real supply and demand information and quality-guaranteed brokerage services to make decisions on selling and buying houses and promote safe transactions. At the same time, consumers need to have a higher awareness of quality intermediary services and recognize the value of quality brokers. It is of great practical significance for the development of intermediary industry to clarify the claim basis of "jumping orders" liability. As Aunt Xu, the man who lives in Anjia, said, the real estate agent is not selling a house, but the future of the family. In this era, real estate agents have the opportunity to see different people's different life choices at different stages of life, and they can also use their professional qualities and professional abilities to gain insight into and meet customers' deep needs, help customers reach deals and create value. In fact, this is a very interesting and meaningful career. I hope that readers who have read An Jiahe's article can avoid misunderstanding the legal responsibility of "jumping tickets". (Author: Seinfeld)
This article comes from Economic Daily-China Economic Net.