I. 1. Typical case:
2013131Ms. Song and her daughter signed a commercial housing sales contract with the developer, stipulating that the mother and daughter would buy a set of commercial housing at the price of120,000 yuan. 20 15, the real estate company delivered the house according to the contract, but did not go through the formalities of property right transfer registration. In 20 16, a second-hand house sales contract was signed with Ms. Song through an intermediary, and it was agreed to buy the house at130,000 yuan. In view of the fact that Ms. Song had not obtained the house ownership certificate when signing the contract, the two parties signed a supplementary agreement, because the house ownership certificate is still being processed, and it is temporarily impossible to handle the transfer procedures. Both parties agree that the latest transfer time is within 6 months from the date of signing this agreement. In case of breach of contract, a penalty of 2.6 million yuan shall be paid. After signing the contract, Ms. Song was paid a deposit of 500,000 yuan. 20 17 because Ms. Song failed to pass the qualification check for purchasing a house, she could not go through the property registration formalities. Ms. Song could not transfer the house to Xiao Peng. After learning of the above situation, Ms. Song contacted at the first time, requesting to cancel the contract and refund the deposit. Xiao Peng refused to accept the deposit returned by Ms. Song, but asked Ms. Song to compensate the agreed liquidated damages. Ms. Song argued that when buying a house, the developer had told her that she was qualified to buy a house, and she should not bear the responsibility that the house could not be transferred. The two sides failed to negotiate, so they filed a lawsuit.
2. Court decision
After hearing the case, the court held that the house sales contract signed with Ms. Song was the true intention of both parties and should be valid without violating the mandatory provisions of laws and administrative regulations. In this case, Ms. Song, as the seller of the house, was not careful to sign a house sales contract with the house before she registered and obtained the ownership certificate of the house involved. Now Ms. Song claims that the house involved in the case cannot be registered in her name due to reasons outside the case, which leads to her inability to register the house involved in the case in her name, and claims that she does not bear the liability for breach of contract on this ground, which is unfounded in the law. As for the amount of liquidated damages, Ms. Song finally decided to compensate for the loss of RMB 501.28/1.31000 because she failed to provide sufficient evidence to prove her loss, considering that only paying the down payment during the performance of the contract would not seriously affect her search for other signing opportunities, and taking into account other factors such as faults.
Second, the main points of understanding the law:
1, the contract is relative. Breach of contract caused by a third party is not a legal reason for exemption. Article 593 of the Civil Code stipulates that if one party breaches the contract for the reason of a third party, it shall be liable to the other party for breach of contract according to law. Accordingly, when the breach of contract is caused by a third party, it can only be resolved separately according to the basic legal relationship with the third party.
2. Real estate that has not been registered according to law and obtained ownership certificate shall not be transferred. Article 38 of People's Republic of China (PRC) City Real Estate Management Law stipulates that real estate that has not been registered according to law and obtained ownership certificate shall not be transferred. In this case, Ms. Song and both are aware of the fact that the house has not handled the ownership certificate. Therefore, both parties are at fault for the loss.
3. The liquidated damages can be adjusted according to law, but the adjustment must be based on actual losses. In practice, no matter how the two parties agree on liquidated damages, the court needs to review the actual losses caused by the breach of contract on the premise that the parties raise objections, and make appropriate adjustments accordingly, so as to ensure that the liquidated damages can fully compensate the actual losses of the observant party without making the defaulting party get too much benefits from it.