There is a decorative wall outside the house.
The plaintiff in this case is the owner Du Mou and the defendant is the developer. At the beginning of 2065438+2007, the plaintiff Du Mou saw the defendant's propaganda materials about the development of a residential area and its aerial view. On March 3rd, 2065438, Kloc-0, the plaintiff and the defendant signed a letter of intent to subscribe, and paid the house price of 65438+ ten thousand yuan. 2065438+On June 25th, 2007, the plaintiff and the defendant signed a formal commercial housing sales contract. The content of the contract is that the plaintiff buys the building developed by the defendant.
When the house was handed over in April, 2065438+2008, the plaintiff found that the house delivered by the developer was inconsistent with the provisions of the publicity materials and their aerial views. The defendant built a decorative wall on the east side of the house purchased by the plaintiff. This wall not only affected the lighting and ventilation of the house purchased by the plaintiff, but also the painted wall of the balcony of the house purchased fell off in many places. The two sides failed to negotiate and told the court. During the trial, the defendant repaired the painted wall of the plaintiff's balcony. Therefore, the plaintiff gave up the claim for the defendant to repair the painted wall of the balcony.
The defendant argued that a residential area developed by the company was built in strict accordance with the procedures prescribed by law, and the publicity materials released by the company were invitations to offer, so they were not binding on the parties in a substantive sense. The company did not violate the contract, and the plaintiff's request to remove the decorative wall had no legal basis, requesting the court to dismiss the plaintiff's claim.
The court ruled that the decorative wall should be removed.
After the trial, the court held that the commercial housing sales contract signed by the original and the defendant was the true intention of both parties and did not violate the law, and its contents were legal and valid. Specifically determine the publicity materials and bird's eye view of the developer in the pre-sale of commercial housing in a residential area, as well as the explanation and commitment to the location and appearance of commercial housing. And it has a great influence on the conclusion of commercial housing sales contracts and the determination of housing prices. Publicity materials and bird's-eye view should be regarded as an offer. Although promotional materials and bird's-eye views are not in the commercial housing contract, they should also be regarded as the contents of the contract. Now the defendant has built a decorative wall on the east side of the commercial house purchased by the plaintiff without the plaintiff's consent. The wall affected the lighting and ventilation of the house purchased by the plaintiff, which violated the contract between the original and the defendant and should bear the corresponding liability for breach of contract. The plaintiff's claim conforms to the law and should be supported. The plaintiff voluntarily gave up the lawsuit requesting the defendant to repair the painted wall and granted it. The defendant's excuse is inconsistent with the law. The court ruled that the defendant removed the decorative wall above the horizontal line of the window sill of the living room on the east side of the house purchased by the plaintiff Du Mou within 15 days from the effective date of this judgment.
After the verdict, the developer filed an appeal. The reason is that the commercial house was designed by a legally qualified design unit and started construction only after being examined and qualified by the state supervision department. The drawings of the construction design unit are ranked first, and the purchase contract with the customer is ranked last. Developers also insist that promotional materials and bird's-eye view are just an invitation to offer. The developer demanded that the original judgment be revoked and the appellant's claim was rejected. The court of second instance dismissed the appeal and upheld the original judgment.
Is the promotional material an offer or an invitation to offer?
There are two key points in this case. The first is whether the promotional materials and bird's-eye view are an offer or an invitation to offer. The second point is whether the housing design approved by the statutory department can become the content of the contract between the two parties.
According to the contract law, an offer is an expression of intention to conclude a contract with others. An invitation to offer is to express one's intention to others and hope that others will make an offer to oneself. These two concepts are very important in contract law. An offer is an expression of one party's intention to conclude a contract with another party, and it is a legal act. Invitation to offer only induces others to make an offer to themselves. When the inviter withdraws the invitation, as long as it does not cause losses to the bona fide counterpart, the inviter will not bear legal responsibility.
In this case, the developer, as the seller of commercial housing, provided publicity materials and bird's-eye view of commercial housing development in a residential area when Du signed the letter of intent for subscription and determined the specific location of the purchased house, but did not show the design drawings of the building. Although the back of the purchase contract is attached with a schematic plan of the purchased house, it is not clear from the plan whether there is a decorative wall outside the window of the purchased house. In the publicity materials of the houses sold by the developers, the windows of the houses purchased by Du Mou are platforms without decorative walls. The contents reflected in the publicity materials have a great influence on Du Mou's choice of the specific location of the purchased house and the conclusion of the contract.
Article 3 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that the sales advertisements and publicity materials of commercial housing are invitations to offer. However, the explanations and commitments made by the seller on the houses and related facilities within the scope of the commercial housing development plan are specific, which have a significant impact on the conclusion of the commercial housing sales contract and the determination of the house price, and are regarded as an offer. Even if the explanation and commitment are not included in the commercial housing sales contract, they should also be regarded as the contents of the contract. If a party violates it, it shall bear the liability for breach of contract.
According to this provision, in this case, the developer's promotional materials and bird's eye view should be regarded as an offer. On this basis, Du promised and signed a contract with the company, and promotional materials and aerial views should be the contents of the contract. When the developer handed over the house, there was a decorative wall outside the east window. The decorative wall has indeed affected the ventilation and lighting of the buyer's house, which constitutes a breach of contract and should bear corresponding responsibilities.
As for the developer, he said that the house he built was legally approved and had legal and effective design drawings. Because the design was not presented at the time of signing the contract, and whether the design is legal or not has nothing to do with the fact that the ventilation and lighting of Du family are actually affected.
At the same time, because the design drawings have not been shown to Du Mou, they cannot be used as the content of the contract. The promotional materials and bird's-eye view presented by the developer are inconsistent with the actual delivery situation, which can only prove that the developer has made false propaganda on the existence of the decorative wall on the east side of the house purchased by Du Mou. In addition, according to the contract, the seller is obliged to truthfully inform the buyer of the impact on the quality or use function of the purchased commercial house. The decorative wall affected the use function of the house purchased by Du Mou, and the developer did not inform it, which also constituted a breach of contract.
In real life, many real estate disputes are caused by developers failing to disclose real information to buyers when developing commercial housing. Even after the design drawings are presented, the developer should inform the buyers of the design of the house in time, so that the buyers can decide whether to continue buying. Developers conceal what buyers should know on the grounds of trade secrets, which leads to disputes and lawsuits.