Real estate perspective, the third party "work to house" agreement can not be performed when the creditor relief approach analysis.
Published:
2024-03-12
The contractor (creditor) and the contractor (debtor) and its affiliated company (third party) agreed to compensate the contractor with multiple houses of the affiliated company at a certain price to replace the contractor's obligation to pay the project payment as agreed in the construction contract. After the third party's property was mortgaged, one house sold, confiscated by the government and other reasons, did not actually sign any property to the creditor, the creditor should take what kind of litigation ideas to maximize the protection of the realization of their own claims?
The contractor (creditor) and the contractor (debtor) and its affiliated company (third party) agreed to compensate the contractor with multiple houses of the affiliated company at a certain price to replace the contractor's obligation to pay the project payment as agreed in the construction contract. After the third party's property was mortgaged, one house sold, confiscated by the government and other reasons, did not actually sign any property to the creditor, the creditor should take what kind of litigation ideas to maximize the protection of the realization of their own claims?
1. the feasibility of requesting the third party to continue to perform the work-to-house agreement
1, in the context of mortgage analysis:The commercial housing that has been mortgaged to other parties before the signing of the work-to-housing agreement is in a state of non-sale of mortgage, objectively unable to go through the online signing procedures, and the mortgage registration involves the rights of the mortgagee, the court also has no right to decide to require the mortgagee to go through the mortgage release procedures, so the feasibility of the application to be supported is low;
2. Analysis in the context of government confiscation:The Housing and Construction Bureau made an administrative penalty decision to confiscate unsold buildings and structures on the ground under the name of a third party. Although the administrative counterpart has the right to file a reconsideration or lawsuit for the confiscation decision, the execution of the confiscation decision will not be stopped during the reconsideration and lawsuit period. Therefore, it is less feasible for the court to decide to continue to go through the online visa and transfer procedures for the confiscated properties;
3, in the context of one room two sell analysis:For the real estate that the third party has already sold one house and two houses, under normal circumstances, referring to the document spirit of the nine people's minutes, under the condition that the third party has already handled the online signing or even delivery of the house for the outsider, it is objectively impossible to continue to perform the agreement with the creditor, and the feasibility of the court ruling to require the continued performance, handling the online signing and transfer of ownership is relatively low.
The feasibility of 2. requesting the original debtor to pay off the arrears of the project.
The work-to-housing agreement is a concrete practice of debt-to-property, and the debt-to-property agreement is a contract, since the two sides mean the same, not to the creditor to receive the debt as the establishment of the contract elements. Debt-in-kind agreements can be classified as follows:
In this case, the period of performance of the original debt has expired, the two parties signed a debt-in-kind agreement has not yet been registered for the transfer of property rights, the Supreme Court believes that unless the debt-in-kind agreement expressly agreed to renew the debt (the old debt is eliminated by the establishment of the new debt), otherwise the default is for the new debt settlement type of debt-in-kind debt agreement (new debt and old debt exist at the same time). As far as the new debt settlement agreement is concerned, whether the parties can choose to perform the new debt or the old debt, and whether the right to choose belongs to the creditor or the debtor, the current laws and regulations do not have any provisions. The Supreme Court gives a clearer view of the trial: unless the parties clearly agree, the creditor or the debtor does not have the right to choose, and should give priority to the performance of the new debt.
In this case, the new debt to be paid for the house could not be fulfilled objectively due to mortgage, one house and two sales, confiscation and other reasons, so the creditor could choose to request the original debtor to perform the old debt (to pay off the project arrears). However, in practice, the debtor who chooses to use the property of the related company to offset the project payment is often unable to pay off in cash, so although it is theoretically feasible, it is not recommended to perform the old debt as a creditor's claim.
3. the Feasibility of Requesting a Third Party to Bear the Liability for Breach of Contract in the Agreement of "Labor to House"
In practice, the "work-to-house" agreement jointly signed by the contractor, the contractor and its affiliated companies may be recognized as a commercial housing sales contract (this contract) or a real estate subscription agreement (appointment). If the "work-to-house" agreement is recognized as this contract, based on the relationship between the sale and purchase contract, the affiliated company that fails to perform the delivery obligation constitutes a fundamental breach of contract, and the contractor may be held liable for breach of contract, or may exercise the legal right of discharge, terminate the contract and claim damages. If the "work-to-house" agreement is identified as a subscription agreement (appointment), no matter the damages for breach of contract or the damages after the termination of the appointment contract are limited to the loss of opportunity (loss of reliance interest), excluding the available benefits (performance benefits), and the court cannot force the breaching party to enter into a sales contract or force the performance to continue.
The agreement is recognized as a commercial housing sales contract, and two conditions should be met: one is to have the main content of the commercial housing sales contract stipulated in Article 16 of the ''Commercial Housing Sales Management Measures''; the other is that the seller has received the purchase price or issued the house payment as agreed. receipt. In practice, if the agreement signed by the parties meets the above conditions, it is feasible for the creditor to request the third party to bear the liability for breach of contract based on the relationship between the commercial housing sales contract. However, the agreement also has the risk of being identified as a real estate subscription agreement. Once it is identified as a subscription agreement, the other party bears the liability for breach of the appointment contract, so it is difficult to fully protect the creditor's claims.
4. a third party is jointly and severally liable for the original debt if it is added to the debt in rem.
The third party and the original creditor debtor signed a debt-to-debt agreement, the transfer of ownership of the goods after the original creditor's debt is eliminated, the essence of which should belong to the third party directly with the creditor to reach a debt that does not exempt the original debtor's repayment obligations and assume all repayment obligations. In the event that the settlement of debts in kind cannot be achieved, the third party shall still be jointly and severally liable for the debts it voluntarily joins through other means.
Article 552 of the Civil Code provides that if a third party agrees with the debtor to join the debt and notifies the creditor, or if the third party expresses its willingness to join the debt to the creditor and the creditor does not expressly refuse within a reasonable period of time, the creditor may request the third party to assume joint and several debts with the debtor within the scope of the debt it is willing to assume. The addition of debt requires a third party to have the meaning of joining the debt or sharing the debt with the debtor.
In the debt repayment agreement, the third party, as the subject of rights and obligations other than the original creditor's rights and debts, is willing to transfer all its things to the original creditor to offset the debts of others. This agreement itself is the intention of the third party to repay the debts. Based on this, the creditor also generates reasonable trust for the third party to repay the debts, thus it can be determined that the third party has the intention to join the debts. The legal consequence of joining the debt is that the third party is jointly and severally liable for the debt to be joined, while the mortgage is only a form of liability, and when this form of settlement cannot be achieved, the third party must still bear the liability for joining the debt in other forms.
5. Summary
The contractor, the employer and the third party agree to compensate the project fund with the third party's real estate, which cannot be performed objectively due to the mortgage of the real estate, the sale of one house and two sales, the government confiscation and other reasons. At this time, the creditor generally has two remedies: one is to require the third party to bear the liability for breach of contract that the new debt cannot be performed, but there is a risk that the creditor cannot get full compensation due to the agreement of the agreement of the agreement of the agreement of the agreement of the contract; second, the original debtor may be required to perform the old debt (payment of the project), but in the case of the original debtor has been insolvent, the creditor may consider the third party to be jointly and severally liable for the old debt in accordance with the idea of the addition of a third party to the debt in kind.
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