Real estate perspective: in the dispute of commercial housing sales contract, how should the developer's "clerical error" be determined, and whether it is bound to bear the adverse consequences?
Published:
2021-05-11
A clerical error is a mistake that often occurs in our personal daily life. In the process of commercial housing transactions, developers will often cause the content of the contract text to differ from the actual delivery of the house due to clerical errors, such as accidentally writing the number of elevators Wrong or wrong height, etc., and when these clerical errors cause disputes between developers and buyers, what are the considerations of judicial adjudication? Should the developer bear the adverse consequences? Here, we will resolve it for you through the case.
As far as civil legal relations are concerned, a certain legal act is based on the expression of will. If the expression of will cannot be established, the legal act will not have legal effect, and Article 147 of the the People's Republic of China Civil Code stipulates that "the perpetrator has the right to request the people's court or arbitration institution to cancel the civil legal act based on major misunderstanding." When the developer's "clerical error" does lead to a misunderstanding of the variety, quality and quantity of commercial housing, which makes the buyer's behavior contrary to his own meaning and causes heavy losses, it is in line with a major misunderstanding, and the contract may be revoked. In view of this situation, the author will not repeat it. The focus of this paper is whether the developer is bound to bear the adverse consequences in practice when there is a "not serious case" and "a clerical error due to a writing error. Does the court have any specific criteria for the determination of the "clerical error?
Case 1: Combined with other data to consider whether it constitutes a clerical error
Case No.:(2020) Zhejiang 0303 Minchu No. 3352
Trial Court: Longwan District People's Court of Wenzhou City, Zhejiang Province
Focus of dispute: the number of balconies in the commercial housing involved in the case delivered by the defendant is inconsistent with the agreement.
Court view: the purchase of commercial housing as a major matter of living needs and family expenses, generally by the buyers through consideration of location, price, house type and other factors, combined with publicity materials building books, model houses, house type floor plans and so on to make a purchase intention. The house type with two balconies shown in Annex I of the contract is the same as the registered four-seventeen floor plan and the floor plan in the building book, and the defendant has clearly indicated that the balcony area in the model house is publicized at the entrance of the model house and the actual decoration balcony area of the model house. Now both parties have no dispute over the actual construction area of the commercial house in accordance with the contract. Based on the above facts, although the "balcony" is not marked in Annex I of the contract, the contents of the "4th-17th Floor Plan" filed in combination with the building document, the contents of the "4th-17th Floor Plan" filed and the tips of the model house are sufficient for the plaintiff to make a correct judgment on the balcony area in Annex I of the contract. The plaintiff should be aware of the fact that the commercial house involved in the case sold by the defendant contains two balconies, the plaintiff's signature confirmation on the attached drawing of Annex I "House Plan" of the contract is confirmation of the existence of two balconies in the commercial house involved in the attached drawing. The contract law clearly stipulates that the parties shall abide by the principle of good faith in exercising their rights and performing their obligations. Although the commercial housing sales contract signed by the plaintiff and the defendant stipulates that "the commercial housing has one balcony", according to the evidence of the whole case and common sense, it can be determined that the agreement of "one balcony" is not the true intention of the parties, so it should be regarded as a clerical error of the defendant. The two parties actually agree that the number of balcony should be two, it is also mutually confirmed with the drawings of the contract and the facts suggested by the relevant floor plans and model houses. The defendant claimed that there was a written error in the reply of "balcony 1" stipulated in the contract, which was accepted by the court.
Case 2: Determining whether it constitutes a clerical error based on realistic writing practices
Case No.:(2016) Gui 05 Min Zhong No. 748
Trial Court: Beihai Intermediate People's Court of Guangxi Zhuang Autonomous Region
Controversy focus: balcony material "steel" for "aluminum", whether the breach of contract
Court view: The "Commercial Housing Sales Contract" and its annexes signed by the appellant and the appellee are the true intentions of both parties and do not violate the mandatory provisions of laws and administrative regulations. The contract is legal and valid. Both parties shall fully perform their obligations in accordance with the agreement. Before signing the sales contract, the balcony railing material involved in the case has indeed been reviewed and filed as square steel, and the project has been completed and accepted. However, according to the agreement in Article 8 of Annex III to the contract, the material of the balcony railing of the house involved should be aluminum alloy, while the material of the railing actually used by the appellee is square steel, which is inconsistent with the agreement in the contract. The appellee claimed that it was a clerical error, but when signing the contract with many owners such as the appellee, he knew that the material of the balcony he sold was square steel was square steel, while the aluminum alloy and the square steel were different from the square steel, the appellee did not agree to be aluminum alloy when signing the contract with the appellant in this case, but agreed to be the same when signing the contract with many owners. The appellee also considered that the balcony was made of aluminum alloy before signing the house sales contract with the appellee. Therefore, the appellee claimed that the agreement was a clerical error and was not valid. Although the appellant received the house and signed the "Owner's House Acceptance Form" and the "Confirmation of Receipt Articles", it only indicated that it confirmed the current situation of the house at the time of receipt, and it was not regarded as a correction to Article 8 of Annex III to the "Commercial Housing Sales Contract. Because the material of the balcony railing delivered by the appellee was inconsistent with the contract, his behavior constituted a breach of contract. The court of first instance found that there was nothing improper, and the appellee's defense was not established.
Case 3: A clerical error occurs but does not affect the efficiency and the actual use of the owner
Case No.:(2019) Wan 01 Min Zhong No. 8089
Trial Court: Hefei Intermediate People's Court of Anhui Province
Focus of dispute: the entrance and exit of the warehouse are inconsistent with the actual contract agreement.
The court's view: the existence of the garage entrance on the south side of building E12 in dispute in this case has no impact on the quality of the commercial housing involved in the case and its use function. moreover, at the end of August 2018, after various efforts, poly company reopened the garage entrance and exit between building E11 and building E12, building E13 and building E15 in the residential area involved in the case. If Chu Min and Ji Yun think that the entrance and exit of the garage on the south side of E12 building marked on the general plan of the plan does affect their life, traffic and diversion of people and vehicles, they should also provide relief through other channels after receiving the house. The refusal of the house does not conform to the contract and does not constitute a reasonable reason for refusing the house. Therefore, their application requires Poly Company to bear liquidated damages for overdue delivery, which has no contract and legal basis, this is not supported by the law.
Case 4: A clerical error by both parties, or an acknowledgement by both parties of the clerical error
Case No.:(2018) Yue 01 Min Zhong No. 4051
Trial Court: Guangzhou Intermediate People's Court of Guangdong Province
Focus of dispute: the agreed delivery time of the house is inconsistent with the actual situation.
The court ruled on the timing of the delivery of the house. Article 13 of the contract stipulates that wanxinda company shall deliver the house to Jian star and Li Yan before December 31, 2015. since both parties have not signed the contract at that time, both parties confirmed that it was a clerical error, and both parties failed to reach an agreement on when to deliver the house during the trial. Jian Star and Li Yan said they bought the current building, and the date of signing the contract was the date of delivery of the house. However, the contract did not agree on this, and the two parties signed a commercial housing presale contract, not an existing housing sales contract. Unless there is special agreement in the commercial housing presale contract, the time of signing the contract is generally not the delivery time of the house, and most of the house payment for Jian Xing and Li Yan has not yet been paid at that time. Therefore, the court of first instance did not accept Jian Xing and Li Yan's opinion that the time of signing the contract is the delivery time of the house. Wanxinda Company said that the date of payment of the house price is regarded as the date of delivery of the house, which is more in line with the transaction practice and the rules of daily life. Therefore, in the absence of an agreement between the two parties on the delivery time, the date of payment of the house price by Jian Xing and Li Yan is December 22, 2016 as the delivery time of the house.
"Summary" To sum up, in judicial practice, developers can use "clerical errors due to human factors" as a defense, and then claim that they should not bear adverse consequences. Through case analysis, the identification of clerical errors generally has the following requirements, the author summarized:
Under the premise of meeting one or both of the above-mentioned circumstances, the probability of being found by the court to be in line with the clerical error is greater, which may be exempted from part or all of the responsibility, and the developer does not necessarily bear the adverse consequences because of the clerical error.
"Reminder" in the purchase contract, although the buyer needs to pay attention to the obligation, but because the contract provider is the developer, the developer's responsibility and obligation is greater, so the legal level is more inclined to protect the party who accepts the contract. Therefore, the developer should pay more attention to improve their contract text and pay attention to the details to avoid unnecessary disputes caused by clerical errors.
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