The liability for breach of contract in the contract of the sale of commercial housing.

basic case]

Plaintiff: A

Defendant: Company B

On June 10, 2000, plaintiff a and defendant B signed a "commercial housing sales contract" (auction house), agreeing that plaintiff a will purchase a house developed and constructed by defendant B and located in no 1104 of a building in downtown Jinan, with a construction area of 126 square meters and a total house payment of 358760 yuan. the payment method is a down payment of 107628 yuan, and the rest is a bank mortgage loan. the bank mortgage loan will be completed within 30 days after the contract is signed, defendant B Company delivered the qualified commercial housing to plaintiff A before March 31, 2001. Defendant B Company guaranteed that plaintiff A would obtain the real estate certificate before the end of October 2001, and did not agree on the liability for breach of contract that Defendant B Company should bear when plaintiff Party A failed to obtain the real estate certificate.

After the contract was signed, plaintiff a paid all the house purchase money to defendant B company according to the contract. defendant B company issued a house purchase invoice to plaintiff a. on April 30, 2001, both parties went through the formalities for the handover of commercial housing, but plaintiff a had not obtained the real estate certificate of commercial housing by the end of April 2005.

During this period, the plaintiff A went to Jinan Housing Administration Bureau to inquire about the situation of the real estate license in the residential area. The reply was that the developer of the residential area, the defendant B Company, had not yet gone to the Housing Administration Bureau for initial registration. It was learned in the lawsuit that on April 27, 2005, Defendant B Company completed the initial registration of a commercial house in a residential area it developed. Defendant B Company has not notified Plaintiff A to handle the real estate certificate since the handover of the commercial housing until before the lawsuit.

For this reason, the plaintiff A filed a lawsuit with the people's court of a district in Jinan on May 16, 2005, asking the defendant B company to handle the real estate certificate for it within a time limit, pay liquidated damages for the overdue certificate and bear all the case acceptance fees.

court judgment]

After hearing, a district people's court in Jinan found that a's lawsuit request was wrong, because the subject of the obligation to handle the real estate certificate was the housing management department. it was wrong for a to require company B to handle the real estate certificate for it within a time limit, and it wanted to reject the plaintiff's lawsuit request. in view of this, a applied to withdraw the lawsuit, and then filed a new case to change the lawsuit request as follows: to require defendant company B to pay liquidated damages for overdue license and bear all the case acceptance fees.

Defendant B's defense reasons are mainly as follows: 1. the contract does not stipulate that our company is responsible for handling the real estate certificate for A, our company should not bear the responsibility of handling the certificate within the time limit; 2., even if our company should bear the liability for breach of contract for overdue accreditation, the contract stipulates that Party A shall obtain the real estate certificate before the end of April 2001. By May 16, 2005, the case has exceeded the legal limitation of action. Please ask the court to reject the plaintiff Party A.

The court found that a contract established in accordance with the law is legally binding on the parties, and the parties shall perform their obligations in accordance with the agreement and shall not modify or terminate the contract without authorization. The contract signed between the plaintiff A and the defendant B company does not violate the mandatory provisions of laws and administrative regulations, and shall be a valid contract. According to the regulations on the registration of housing ownership, if the obligee who purchases the newly-built commercial housing goes to the housing authority to register the property rights, it must be based on the developer's initial registration of the developed real estate. According to Article 18 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, within the time limit stipulated in the commercial housing sales contract, if the plaintiff A fails to obtain the house ownership certificate due to the reason of the defendant B company, the company B shall bear the liability for breach of contract. In this case, the defendant B company did not complete the initial registration of the development of commercial housing until April 27, 2005, and the defendant B company shall bear the liability for breach of contract for handling the certificate within the time limit.

Since the two parties did not agree on the liability for breach of contract for overdue certification in the contract, according to Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes, if the contract does not agree on liquidated damages or the amount of loss is difficult to determine, It can be calculated according to the total amount of house purchase money paid and referring to the standard of calculating and collecting overdue loan interest for financial institutions stipulated by the people's bank. Defendant B argued that even if the defendant's actions constituted a breach of contract, the breach was nearly four years from April 30, 2001 to April 27, 2005, when the plaintiff sued, exceeding the statutory limitation period. The court held that the defendant's breach of contract lasted from May 1, 2001 to April 27, 2005, and the calculation of liquidated damages should start from May 1, 2001 to April 27, 2005, while the plaintiff did not sue to the court until May 16, 2005. There was no evidence to prove that the defendant had claimed rights before the prosecution. The authority of liquidated damages within two years before the prosecution exceeded the limitation of action, and the court supported it. To sum up, the judgment is formed: Company B shall pay liquidated damages to A within 10 days from the effective date of the judgment (based on the house price of 358760 yuan, calculated from April 26, 2003 to April 27, 2005 with reference to the standard for calculating and collecting interest on overdue loans by financial institutions stipulated by the People's Bank of China).

Defendant B Company did not appeal after receiving the judgment.

case evaluation]

This case involves the following legal issues:

1. on the subject of the obligation to handle the certificate of ownership of the house.

Regarding the subject of the obligation to handle the registration of housing ownership, Article 18 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes is inconsistent with Article 33 of the Regulations on the Administration of Urban Real Estate Development and Operation, resulting in different understandings of the subject of the obligation to handle housing ownership certificates.

In the case of inconsistency of the above provisions, the general application of real estate certificate needs to complete the initial registration (filing work) by the developer, the application by the buyer to the housing management department, and the examination and issuance of materials by the housing management department, that is, the "joint behavior of the developer, the buyer and the housing management department" for handling the real estate certificate. Therefore, it is impossible to accurately define the subject of obligation for handling the real estate certificate.

2. the issue of the responsibility of the subject of the three-party obligation to handle the real estate certificate.

The tripartite behavior of handling the real estate certificate has a certain relevance and sequence. Only when the former work is completed can the following procedures be started or the next work can be carried out.

1. After the developer completes the initial registration (filing) of the house and fulfills the obligation of notification, he shall not bear the responsibility of overdue accreditation.

According to the provisions of Article 16 of the Measures for the Administration of Urban Housing Ownership Registration issued by the Ministry of Construction on August 15, 2001, if the right holder of the purchase of newly-built commercial housing goes to the competent real estate department for property right registration, it must be based on the initial registration of the real estate developed by the developer. At the same time, the developer still has to fulfill the corresponding obligation to inform or notify the obligation to complete the certificate. Only when the above two tasks are completed, the developer will not bear the liability for breach of contract for overdue accreditation.

2. After knowing the notice of the developer, the buyer shall apply to the housing authority for the registration of housing ownership, and shall no longer bear the responsibility of applying for the certificate within the time limit.

After the developer completes the above two tasks, the buyer should apply to the housing management department to handle the registration of housing ownership transfer, so that he will no longer bear the responsibility of overdue certification.

3. After receiving the application from the buyer, the competent housing department shall review the filing materials of the developer to examine whether it meets the requirements for issuing the certificate, and shall no longer bear the responsibility for issuing the certificate within the prescribed time limit (Note: the responsibility belongs to the administrative responsibility, not the responsibility for breach of contract).

As for the developer who has completed the procedures for handling the certificate (filing work), the buyer applies for the registration of the transfer of ownership. Due to the housing management department's failure to handle the certificate on time or delay in handling the certificate, this belongs to the government's inaction, and the buyer can file an administrative lawsuit, which is different from the developer's liability for breach of contract.

It is precisely because of the different responsibilities of the above-mentioned subjects, when the plaintiff A initially filed a case, the court held that the plaintiff's claim was wrong.

3. whether the defendant B company should bear the liability for breach of contract in this case.

The above analysis, the processing of real estate certificate involved in several obligations of the subject should perform the procedures and work carried out and the limits of responsibility. Defendant B Company agreed in the contract to "ensure that Plaintiff A obtains the real estate certificate before the end of October 2001". This agreement does not specify the subject of the obligation to handle the real estate certificate. It can only be understood according to the common behavior of the three parties in handling the real estate certificate. According to the contract, Defendant B Company shall complete the initial registration (filing) of the house by the end of October 2001 at the latest, however, Defendant B Company did not complete the initial registration (filing) of the house until April 27, 2005, and did not notify Plaintiff A after completing the filing work, and shall bear the liability for breach of contract for overdue accreditation according to law.

In this case, the "Commercial Housing Sales Contract" (auction housing) does not stipulate the liability for breach of contract for overdue issuance. According to Article 18 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes", the contract does not stipulate liquidated damages or If the amount of loss is difficult to determine, it can be calculated based on the total amount of house purchase money paid and the standard for overdue loan interest calculated by financial institutions stipulated by the People's Bank of Chinese.

4. whether there is a statute of limitations on the right to claim liquidated damages for overdue certification.

According to Article 135 of the General Principles of the the People's Republic of China Civil Law, the limitation period for requesting protection of civil rights from the people's court is two years, unless otherwise provided by law. There should be a statute of limitations for the right to claim liquidated damages for overdue certification. In practice, some buyers can not obtain the real estate certificate for a long time after buying a house. They should pay attention to the provisions of the two-year limitation period. The trial of this case takes into account the two-year limitation of action, that is, the liquidated damages exceeding the limitation period are not supported.