Author: Zeng Xiaowei Intern Lawyer (Article source: Sichuan Ruiding Law Firm, pay attention to the public number: Ruiding lawyer)
Xiao Li is an employee of a company in a certain place and intends to live and work here for a long time. As the saying goes, without a home, there is no stable home. Hometown can not accommodate the soul, other places can not accommodate the body, in order to let the "flesh" have a place to live, Xiao Li plans to buy a house of his own in the city where he works.
The picture comes from the Internet, and the infringing contact is deleted
One day, Xiao Li followed his parents and relativeS A to the intermediary to see the house, and had a certain good feeling for a certain set of second-hand houses, because the price was not negotiated, it was not settled. The next day, on the way back to their hometown by Li's parents, Li's relative A, out of kindness, found another intermediary to negotiate the price of the house. Relative A felt that the price was appropriate and transferred the intermediary fee to the intermediary, and contacted Li's parents by phone to let him transfer the deposit, otherwise the intermediary fee could not be refunded. Under the fire, Li's parents turned the deposit over. And by relative A generation Li signed the "House Sale and Purchase Contract".
Later, due to some factors, Li did not have much willingness to buy this house, and only then did he know that the family had paid a deposit and signed the house sale contract on behalf of his relatives.
According to the provisions of Article 161 of the Civil Code, a civil subject may carry out a civil juristic act through an agent, and in accordance with the provisions of the law, the agreement of the parties or the nature of the civil juristic act, a civil juristic act that should be carried out by himself may not be represented. Article 162 provides that a civil juristic act carried out by an agent in the name of the principal within the scope of the agent's authority shall take effect on the principal. Article 163 provides that the entrusted agent exercises the power of agency in accordance with the entrustment of the principal. Article 165 provides that where the authorization of the entrusted agent is in writing, the power of attorney shall indicate the name or title of the agent, the matters to be represented, the scope of authority and the time limit, and shall be signed or sealed by the principal.
Accordingly, Relative A was not fully authorized by Li, and his act of agency was invalid.
According to the provisions of Article 171 of the Civil Code, if a contract signed by an agent without the authority in the name of the principal is not retroactively recognized by the principal, it shall not be effective against the principal and the actor shall bear legal responsibility; however, if the principal has begun to perform the obligations of the contract or accept the performance of the counterparty, it shall be deemed to be a retroactive recognition of the contract, and the contract shall have legal effect on the principal.
According to this, Li's parents performed the obligation to pay the deposit on behalf of the contract, is it a retrospective recognition of the contract?
The author believes that Xiao Li, as an adult, has full capacity for civil conduct, and the act of his parents paying money on behalf of others cannot be regarded as retroactive recognition, and he should have a power of attorney on behalf of others, no matter how close he is, he should have a power of attorney, otherwise, it is invalid for the principal.
In real life, because the agent is closely related to the identity of the agent and the obligations of the contract have been fulfilled, the other party bites the reason that it believes is justified and reasonable, and refuses to give in to the other party. In this case, the deposit has been paid, and it is impossible to force it. It is not so easy to persuade the other party to return the deposit. Taking the litigation procedure, the parties are tired of litigation based on the complexity of the legal procedures.
Then, the first step is consultation, more or less "meat"; the second step is to go through proper litigation procedures, according to the provisions of the Civil Code, there is no legal basis, and the benefits obtained at the expense of others are unjust gains, and the right holder has the right to demand return.
An intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude the contract or provides the intermediary services for concluding the contract, and the principal pays remuneration. When providing intermediary services, the intermediary shall truthfully report to the client on matters related to the conclusion of the contract.
In this case, it is a "housing sale and purchase contract", according to some local housing purchase restriction policies, the intermediary, as a professional service personnel, should be familiar with the relevant policies and have the obligation to inform the buyer.
According to Article 962 of the Civil Code, if the intermediary deliberately conceals important facts related to the conclusion of the contract or provides false information, harming the interests of the client, the intermediary shall not request remuneration and shall bear the liability for compensation if the intermediary knows that Xiao Li is not present in person and that Relative A has not been authorized.
There is still one fact in this case that has not been mentioned in the above facts, that is, when Relative A did not know what the reason was, he signed his name in the position of the main buyer of the "House Purchase Contract", while Xiao Li signed it on behalf of Relative A at the joint buyer.
Buying and selling a home is a top priority, and some people have been fighting for it all their lives. Even if Xiao Li does not bear the corresponding responsibility in this case, how should the signature of Relative A explain that Relative A is out of good intentions to help, and cannot tear his face and ignore everything, then the relationship may deteriorate and there is no face to face.
Therefore, when entrusting others to do things, especially those who are closely related to themselves, they must have a clear authorization, and once a dispute arises, it is difficult for all parties to clarify, and the small will lose money, and the large will hurt harmony.