The buyer of the shop sued on the ground of dividing the sale, and the seller's legal opinion and court judgment

Proxy Opinion

Dear Judges,

Beijing Huatai (Zhengzhou) Law Firm accepted the entrustment of Henan Yueyue Real Estate Co., Ltd., the defendant in this case, and appointed me as the litigation agent in the case of Zhang Da v. Henan Yueyue Real Estate Co., Ltd. Housing Sale and Purchase Contract Dispute. In accordance with the facts and relevant legal provisions, hereby briefly issue the following representative opinion on this case:

1. The defendant did not have a breach of contract.

1. The plaza where the shops involved in the case (not consumer goods) are located has been built in 2015, and has been entrusted in 2015 to be operated and managed by Zhengzhou Youda Commercial Management Co., Ltd., the shopping mall has been opened in 2015, and the signing date of the Contract for the Sale and Purchase of Commercial Housing is January 10, 2021, on the day of signing, the defendant has instructed a large commercial company to deliver the shop to the plaintiff, and because of the contractual relationship between the plaintiff and the large commercial company due to the entrusted operation contract, the possession has been changed. That is, the defendant did not have a situation of late delivery.

2. The house where the shop involved in the case is located has applied for a real estate property right certificate, Yu (2018) Zhengzhou Real Estate Property Rights No. 0357319, the shop purchased by Zhang Da is included in the real estate; the total price of the shop is 936327 yuan, and the actual transaction price is 615,000 yuan, the price reduction is 30%, and enjoys the right to request repurchase, the huge preferential conditions are based on split sales, entrusted operation, exemption of three years of management fees, etc., combined with the actual situation of the shop, Zhang Da is aware of the situation of split sales;

3. In the case of divided sales, the planning department has approved it, and the real estate management department is reviewing, and the real estate property right certificate where the shop is located can also be changed;

4. The defendant mortgaged the shop before the date of signing the sales contract, and informed the case of the attached shop that the mortgage did not affect the validity of the contract, but only affected the mortgage loan of the shop, and the defendant never urged the plaintiff to pay the remaining purchase price, and the plaintiff never urged the defendant to release the mortgage registration time;

5. The plaintiff (adult) enjoys a huge discount on the purchase price, the right to request the defendant to repurchase, the right to obtain the income from entrusted operation, etc., and the agreement during the three-year period also shows that both parties and large commercial companies are very aware of the current situation of the shops, and cannot apply for a real estate property right certificate within three years, that is, the three years (January 10, 2021 to January 9, 2024) is the time limit for the plaintiff to waive the application for the real estate property right certificate from the defendant.

2. The plaintiff's claim for compensation from the defendant shall not be upheld.

1. The sales contract stipulates that there is a delivery time for the shop (delivered), but it does not stipulate the liability for breach of contract of dividing the sales situation, nor does it stipulate that the sales contract will not be recorded and registered, and it does not stipulate that the defendant should bear the responsibility for the existence of a mortgage on the shop;

2. Due to the current situation of the shop, the three parties are aware that the plaintiff itself also understands the benefits that may be obtained if it continues to perform the contract, but the rescission of the sales contract is proposed by the plaintiff, and it should bear the corresponding responsibility for the consequences of the termination of the contract (unable to obtain possible benefits), and the defendant not only does not claim the plaintiff's unilateral responsibility for rescinding the contract, but is also willing to agree to the rescission of the contract and voluntarily return the full amount of the purchase price paid by the plaintiff;

3. The plaintiff's claim should have a clear contractual agreement or legal provisions, and must not rely on subjective conjecture, and the reasons for the termination of the contract are completely attributed to the defendant, and the defendant is required to bear the possible benefits that may be obtained due to the plaintiff's voluntary abandonment, all of which are borne by the defendant, which is obviously without legal basis.

Please consider the above agency opinions and make a fair judgment in accordance with law.

agent:

Attached: The result of the court's judgment

This Court held that a contract formed in accordance with law is legally binding on the parties. The parties shall fully perform their obligations in accordance with the agreement. If one of the parties fails to perform its contractual obligations or the performance of contractual obligations is not in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. If one of the parties delays in performing its obligations or other breach of contract, so that the purpose of the contract cannot be achieved, the party may rescind the contract. In this case, the "Contract for the Sale and Purchase of Commercial Housing" signed by the plaintiff and the defendant was a true expression of the intentions of both parties, the content did not violate the provisions of the law, and both parties should perform their respective obligations in accordance with the contract. The plaintiff has delivered the first interest rate to the defendant as agreed, calculated from january 10, 2020 to the actual liquidation date. Regarding the plaintiff's demand that the defendant bear the liability for compensation of 316182 yuan, there is no factual legal basis, and this court does not support it. In summary, in accordance with Articles 8, 60, 94 (4) and 107 of the Contract Law of the People's Republic of China and Article 64 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:

1. The defendant Henan Yueyue Real Estate Co., Ltd. shall, within 10 days from the effective date of this judgment, return the plaintiff Zhang Da's down payment of 316782 yuan and pay interest (based on 316782 yuan, calculated according to the quoted interest rate of the loan interest rate market published by the National Interbank Lending Center for the same period, from January 10, 2020 to the date of actual repayment).

2. Reject the plaintiff's other litigation claims.

If the obligation to pay money is not performed within the time limit specified in the judgment, the interest on the debt during the period of delay shall be doubled in accordance with the provisions of Article 253 of the Civil Procedure Law of the People's Republic of China.

The case acceptance fee was halved and 5,068 yuan was charged, with the plaintiff Zhang Da bearing 2,042 yuan and the defendant Henan Yueyue Real Estate Co., Ltd. bearing 3,026 yuan.