Since there is no independent sales agency system for commercial housing in the mainland, the nature of the entrusted agent sales behavior of commercial housing is mostly considered in the behavior of housing sales agency.
Prior research relevant to the case
1. Regarding the nature determination of the sales contract entrusted to the commercial housing
In the process of analyzing the behavior of housing sales agency, some scholars believe that the sales behavior of entrusted agency for commercial housing belongs to the category of ordinary commercial agency, and the contract established is a commercial commission contract, such as Lu Donghong's "Analysis of the Problems of Housing Sales Agency Contract".
In addition, for the overall nature of the behavior of housing sales agents, based on their certain intermediary attributes, three views are mainly formed: intermediary theory, intermediary agency theory and intermediary, entrustment, and agency theory.
1. Intermediary said.
For example, Zeng Qingjun proposed in "Research on Intermediary Contracts" that housing sales agents belong to the category of intermediaries, that is, introducing corresponding ordering opportunities for other subjects, or intervening in them to serve as the corresponding subscription medium.
Xiao Jianhua and Xiao Jianguo also made the following statements in the Contract Law Theory and Adjudication Essentials Series:
"Sales agents can provide corresponding intermediary business for the sales, leasing and other issues of the relevant entities, and at the same time charge specific commissions according to the actual system regulations."
2. The intermediary agent said.
According to this theory, the behavior of housing sales agents has the dual attributes of intermediary and agency.
For example, Zhou Nansheng proposed in his article "On the Legal Adjustment of Real Estate Agents in the Mainland" that the various activities carried out by housing intermediaries in order to obtain relevant commissions and promote the corresponding housing transaction behaviors should be included in the scope of intermediary agents.
3. Intermediary, entrustment, agency said.
Lin Yongting pointed out in "Real Estate Law Discussion (IV) - Intermediary Sales" that sales agents rely on the advantages of professionalism and experience of relevant agents.
It brings certain references to actual trading behaviors and helps relevant entities form a common understanding.
In order to achieve a special contract for the basic purpose of the transaction, and the corresponding remuneration is obtained for this, it is a hybrid contract that combines the nature of an intermediary contract, a commission contract, and an agency contract.
2. Regarding the right to arbitrarily cancel the sales contract entrusted to the commercial housing
From the perspective of a commercial entrustment contract, there are mainly two viewpoints on whether the parties have the right of arbitrary rescission.
At present, there are few scholars who adopt the affirmative theory, which holds that commercial entrustment contracts are also included in the entrustment contract, and the parties have the right of arbitrary rescission.
The negative theory is divided into three views, the first of which is that the parties can specifically exclude the right of arbitrary rescission on the premise of affirming that the commercial commission contract is a commission contract, such as Han Shiyuan's "General Introduction to Contract Law" and Huang Li's "Monographs on Civil Law Debts (Part II)".
From the perspective of entrusting agency sales of commercial housing, Qiuhe also proposed that the right of arbitrary rescission is contrary to the value of the business entity's pursuit of maximizing their respective interests, and can be specifically excluded.
The second view is that the value of the commercial commission contract determines that the parties cannot apply the provision of the right of arbitrary rescission.
Such as Jiang Ping's "Refined Interpretation of the Contract Law of the People's Republic of China".
The third view is that the right of arbitrary rescission applies only to gratuitous or non-equivalent commission contracts.
For example, Xue Wencheng "On Contract Rescission and the Exercise of the Right of Contract Rescission", Cui Jianyuan and Wu Guangrong, "Rules for the Exercise of the Right of Rescission in Mainland Contract Law".
From the perspective of intermediary contracts, the current Civil Code stipulates that the contents not stipulated in the chapter of "intermediary contracts" shall be subject to the provisions of the entrustment contract.
The addition of this provision to the Civil Code will directly lead to the application of the provisions on arbitrary rescission of the entrustment contract to the intermediary contract.
Some scholars believe that such provisions of the Civil Code are excessive protection of the subjective trust of the principal, such as Wang Shuai and Qin Shengnan's "On the Right of Arbitrary Termination of the Principal of an Intermediary Contract and the Amendment of the Statutory Paradigm".
3. On the issue of compensation for loss of profits that can be obtained in the event of unilateral termination
With regard to the issue of compensation for loss of available benefits for unilateral termination of the contract, the theoretical circles have focused on the discussion of "whether the loss of available benefits should be compensated", and there are mainly positive and negative theories.
It is affirmative that although unilateral arbitrary rescission cannot be measured solely by breach of contract, the calculation of damages can refer to article 113 of the Contract Law, which includes the loss of expected benefits in the scope of compensation.
For example, Wang Yuelong's "Defense on Compensation for Interests Obtained after Termination of the Contract", Ma Zhongfa and Feng Kai's "Liability for Arbitrary Termination of the Entrustment Contract", and Lin Xiuhao's "Research on the Compensation of Interests Available after the Termination of the Commercial Entrustment Contract".
The negative argument holds that there is an agreement from the agreement; In the absence of an agreement, the scope of damages is limited to direct losses.
For example, Wang Liming asserted in his Theory of Liability for Breach of Contract that the scope of damages should not include the loss of available profits, and Li Yongjun also held this view in the Contract Law.
On the basis of affirmation, the discussion of specific compensation for loss of available benefits is fragmented and lacks systematic research.
Most believe that in the case of paid entrustment, especially for commercial entrustment with significant impact on the interests of the parties to the contract, the court should make a judgment based on the specific circumstances of the case.
For example, Zhou Jianghong proposed in "Damages for Arbitrary Termination of the Entrustment Contract", after the termination of the entrustment contract, the principal should compensate the remaining future remuneration of the trustee in accordance with restrictive rules such as the profit and loss offsetting rule and the derogation rule.
Yu Lequn suggested in "On the Liability for the Exercise of the Right of Arbitrary Rescission in the Entrustment Contract" that at the time of concluding the contract, the parties to the contract agreed in advance whether and the standard of compensation for the benefits that could be obtained after the termination of the contract.
In the case of unilateral rescission, the calculation of the loss of available benefits can only be found in extraterritorial judicial practice.
It can be seen that at present, the theoretical circles have not formed an in-depth discussion on the sales behavior of individual commercial housing entrusted agents, and only examine them from the perspective of superficial commercial agency and commercial commission.
Although the arbitrary rescission right of this type of contract is denied from the perspective of commercial entrustment, the problem of theoretical interpretation of commercial entrustment without arbitrary rescission right is solved to a certain extent.
However, in the context of unilateral arbitrary termination of commercial entrustment, some theoretical interpretations regarding the issue of "compensation for loss of available profits" are still incompatible with the view that commercial entrustment does not have the right of arbitrary rescission, and the specific calculation rules in this case are not clear.
At the same time, the theoretical research on the basis of the commission claim right of commercial housing sales agents is also blank.
The Notice of Rescission of Contract in question does not have the effect of rescission of the contract
Regarding the validity of the Notice of Rescission of Contract in the case, the focus is still on judging the right of rescission under the nature of the Full Marketing Agency Contract.
Regarding the determination of the nature of the "Full Marketing Agency Contract", the courts of first and second instance in this case were different, but the ruling on the validity of the "Notice of Rescission of Contract" was the same, but there were slight differences in the reasons for the adjudication.
The court of first instance ruled out the nature of the contract as a commission contract, holding that the "Full Marketing Agency Contract" was a sales contract for the entrusted agency of commercial housing, which not only stipulated the assessment objectives and sales incentives, but also restricted the unilateral termination of the contract.
Then, the nature of the contract is not a commission contract, and the parties do not have the right to rescind at will.
However, Jinli could not prove that Hexin did not hand over the 22 scheduled contracts, causing serious losses, thus constituting a fundamental breach of contract, and the increase in premium commission caused by the increase in housing prices was a commercial risk and did not constitute a change of circumstances.
Therefore, Jinli Company does not have a statutory right of rescission, and the Notice of Rescission of Contract involved in the case does not have the effect of rescission of the contract.
The court of second instance subverted the opinion of the court of first instance that the nature of the contract was not a commission contract, and also supplemented the issue of arbitrary rescission from the perspective of interest relationship.
The court of second instance held that the specific content of the whole-process marketing agency service stipulated in the Full-Process Marketing Agency Contract conforms to the characteristics of the entrustment contract.
However, due to the restriction of unilateral rescission rights in advance in the contract, the parties have an interest relationship in addition to a special relationship of trust.
Based on the principle of good faith and fairness, Jinli Company does not have the right of arbitrary termination.
Other grounds for rescission are consistent with the findings of the first instance, so the "Notice of Rescission of Contract" is not supported.
The author believes that the court of first and second instance was undoubtedly correct in determining the validity of the Notice of Rescission in the case, but there are imperfections in the reasons for the adjudication, and the author believes that this issue should be judged from the following aspects:
From the perspective of the performance process of the "Full Marketing Agency Contract", the contract has multiple attributes of entrustment, intermediary and entrusted agency, and cannot be evaluated with a single contract, and is not a commission contract.
In the preliminary preparation stage, Hexin Company is the entrusted part of handling the affairs of Jinli Company, including the design of marketing plans, advertising plans and other preparatory work for sales.
Entering the sales stage, Hexin Company's behaviors such as receiving customers, recommending, and viewing model houses are the same as second-hand housing intermediary contracts, and the core is to rely on real estate brokerage and marketing capabilities to find intended buyers.
Although there are differences between the two: first, the subject matter of the sales contract entrusted to the agent of the commercial housing is a series of commercial houses, and the sales behavior is continuous, while the subject matter of the second-hand housing intermediary is generally a certain second-hand house, and the sales behavior is temporary;
Second, in the case of sales under the entrustment of commercial housing, after the agent finds the intended buyer, it needs to sign a reservation contract and a sales contract with the intended buyer, while in the case of second-hand housing intermediary, there is no need to sign a purchase contract, and only needs to inform the transaction opportunity in time.
However, the above distinction cannot essentially exclude the intermediary attribute of the "Full Marketing Agency Contract", and the author believes that the agency right to sign the reservation contract and the sales contract at this time is additionally granted by Jinli on the basis of the success of the intermediary.
As the principal, Jinli Company is less likely to refuse to enter into a sales contract with the intended buyer, and it is more efficient to grant the agency right to sign a predetermined contract and a sales contract with Hexin Company.
In other words, the success of the sales stage follows the contract into the agency stage, and the success of the intermediary behavior cannot be covered up by the contract signing behavior in the agency stage.
Therefore, the nature of the "whole marketing agency contract" is a hybrid contract with the attributes of entrustment, intermediary and entrusted agency.
From the perspective of the source and application of the right of arbitrary rescission, the "Full Marketing Agency Contract" is not a commission contract, and naturally cannot directly apply the right of arbitrary rescission.
As a commercial hybrid contract with the nature of entrustment, it is necessary to examine the applicability of the right of arbitrary rescission from multiple angles.
First, the right of arbitrary rescission comes from gratuitous appointment, and on the premise of loss of the basis of trust, if the right of arbitrary rescission is not granted, the parties will be trapped indefinitely in an appointment relationship that lacks economic value.
At the same time, the application of the discretionary right of rescission will basically not cause economic loss to the trustee.
However, it is obvious that the performance of the "Full Marketing Agency Contract" will not put Jinli Company in an uneconomical situation, on the contrary, arbitrarily terminating it will cause considerable economic losses to Hexin Company.
Therefore, from the source point of view, it is not appropriate for Jinli Company to apply the right of arbitrary cancellation to terminate the "Full Marketing Agency Contract".
Second, from the perspective of the value of commercial contracts, commercial contracts pay more attention to efficiency, unlike the value orientation of civil contracts.
The primary purpose of a commercial entity in concluding a contract is to maximize the interests of the commercial matter, and it is likely to be unfair to give the subject of a commercial contract the same arbitrary right of rescission as the subject of a civil entrustment contract.
Therefore, the pursuit of efficiency value in a commercial contract determines that Jinli does not have the right of arbitrary termination.
At the same time, excluding Jinli's arbitrary right of rescission is also in line with the view that most scholars advocate that the right of arbitrary rescission only applies to gratuitous or non-equivalent entrustment contracts.
Third, when applying hybrid contracts by analogy, they should proceed from the genuine intention of the parties to enter into the contract, so as to determine the corresponding legal rules to apply.
Then, when the "Full Marketing Agency Contract" was concluded, a special agreement was made on unilateral rescission, and from the sincerity of the contract between Jinli Company and Hexin Company, the existence of the right of arbitrary rescission was not recognized.
Therefore, although the "Full Marketing Agency Contract" is a hybrid contract with the nature of entrustment, the right of arbitrary termination of the entrustment contract cannot be applied.
From the perspective of other reasons for rescission, firstly, Jinli Company claimed that Hexin Company's failure to hand over the scheduled contract of Building 22 constituted a breach of contract.
However, the "Full Marketing Agency Contract" does not stipulate the transfer of the scheduled contract by Hexin Company.
At the same time, Jinli Company also failed to provide evidence to prove that the act caused serious losses to it, resulting in the inability to continue to perform the contract, and did not meet the fundamental breach of contract stipulated in Article 563, Paragraph 1 of the Civil Code.
Secondly, Jinli claimed that the premium commission continued to perform with the increase in housing prices was unfair and constituted a change of situation.
However, according to Article 533 of the Civil Code, the change of circumstances cannot be a purely commercial risk against the facts.
However, the increase in the amount of premium commission caused by the rise in housing prices is a typical commercial risk brought about by changes in market conditions, and Jinli cannot claim to terminate the contract on this ground.
Therefore, Jinli Company does not have any statutory or contractual right of cancellation.
From the perspective of the rescission procedure, among them, the cause of the change of circumstances advocated by Jinli Company needs to be confirmed by the court or arbitration commission judgment to produce the effect of rescission, but Jinli Company only notified Hexin Company in writing to terminate the "Full Marketing Agency Contract", so the procedure is illegal.
At the same time, in accordance with Article 565 of the Civil Code, after receiving the Notice of Termination of the Contract, Hexin Company immediately indicated to Jinli that it did not recognize the validity of the rescission.
Subsequently, in the case of Jinli's refusal to perform the contract, it collected the corresponding evidence and filed a lawsuit with the people's court, requesting confirmation that the Notice of Rescission of the Contract did not have the effect of rescission.
Hutchison's objection procedure to the Notice of Termination of Contract complies with the law, and the court confirms that the Notice of Termination does not have the effect of rescission of the contract.
In summary, the Notice of Rescission of the Contract in question should not have the effect of rescission.
At the same time, the proper handling of this case has also produced a certain guiding effect for future legislation and justice.
First of all, although the current legislation does not clearly stipulate the nature of the sales contract entrusted to the commercial housing, the court should consider the namelessness of the contract in the process of adjudicating the case.
From the aspects of the content and purpose of the contract, the nature of the type combined commercial mixed contract of this type of contract with the attributes of entrustment, intermediary and principal-agent is confirmed, which is of great significance for the resolution of subsequent similar cases.
Secondly, from the legal analysis, it can be seen that according to the logic of interpretation of Roman law, the right of arbitrary rescission in commercial remunerated contracts is not an inherent right of the parties.
When the Civil Code is amended in the future, it is proposed to separate the right of rescission of paid entrustment and gratuitous entrustment, so as to avoid the arbitrary rescission right being mixed into the applicable scenarios of paid contracts and affecting the stability of commercial contracts.