Clarifying the nature of the commercial housing entrusted agent sales contract is the basis and premise for resolving disputes over the commercial housing entrusted agency sales contract.
Legal analysis of the termination of the sales contract entrusted to the agent of commercial housing
1. The nature of the sales contract entrusted to the agent of the commercial housing
The content of the contract involves pre-preparation, planning and sales agency, etc., and there is an intricate legal relationship between the agent and the developer.
If the legal relationship in the sales contract entrusted to the commercial housing agent cannot be sorted out, it is impossible to determine the rights and obligations between the parties.
However, because the sales contract of entrusted agent for commercial housing is not one of the 19 typical types of contracts expressly stipulated in the Civil Code.
Therefore, for the application of the law to the contract of entrusted agency sales of commercial housing, it is necessary to clarify the internal relationship of the contract, so that Article 467 of the Civil Code can be applied to find a legal norm suitable for adjusting the contractual relationship.
Some scholars believe that in the sales contract of entrusted agency for commercial housing, the agent needs to sign the reservation contract, subscription letter or purchase contract on behalf of the agent continuously, which is more consistent with the characteristics of ordinary commercial agents.
Attributed to commercial entrustment contracts can be used to sort out the sales behavior of commercial housing entrusted agents.
However, it is worth noting that neither commercial representation nor commercial entrustment is a clear concept in mainland law, and its discussion is also at the legal level.
Therefore, it is impossible to solve the current application of law to clarify the relationship of rights and obligations in the sales contract of the entrusted agent of commercial housing.
At the same time, commercial agents pay more attention to the attributes of the agency, and in practice, the legal application path attributed to the entrustment contract according to the agency attribute has led to many disputes in the resolution of such disputes.
Some scholars also analyzed the different characteristics of this type of behavior from the overall nature of housing sales agency behavior, and put forward three theories of intermediary theory, intermediary agency theory and intermediary, entrustment, and agency theory with intermediary nature as the core.
Although the doctrine arising from the act of housing sales agency is not directly aimed at the entrusted agent sales of commercial housing.
However, they all paid attention to the intermediary nature of this type of behavior, especially the description of the sales contract of the entrusted agent of commercial housing is the most appropriate.
From this point of view, the author will explore and find the legal relationship embodied in the sales contract of the entrusted agent of commercial housing through comparative analysis.
As a service contract with the content of providing labor services, there is a close relationship between the sales contract of commercial housing entrustment agency and the legal terms of entrustment, agency, and intermediary.
Examining the sources of these legal terms, we can find that entrustment is a general rule for handling the affairs of others, and intermediary and agency are separated from entrustment according to different labor content.
As a result, many atypical service contracts are usually classified as entrustment contracts at the beginning of their interpretation.
The sales contract of entrusted agency for commercial housing is also a contract with labor services as the content, and it is obvious that it has the nature of a commission contract to handle affairs for the principal.
However, it is one-sided to regard the sales process of entrusted agent of commercial housing as a entrusted agency activity, which has its own similarities and differences with commission, entrusted agent and intermediary.
In the scope of the act of entrusted sales of commercial housing and the external name, it is divided into three situations, when the commercial housing sales agent conducts marketing planning, advertising and other acts in preparation for sales in the early stage, the agent carries out activities in his own name.
In this process, both legal and non-legal acts are usually involved, and the mode of behavior is more similar to that of delegation.
When an agent enters the formal sales process and the agent uses its professional marketing and brokerage capabilities to find prospective buyers, the work he does should be the same as the activities carried out by the second-hand house intermediary.
When the agent finds an intended buyer, the agent signs a commercial housing reservation contract, subscription letter or purchase contract with the buyer in the name of the developer, and it has the behavior of entrusting the agent.
In terms of obtaining commissions, the commission contract cannot be fully explained.
Different from the entrustment contract, which takes the completion of the commission transaction as a condition for obtaining the right to claim commission, the commercial housing sales agent is similar to the intermediary contract in terms of the premise of obtaining commission, and the realization of the purpose of the contract is a necessary condition for paying the commission.
Only in the case of entrusted agent sales of commercial housing, the agent needs to obtain the right to commission on the premise of achieving the purpose of the contract, that is, to sign the formal purchase contract and attach the conditions for the buyer to pay the down payment.
It is also worth noting that the sales contract of the entrusted agent of commercial housing is consistent with the intermediary contract in that in the case of asymmetric information on the sale and purchase of housing, the basis for the payment of the commission between the two is ultimately based on the information service of the agent or intermediary.
At the same time, the burden of necessary expenses is usually borne by the commercial housing sales agent, which is consistent with the situation of the intermediary when the contract is formed.
In terms of the scope of the reporting obligation, the commercial housing sales agent cannot determine the reporting obligation for the specific execution method in the performance of the contract.
However, in the case that the agent only needs to sign the pre-purchase contract or subscription letter, when there is an intended buyer who has subscribed, the agent shall promptly report to the developer to sign a formal purchase contract;
In the entrustment contract, the trustee has a legal obligation to report the handling of the entrusted transaction and the processing results; In an intermediary contract, the intermediary shall truthfully report the opportunity to conclude the contract.
It can be seen that in the scenario of entrusted agent sales of commercial housing, its contract has the triple attributes of intermediary, entrustment and entrusted agency, which has broken out of the connotation of the entrustment contract and cannot be evaluated with a single typical contract.
Among them, agents not only need to find prospective buyers according to their real estate brokerage capabilities, but also need to complete contractual obligations such as advertising production entrusted by developers, signing pre-purchase contracts, subscription letters or purchase contracts.
On this basis, the developer's obligation to treat the payment is to pay the pre-agreed commission.
Therefore, in the sales contract of entrusted agent of commercial housing, there is cross-mixing between the attributes of intermediary, entrustment and entrusted agent, and the concept of mixed contract of type combination is theoretically proposed for the identification of such contracts.
Therefore, it is suspected that the sales of commercial housing entrusted as a single commercial agent are biased, and in essence, it should belong to a mixed commercial contract with the nature of intermediary, entrustment and entrustment.
2. The statutory right of cancellation and the reason for rescission of the sales contract entrusted to the commercial housing
(1) The sales contract entrusted to the agent of commercial housing is not applicable to arbitrary termination
As a commercial mixed contract with the nature of entrustment, the statutory right of rescission of the commercial housing entrustment agency sales contract may involve two parts: arbitrary rescission and general statutory rescission, but it is debatable whether it can apply the provisions of the arbitrary rescission right of the entrustment contract.
For the legal application of hybrid contracts, three principles are theoretically proposed, namely, absorptionism, hybridism and analogy application.
The absorption doctrine distinguishes between the main and non-main constituent elements of a mixed contract, and on this basis, it claims that the main component absorbs the non-main component, and ultimately refers to the provisions of the named contract pointed to by the main component.
Syncretism maintains that the legal provisions of the named contract to which they belong should be applied separately to each component of a mixed contract.
At the same time, all mixed contracts are regulated with legal effects that are consistent with the legal requirements.
As a general theory at present, the doctrine of applicability by analogy advocates that the legal provisions of each named contract to which it belongs should be applied by analogy.
From the above analysis of the nature of the sales contract of entrusted agency for commercial housing, it can be seen that no matter what principles of legal application are adopted for such commercial mixed contracts, they cannot escape the scope of discussion of intermediary, entrustment and entrustment agency contracts.
As a general rule for handling the affairs of others, the entrustment contract is the predecessor of the intermediary contract and the entrustment agency contract.
Therefore, whether the parties to the commercial housing entrusted agency sales contract have the right of arbitrary rescission still need to return to the discussion of the right of arbitrary rescission of the commercial entrustment contract.
On the issue of the right of arbitrary rescission of commercial entrustment contracts, theoretically there is a general negative attitude, but the reasons for the rejection are mainly tripartite opinions.
That is, the special contract excludes the right of arbitrary rescission, the value determination of commercial contracts does not have the right of arbitrary rescission, and the right of arbitrary rescission applies to gratuitous and non-equivalent entrustment contracts.
Analyzing the above three views, it can be found that the three views have their own emphasis and reflect different value orientations.
The exclusion of the right of arbitrary rescission by special contract is essentially an affirmation of the right of arbitrary rescission of a commercial entrustment contract, but it highly recognizes the autonomy of the parties.
The latter two views deny the right of arbitrary rescission of commercial entrustment contracts from the perspective of the value pursuit of commercial contracts and the value balance of the right of arbitrary rescission, respectively.
In the end, it is possible to explain whether there is a right of arbitrary rescission in a commercial commission contract through the source of the arbitrary right of rescission.
In the following, the author will analyze whether the provisions of the arbitrary right of rescission apply to the sales contract of the entrusted agent of commercial housing from the perspective of the source of the arbitrary right of rescission and the value of the commercial paid contract.
The right of arbitrary rescission originally arose from the gratuitous appointment relationship in Roman law, which was established on the basis of a high degree of trust placed in the trustee by the settlor.
When this trust ceases to exist, in order to avoid the parties being bound by the contract indefinitely, granting the settlor to terminate the appointment of the trustee will not cause the trustee to suffer economic losses, so the right of arbitrary rescission of the settlor arises.
Then, according to the formation logic of the initial arbitrary rescission right, there are three elements for the exercise of the arbitrary rescission right:
The first is the loss of the trust foundation, the second is that the arbitrary termination will basically not cause economic losses to the trustee, and the third is that if the right of arbitrary termination is not granted, the parties will be trapped in an appointment relationship that lacks economic value indefinitely.
Placed in the sales contract of entrusted agent of commercial housing, it can be found whether it is from the loss of trust foundation, or the economic loss of dissolution, or the duration of the entrusted agent sales relationship.
The sales contract of commercial housing entrusted agency does not conform to the interpretation logic of arbitrary cancellation rights based on gratuitous commission.
First of all, in the case of entrusted agent sales of commercial housing, the emergence and loss of trust relationship between developers and agents is more objective.
Compared to the usual entrusted relationship, the foundation of trust between the developer and the agent.
It often involves objective factors such as bidding and bidding, comparison of marketing plans, investigation of past marketing experience, review of real estate intermediary qualifications, filing of sales personnel qualifications, and marketing conditions in the process of contract performance.
The sales and brokerage capabilities of commercial housing sales agents are generally in an objective state that can be known by developers through the review of the above objective factors.
From a fair point of view, it is not justifiable for either party to terminate the contract when there is no loss of the objective factors of the trust between the developer and the agent.
Secondly, there is a relatively stable commercial paid contractual relationship between the developer and the agent, and the agent is to smoothly carry out the sales agency business.
A lot of planning, publicity and other preparatory work need to be carried out in the early stage, and agents also need to carry out a large number of sales agency activities during the official sales of commercial housing.
The developer's arbitrary termination of the contract will not only involve pure economic losses for the agent, but also cause serious damage to its performance interests, and at the same time, it will also have a serious adverse impact on the goodwill of the agent.
Finally, when the developer loses the basis of trust in the agent, the developer can often obtain the general statutory right of termination based on factors such as lack of qualifications.
or the right of cancellation arising from the failure to achieve the sales target as agreed in advance in the contract, the developer will not be in an uneconomical contractual relationship indefinitely.
At this time, the right of arbitrary termination is still granted to the parties as in the case of gratuitous appointment, which seems to be the granting of rights to the parties, but in fact the rights and interests of the agent in a passive position are arbitrarily infringed, constituting an excessive protection of the developer's rights and interests of the rescission.
Therefore, from the perspective of the source of the arbitrary right of rescission, it can be seen that there is no legal basis for the application of the right of rescission in the sales contract of the entrusted agent of commercial housing.
If the parties to the contract are given the right of arbitrary rescission, giving the developer the opportunity to unilaterally terminate the contract unilaterally for its own economic interests, it will not be in line with the value orientation of the right of arbitrary rescission, so the provisions of the right of arbitrary rescission do not apply to such contracts.
(2) The statutory grounds for rescission of the sales contract entrusted to the commercial housing
Although the provisions on the right of arbitrary rescission do not apply to the sales contract entrusted to the commercial housing, in the event of a contract deadlock, the termination path can still be sought through the termination of the contract, the agreed termination or other statutory rescission.
The rescission of agreement and agreement shall be subject to the autonomy of the parties before and after the contract, and the parties may negotiate.
Other statutory rescissions are the most important types of contract rescission and may be based on the following broad criteria:
First, the statutory rescission of breach of contract.
Paragraph 1 of Article 563 of the Civil Code of the mainland provides for the specific circumstances of fundamental breach of contract, which gives the unilateral right of rescission by the compliance method, and the specific applicable circumstances include:
Force majeure, anticipatory default, delay in performance of major debts and breach of contract make it impossible to achieve the purpose of the contract.
The first three types of fundamental breach of contract situations have clear legal requirements and are relatively easy to judge in judicial practice, and the non-breaching party can obtain a unilateral right of rescission if it meets the corresponding requirements, so it is frequently applied in contract rescission disputes.
In the sales contract of entrusted agency for commercial housing, except for the first three types of fundamental breach of contract, statutory cancellation can be directly applied.
If the qualification defects of the agent in the process of contract performance, the passive performance of the sales personnel and other situations that will seriously affect the value of the contract benefit and constitute a fundamental breach of contract, the developer can terminate the contract on the grounds that it "cannot achieve the purpose of the contract".
It can also be seen from this that these reasons that can cause the loss of the developer's trust base can effectively protect the developer's contractual interests from the perspective of unilateral rescission, without the need for arbitrary rescission rights.
Second, the litigation for change of circumstances is discharged.
The application of such rescission is subject to the requirements of constituent elements and procedural requirements.
The so-called "circumstance" refers to the objective facts that are the basis of the contract, so from the principle of fairness, if the change of "circumstance" makes the continued performance of the contract obviously unfair to one party, that particular party may claim to modify or rescind the contract.
However, this "situation" excludes commercial risks, which is also clearly stipulated in Article 533 of the Civil Code of the mainland.
It can be seen that the premise of the application of the principle of change of circumstances is that the basic facts of the non-commercial risk on which the contract is based have undergone major changes, and the basis for the occurrence is to balance the interests of the parties in the process of contract performance and avoid obvious unfairness.
At the same time, if the parties apply the principle of change of circumstances to terminate the contract, they must apply to the court or arbitration commission for determination.