Corporate Counsel Team: Huaicheng lawyers
Edit | July
作者 | 槐城律师 蔡志远
Cai Zhiyuan
Liaoning Huaicheng Law Firm
Contract disputes, civil litigation, labor disputes
In today's life, commercial advertisements are pervasive, especially the advertisements of bulk commodities that sell houses and cars, which are often carefully planned and advertised according to the needs and pain points of the target group, and there is no lack of exaggerated content.
If you really believe that you have invested a huge amount of money, but the merchant cannot cash it out, can you claim to terminate the contract and compensate on this basis, can you get the court's support?
This involves the question of whether it is an offer or an invitation to make an offer expressed in the advertisement.
The difference between an offer being binding and an invitation to offer is not and can cause you huge losses.
What kind of advertising content constitutes an offer and binds the parties?
Let's look at an example.
1
Considered false propaganda
Request to rescind the contract
The plaintiff, Fu, claimed that he purchased a commercial house from a real estate company (hereinafter referred to as the real estate company).
The real estate company promised that Fu's grandson could attend a county experimental primary school after the purchase, but in the end he failed to attend the school.
The plaintiff argued that the purchase of the property was based on false advertising and false promises from the real estate company, so the plaintiff sued:
1. Terminate the contract for the sale and purchase of commercial housing signed by both parties;
2. The real estate company returned 1.35 million yuan to Fu for the purchase of the house and bore the interest loss;
3. The real estate company compensated Fu 93,600 yuan.
In response, the defendant real estate company argued:
1. The purchase price is not the 1.35 million yuan claimed by Fu;
2. He promised that the school district was not false publicity, but it could not be implemented because of policy reasons, and the school district issue was not the content of the contract terms, and Fu could not use this as a reason to terminate the contract.
After trial, the court found that the real estate company signed a "deposit contract" with Fu, and Fu renovated part of the space of the house involved in the case, and the project cost was 8,500 yuan.
The real estate company signed the "Commercial Housing Sales Contract" with Fu, stipulating that Fu would purchase the house involved in the case with a purchase price of 1.21 million yuan and taxes of 100,000 yuan.
Fu went through the registration procedures for house property rights and paid the deed tax of 18,245 yuan and the real estate registration fee of 80 yuan.
It was also ascertained that the real estate company had used the slogan "Buy a house before June, you can enter school in September" during the sales campaign, and the salesperson made the same promise when purchasing the house.
But after buying the house, Fu was told by the staff of the real estate company that he could not enroll in the school.
On August 22, 2019, Fu complained to the local market supervision bureau about the above issues, demanding that the real estate company move out, or compensate for the loss of not being able to enroll in the school and the added value of the school district.
After mediation by the Market Supervision Bureau, the real estate company was only willing to bear the loss of 93,600 yuan for failing to attend an experimental primary school in a county, and the requirements for check-out and compensation for added value could not be met, and the two parties did not reach an agreement, so the lawsuit was filed.
2
Recognition of the offer
The contract was terminated by a judgment
(Click on the image to ask a lawyer)
The focus of the dispute in this case is whether the Commercial Housing Sales Contract signed between Fu and the real estate company should be terminated.
In the process of selling the house in this case, the real estate company's personnel made a clear and unambiguous commitment that after purchasing the house involved in the case, Fu's grandson could attend an experimental primary school in a certain county.
Advertisements and promotional materials for the sale of commercial housing are generally regarded as invitations to make an offer, but if the seller's explanations and promises on the commercial housing and related facilities are clear, specific and unambiguous, and have a significant impact on the conclusion of the contract for the sale and purchase of the commercial housing and the price of the housing, it shall be deemed to be an offer and binding on the seller.
Fu's signing of the commercial housing sales contract based on this commitment is a trust interest in the content of the promise, and the promise should be regarded as an offer and is binding on the real estate company.
The failure of the current real estate company to fulfill its promise has constituted a breach of contract.
Moreover, Fu's main purpose in purchasing the house involved in the case was to consider the issue of his grandson's schooling, and the main purpose of the contract could not be realized due to the real estate company's breach of contract, and Fu had the right to terminate the contract and claim compensation for losses.
After the contract is terminated, the real estate company shall return the purchase price of 1.21 million yuan to Fu, and bear the project cost of 8,500 yuan, taxes and fees of 120,000 yuan and related interest losses.
With regard to the issue of compensation for the losses of Fu X A and Fu X B's claim that their grandsons could not be enrolled in an experimental primary school in a certain county, although the real estate company had expressed its willingness to bear 93,600 yuan in compensation, the premise was that the contract would not be terminated, so the amount could not be used as the basis for determining the losses.
Based on the actual circumstances of this case, the court decided that the real estate company should pay 20,000 yuan in compensation.
3
Huaicheng lawyer suggested
In response to commercial advertising disputes, combined with the court's adjudication rules and practical experience, the following three suggestions are put forward for your reference:
1. If the invitation to offer in a commercial advertisement clearly and specifically stipulates the obligations of the inviter, the inviter will be liable for negligence in contracting if it fails to comply with the obligations.
2. Commercial advertisements that violate the "Advertising Law", "Provisions on the Publication of Real Estate Advertisements" and other laws and regulations will not only bear civil liability, but also may bear administrative penalties.
3. It is recommended that the merchant indicate that "the relevant content is an invitation to make an offer and does not constitute a commitment" when advertising, and write clearly what can be done in the contract, and do not write it into the contract if it cannot be done.
References:
People's Court Case Database: (2023-07-2-091-007) Fu X A and Fu X B v. XX Real Estate Company, a case of dispute over a housing sales contract
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