On May 6, Ms. Chen, a consumer, complained to the Consumer Quality News Complaint and Rights Protection Center that she entrusted a real estate agency company, Sichuan Qianjia Auction Assistance Business Information Consulting Co., Ltd. (hereinafter referred to as Qianjia Asset Company), to assist in bidding for foreclosure houses, and thought that she could pick up leaks at a low price, but found that the auctioned foreclosure houses could not be bought at a low price, and were charged 30,000 yuan by the real estate agency for preliminary consulting services. Ms. Chan believed she had been the victim of false publicity and demanded a refund from the real estate agency. In response, the real estate agency said that if Ms. Chen believes that the company has violated the rights and interests of consumers, she can cooperate with her in the judicial process.
Consumer Complaints
The house is not bought, and the service fee is difficult to return
Ms. Chen introduced that in August 2023, she signed a foreclosure house entrustment service agreement with Sichuan Qianjia Asset Company and paid 30,000 yuan for preliminary consulting services. The other party promised to assist in the whole process, and said that the foreclosure house that Ms. Chen was interested in would basically be sold at the starting price, which would not be higher than the market price of the second-hand house. However, the reality is that the auction is highly competitive, and the transaction price is higher than expected, resulting in the failure of the auction.
Ms. Chen told reporters that she was originally looking at the house on the second-hand housing platform, but when she raised money to buy it, she found that it had been removed from the shelves, and then the staff of Qianjia Asset Company contacted Ms. Chen through Beike.com, claiming that "the suite is on the foreclosure room and can assist in auctioning the suite at a price lower than that of the second-hand house." ”
Ms. Chen said that she did not know about the foreclosure house, and also raised questions about the listing information and the subsequent risks, "but the other party can guarantee that we can buy a foreclosure house with no problems, and if the auctioned house has problems and cannot move in smoothly, it will compensate us." Ms. Chen told reporters that the staff of thousands of asset companies also verbally promised her that the foreclosure house would definitely be able to pick up the leaks, saying: "There are houses in the main urban area that can be auctioned at the starting price, let alone in Wenjiang", and the company can "rest assured" that the company can take care of the problems with the house.
On August 12, 2023, Ms. Chen signed a service agreement with Qianjia Asset Company and paid the preliminary consulting service fee. On August 31, 2023, the auction was held as scheduled, and as a result, a total of 4 people signed up to participate in the auction during the auction period, and after several rounds of price increases, the price of the foreclosure house exceeded her budget, so she had to abandon the auction. Subsequently, Ms. Chen learned about several sets of foreclosure properties, but none of them satisfied her. Ms. Chen told reporters that she later learned that the due diligence report on housing information given by thousands of asset companies was actually the foreclosure information that had been made public by the court, which could also be found on the online platform, and Ms. Chen believed that it was not substantially helpful for her to buy a house.
In addition, Ms. Chen told reporters that the WeChat official account of Qianjia Asset Company had written that "if the auction is not successful, no service fee will be charged", which is one of the reasons why Ms. Chen is willing to entrust the company to assist in the bidding. Ms. Chen believed that the company was suspected of false advertising and asked for a refund of the service fee, but after several negotiations, it was fruitless.
The intermediary company responded
Cooperate with the judicial means to resolve the matter
In response to Ms. Chen's complaint, on May 8, the reporter called Qianjia Asset Company to understand the situation, and a manager Yang who was responsible for handling the matter on the other side responded that the reason for the dispute between the company and the customer had been explained to the customer, and as for whether there was false publicity, it could be judged through judicial procedures. "We signed an agreement with the customer, and when we signed the agreement, we must have made it clear to the customer, and the money can be refunded without saying that it can be returned." Manager Yang said that in the agreement signed with Ms. Chen, there is a clause that "after the agreement takes effect, no refund shall be requested for any reason", and the company has provided services, and if the customer is not satisfied, it is recommended to resolve it through judicial channels.
Insider tips
The terms and conditions of the agreement should be clearly stated
Regarding Ms. Chen's experience, the reporter interviewed Wang Bo, a lawyer from Sichuan Yingling Heshi Law Firm. She said that in the dispute between Ms. Chen and Qianjia Asset Company, the issue of whether the offer agreement should prevail or the agreement should prevail.
According to the law, the parties enter into a contract by way of offer and acceptance. Paragraph 2 of Article 473 of the Civil Code stipulates that "if the content of commercial advertisements and publicity meets the conditions for an offer, it constitutes an offer". An offer is an expression of intent to enter into a contract with another person, and the offeror shall be bound by the expression of intent if it is specified in accordance with the content and indicates that it has undergone acceptance by the offeror. The offer becomes effective when it reaches the offeree.
"In the advertisement/publicity of the WeChat official account of the intermediary company, it is clearly stated that 'no service fee will be charged if the auction is not successful', and general commercial advertisements and publicity cannot constitute an offer, but if the content of the commercial advertisements and promotions is specifically determined, meets the provisions of the invitation and has a significant impact on whether the offeree (consumer) subsequently signs a contract, it is regarded as an offer and is legally binding on the intermediary."
However, the subsequent agreement signed between Ms. Chen and Qianjia Asset Company stipulates that "after the agreement takes effect, no refund shall be requested for any reason".
Wang Bo believes that "is the agreement signed between the consumer and the intermediary a standard contract? Is the non-refundable clause a standard clause? Article 496 of the Civil Code stipulates that "standard clauses are clauses that are drafted in advance by the parties for the purpose of repeated use and are not negotiated with the other party at the time of entering into a contract." Where standard clauses are used to conclude a contract, the party providing the standard clauses shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to the clauses that have a major interest in the other party, such as exempting or reducing its liability, and explain the clauses in accordance with the requirements of the other party. If the party providing the standard clause fails to perform the obligation of reminder or explanation, resulting in the other party not paying attention to or understanding the clause in which it has a material interest, the other party may claim that the clause does not become the content of the contract. ”
In this dispute, Ms. Chen chose to sign a contract with the intermediary company due to the advertisement/promotion of "no service fee if the auction is not successful" in the intermediary company's WeChat official account, but the agreement stipulates that "after the agreement takes effect, no refund shall be requested for any reason", is this clause a re-negotiated clause when the intermediary company signs the agreement with the consumer, or is it a standard clause drafted by the intermediary company in advance? Wang Bo said: "If it is a standard clause and the clause has a significant interest in the consumer, has the intermediary company fulfilled its obligation to prompt or explain? In the event of non-performance, the consumer may claim that the clause does not become part of the contract. ”
At the same time, Wang Bo also reminded consumers that when purchasing goods or receiving services, they should try to implement important matters such as specific costs, after-sales service, and liability for breach of contract in the early advertisement/publicity of the operator in the written agreement, so as to avoid having no basis to rely on in the event of disputes in the future; Second, when signing a contract, the operator may be required to provide additional clarity if the standard clauses of the contract contain content that has a significant interest in the consumer.
In addition, the reporter combed and found that in February this year, the People's Court of Chaoyang District, Beijing issued a reminder: "legal auction" needs to go through a formal auction procedure, and there is no charge for the whole process, and there are no "internal resources" and "low-price channels". If the general public is willing to purchase residential houses or other items through judicial auction, they should handle it on a legal and compliant auction platform and bid through formal channels. Don't be gullible and beware of being deceived. All-media reporter Luo Anshu
Source | Consumer Quality Report
Edit | Chen Ruini
Proofreading | Li Xingtong
Editor-in-charge | Zhang Ke
Audit | Kai Yongli
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