Shanghai Zhongyuan Property Consultant Co., Ltd. v. Tao Dehua
Intermediary contract dispute
(Supreme People's Court Judicial Committee discussed and passed on December 20, 2011)
Key words civil intermediation contract, second-hand house sale, default
Referee points
In the house purchase and sale intermediation contract, it is legal and effective to prohibit the buyer from using the information provided by the intermediary company to bypass the agreement between the intermediary company and the seller to sign a house sale contract. However, when the seller sells the same house through multiple intermediary companies, the buyer obtains the same listing information through other legitimate channels that the public can know. The buyer has the right to choose an intermediary company with low quotation and good service to facilitate the establishment of the housing sales contract. The behavior does not use the listing information of the intermediary company with which it was previously contracted, so it does not constitute a breach of contract.
Related law
Article 424 of the Contract Law of the People's Republic of China
Basic case
The plaintiff Shanghai Zhongyuan Property Consultant Co., Ltd. (referred to as Zhongyuan Company) alleged that the defendant Tao Dehua used the sales information of a certain house in Zhuzhou Road, Hongkou District, Shanghai, provided by Zhongyuan Company, deliberately skipped the intermediary and privately signed the contract with the seller directly, in violation of The agreement of the real estate purchase confirmation is a malicious "jumping" behavior, requesting the court to order Tao Dehua to pay the Zhongyuan company liquidated damages of 16.5 million yuan.
The defendant Tao Dehua argued that Li Moumou, the original owner of the house involved, entrusted a number of intermediary companies to sell the house. Zhongyuan Company did not exclusively grasp the information of the listing, nor was it exclusive sales. Tao Dehua did not use the information provided by Zhongyuan Company, and there was no “jumping” breach.
The court found through trial that in the second half of 2008, the original owner Li Moumou went to a number of housing agencies to list the houses involved. On October 22, 2008, a real estate brokerage company in Shanghai took Tao Dehua to see the house; on November 23, a real estate consultant company in Shanghai (referred to as a real estate consulting company) took Tao Dehua's wife Cao Moumou to see the house; On November 27th, Zhongyuan Company took the house with Tao Dehua and signed the “Real Estate Purchase Confirmation” with Tao Dehua on the same day. Article 2.4 of the Confirmation stipulates that within six months after Tao Dehua has examined the real estate, Tao Dehua or his client, agent, representative, and contractor are related to Tao Dehua, using information provided by Zhongyuan Company. If the opportunity, such as opportunity, does not reach a third-party company to enter into a sale or purchase transaction with a third party, Tao Dehua shall pay liquidated damages to Zhongyuan Company at 1% of the actual transaction price reached with the seller on the sale of the real estate. At that time, Zhongyuan Company quoted 1.65 million yuan for the house, and a real estate consulting company quoted 1.45 million yuan, and actively negotiated the price with the seller. On November 30, under the jurisdiction of a real estate consultant company, Tao Dehua signed a house sale contract with the seller at a transaction price of 1.38 million yuan. After the buyer and the seller handled the transfer procedures, Tao Dehua paid a commission of 13.8 million yuan to a real estate consultant company.
Referee result
Shanghai Hongkou District People's Court made a civil judgment on June 23, 2009 (2009) Hongmin San (Min) Chu Zi No. 912: The defendant Tao Dehua shall pay the plaintiff Zhongyuan Company a penalty of 1.38 within 10 days from the effective date of the judgment. Ten thousand yuan. After the verdict, Tao Dehua appealed. The Shanghai No. 2 Intermediate People's Court made a civil judgment on September 4, 2009 (2009) Hu Er Zhong Min Er (Min) End Word No. 1508: 1. Revocation of Shanghai Hongkou District People's Court (2009) Hongmin III ( Civil) No. 912 civil judgment; Second, the Central Plains Company requested that Tao Dehua pay a liquidated claim of 16.5 million yuan for breach of contract, and will not support it.
Referee reason
The court's effective referee believes that the “Real Estate Purchase Confirmation” signed by Zhongyuan Company and Tao Dehua is of an intermediation contract nature. The agreement in Article 2.4 is a form of prohibition of “jumping” in the housing transaction contract, which is intended to prevent The buyer uses the listing information provided by the intermediary company to “jump” the intermediary company to purchase the house, so that the intermediary company can not get the commission that it deserves. The agreement does not exist to exempt one party’s responsibility, increase the other party’s responsibility, and exclude the other party’s main rights. It should be considered valid. According to the agreement, the key to measuring whether the buyer is “jumping” is to see whether the buyer has used the information, opportunities and other conditions provided by the intermediary company. If the buyer does not use the information, opportunities and other conditions provided by the intermediary company, but obtains the same listing information through other legitimate channels that the public can know, the buyer has the right to choose an intermediary company with low quotation and good service to facilitate the establishment of the housing sales contract. , and does not constitute a "jumping" breach. In this case, the original property owner listed the same house through a number of intermediary companies. Tao Dehua and his family learned the same listing information through different intermediary companies, and facilitated the establishment of the housing sales contract through other intermediary companies. Therefore, Tao Dehua did not use the information and opportunities of the Central Plains Company, so it did not constitute a breach of contract, and did not support the Central Plains company's claim.
Guiding Case No. 2
Wu Mei v. Sichuan Meishan Xicheng Paper Co., Ltd.
Company sales contract dispute case
(Supreme People's Court Judicial Committee discussed and passed on December 20, 2011)
Key words civil litigation, execution, settlement, withdrawal of appeal, failure to perform settlement agreement, application for execution of first instance judgment
Referee points
During the second instance of a civil case, the parties reached a settlement agreement and the people's court allowed the withdrawal of the appeal. The settlement agreement was not made by the people's court in accordance with the law, and it was an agreement reached outside the litigation. If one party fails to perform the settlement agreement and the other party applies for the execution of the first-instance judgment, the people's court shall provide support.
Related law
Article 207, Section 2 of the Civil Procedure Law of the People's Republic of China
Basic case
The plaintiff Wu Mei is the owner of the Wumei Accepting Old Station in Dongpo District, Meishan City, Sichuan Province, and is engaged in the scrap purchase business. Since about 2004, Wu Mei has sold the waste book to the defendant Sichuan Meishan Xicheng Paper Co., Ltd. (referred to as Xicheng Paper Company). On April 14, 2009, the two parties passed the settlement, and Xicheng Paper Co., Ltd. issued an owe to Wu Mei: This is the amount owed to Wu Mei’s waste book (¥1970000.00). On June 11 of the same year, the two parties settled the futures futures. Xicheng Paper Co., Ltd. issued an owe to Wu Mei: Today, the owe to Wu Mei’s book is 10,000 yuan (¥548000.00). Wu Mei went to the People's Court of Dongpo District of Meishan City for sues, and requested the court to order Xicheng Paper Company to pay 2.518 million yuan and interest. The defendant Xicheng Paper Company had no objection to the payment of 25.18 million yuan due to Wu Mei.
After the trial, the court of first instance ruled that the defendant Xicheng Paper Company paid the plaintiff Wu Mei a loan of 25.18 million yuan and default interest within 10 days from the effective date of the judgment. After the verdict was pronounced, Xicheng Paper Company appealed to the Meishan Intermediate People's Court. During the second trial, Xicheng Paper Co., Ltd. signed a repayment agreement with Wu Mei on October 15, 2009 to agree on the repayment plan of Xicheng Paper Co., and Wu Mei gave up the request to pay interest. On October 20 of the same year, Xicheng Paper Company applied for withdrawal of the appeal on the grounds of a voluntary settlement agreement with the other party. After the Meishan Intermediate People's Court ruled that the dismissal was allowed, Wu Mei applied to the court of first instance for execution of the first-instance judgment because Xicheng Paper Company did not fully implement the settlement agreement. The People's Court of Dongpo District of Meishan City supported Wu Mei's application for the execution of the first instance judgment. Xicheng Paper Company applied to the Meishan Intermediate People's Court for execution supervision and advocated not to execute the original first instance judgment.
Referee result
On July 7, 2010, the Meishan Intermediate People's Court made a reply to the No. 4 (2010) Eyebrow Supervisor. According to Wu Mei's application, it is not inappropriate for the court of first instance to accept the enforcement of the legal documents in force and should continue to be implemented.
Referee reason
The court held that: Xicheng Paper Company should know the legal consequences of the withdrawal of the lawsuit, that is, once the court decides to grant it the withdrawal of the appeal, the first-instance judgment of the Dongpo District People's Court of Meishan City is the effective judgment and has the effect of enforcement. Although the settlement agreement reached on the voluntary basis by the two parties during the second trial agreed on the relevant rights and obligations, Xicheng Paper Company waived the right of appeal due to the signing of the agreement, Wu Mei gave up the interest, but the settlement agreement was a litigation of both parties. The agreement reached outside has not been enforced without the confirmation of the production of the mediation book by the people's court. Xicheng Paper Company failed to fulfill the repayment obligation according to the settlement agreement, which violated the agreement between the two parties and the principle of good faith. Therefore, on the grounds that the two parties reached a settlement agreement, the request for not implementing the original effective judgment was not supported.
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