On the sale of housing contract intermediaries intermediary remuneration claim protection of the right

Abstract house sale contract intermediaries, intermediary remuneration claims have attached conditions and uncertainty in the intermediate purpose of the contract is not merely an expectation achievements before the interests of nature. China's current civil legislation on the intermediary contract rights and obligations of the parties only provides 426 Once truthfully reporting obligations and compensation claims, not detailed provisions principal obligations, which requests compensation for intermediaries, protection of the right is extremely unfavorable. In practice, buying and selling homes in the principal intermediary relationships often by expanding the 'Contract Law' Article 427 Where the broker to limit the scope of compensation claims. In this paper, the right to request compensation for the intermediaries, the nature, the realization conditions, limitations, and other issues make a specific analysis, in practice, in order to better protect the remuneration of intermediaries, claims play a guiding role.

Paper Keywords intermediaries, compensation claims uncertainty contract is established

Sale of housing intermediary intermediary contract is a contract, refers to real estate agencies in accordance with the requirements of clients in the areas of real estate transactions to report to the opportunity to enter into a contract or enter into a contract to provide media services, the client pays the remuneration, One real estate brokerage organization called intermediaries, to pay compensation for the client side. In the intervening contract undertake to pay the principal reason for the obligation to pay, its purpose is to treat the intermediaries, the burden of the obligation to pay, the payment obligation is to treat intermediaries, intermediary services provided. These contracts are the most typical feature is the principal legal obligation to pay compensation intermediate uncertainty. Where the broker compensation claims intermediary contract formation in order to achieve the purpose of the premise, and the purpose of the contract can be achieved intermediator uncertain, so the client's obligation to pay compensation if required to fulfill also uncertain.

First, the intermediaries, the basic principle of compensation claims

(A) Where the broker compensation claims according to the contract with the client or the nature of the legal burden of the obligation to pay compensation shall correspond to the remuneration of intermediaries, claim. Prior to the establishment in the sale of housing, 426 Once compensation claim is not a complete, specific rights, but only a possibility in the future to obtain compensation or qualifications, but the right to expect the establishment of requirements in the future is to be fully equipped with the possible nature, or that right under the intermediaries, the pursuit of benefits will not be realized.

Intermediation purpose of the contract implementation, the expected benefits that translate into substantive rights. Entity the right to request compensation rights as requested amount of money, with claims that are common relative, offensive, that the request for the payment of the principal reward specific behavior, and the right to take delivery of the payment, but before that, intermediaries, shall request principal pays the remuneration, notwithstanding the pre-payment of remuneration, because there is no legal basis would constitute unjust enrichment, applicable law and the intermediaries, the principal of the bonds between the unjust enrichment.

(Two) Where the broker to obtain compensation must possess Elements 1. Contributed to the introduction of contract is formed. However, some scholars believe that the signing of the sale of housing does not mean the end to complete the transaction, intermediaries, may be limited to the scope of the obligation to contribute to the establishment of the contract of sale should also be extended to fulfill the contract of sale.

2. The establishment of the sale of housing, with the introduction of a causal relationship intermediator. Namely the establishment of the contract, because intermediaries, comprehensive and appropriate to fulfill the intermediate obligations.

Only both have commissioned personnel liable to pay compensation obligations.
(Three) Where the broker compensation claim legal characteristics 1. Attached conditionality. China's 'Contract Law' clearly provides that compensation claims intermediaries, access to and facilitate the realization of intermediaries, formed the basis of the contract, the contract was established to promote the purpose of the contract with the intermediary. From the facts that prompted the establishment of the contract requirements, intermediaries, can not be asked to pay compensation expectation interests transformed into a reality, with the right to request the efficacy of vested rights.

2. Uncertainty. The realization of the right to request compensation mentioned above, must fulfill a contractual obligation to contribute through intermediaries, the principal and the third person to enter into real estate sales contracts as a precondition. But the contract of sale established only with potential rather than absolute. Where the broker can contribute to establishment of the contract is not a key factor in whether I intermediaries, such as about flawless intermediary obligations fulfilled, and depends crucially on whether the principal and the third person to reach agreement on real estate transactions, the counterparty based on the principal qualifications, credit and whether the contract entered into between the selectivity of uncertainty, intermediaries, to obtain the right to request compensation and achieving substantially uncertain.

Second, the 'Contract Law, the' fourth 百二 seventeen pairs of intermediaries, restrictions on compensation claims

China's 'Contract Law' Article 427 provides that: Where the broker did not contribute to the establishment of the contract shall not be required to pay compensation, but may request the principal to pay the necessary expenses intermediary contract. Understanding and application of the provision, through the following three aspects specifically addressed.

(A) the terms of the scope of the provision to address is the frustration of the purpose of the contract in the intermediate case, intermediaries, can claim compensation claims issue. The following describes simple, if not specified, the 'Contract' means the intermediaries, procuring the execution, the principal parties to the contract with the relatively artificial 'sale of housing.' Specifically addressed four areas of:
1. Where the broker procuring the execution of the contract is confirmed as invalid, is revoked Where the broker compensation claims. Intermediator contributed to the contract, including its implementation of the three parties in civil actions, and when the contract is confirmed absolutely null and void, revoked or determine the effect does not occur when part of the 'Contract Law' Article 427 are required ' not contribute to establishment of the contract 'category, identified intermediator contributed a contract is confirmed as invalid revocation is not a' not contributed to establishment of the contract 'category, it is not of course mean that intermediaries, on the enjoyment of the right to request compensation flawless. The contract is confirmed as invalid, revoked the right to request compensation for intermediaries, in the end whether the impact or impact? Solve the problem, resulting in the contract should be based on the effectiveness of fault attributable to defective identified separately.

If that is the subject of specific reasons attributable to the principal subject matter occurs, ie there is only the lack of validity of the contract the client is at fault, intermediaries, there is no fault, the client shall pay the intermediary remuneration; if that can be attributed to a particular subject matter is due to person responsible for the subject matter of the relative occurrence, the principal intermediary should pay 426 Once paid, the client pays compensation after the relative fault of the contract due to invalid or revoked, the principal may be paid have been paid as a direct loss of intervening Request relative compensation.

2. Intermediaries, contributed a contract is legally released afterwards when 426 Once paid claims. Unilaterally terminate the contract with the agreement, including lifting lifting, lifting and conventions statutory release. Based on 'contract law' requirement, the purpose of the contract due to force majeure can not be achieved, delay in performance, not entirely fulfilled, can not fulfill such circumstances, the contract party enjoys unilateral right of cancellation may be due to the parties the right to terminate the contract to the future exercise of leaving loss of effectiveness, or the parties may terminate the contract by consensus. It must be noted that, regardless of what type of termination of the contract, must be based on the premise valid contract exists, it indicates that intermediaries, has successfully contributed to the establishment of the sale of housing, then intermediaries, of course, entitled to claim compensation.

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3.Relative or principal is not appropriate, and fully implementing the sale of housing compensation claims when intermediator. This is the judicial practice, most clients of confusion, that 'led to establishment of the contract 'means must ultimately be' handled real estate registrar. ' As mentioned earlier, only the formation of the contract with the client relative meaning of that consistent results, and ultimately to apply for the sale of housing real estate registrar is full and proper performance results, the two are not the same.

4 due to the misconduct of the principal causes of failure to establish contractual remuneration payment problems. Although the above three conditions are established contract, but may be attributable or not attributable to the principal, the subject matter of relative purpose of the contract resulting unrealized compensation claims intermediaries, when the impact. Seen intermediator facilitate establishment of the contract does not necessarily mean that intermediaries, have the right to request compensation, and that led to establishment of the contract does not necessarily lead to the loss of compensation claims intermediaries, it? The answer is no. This is what led to the establishment of the contract intermediator not the case NA 'Contract Law' Article 427 provides the only exception - the principal cause misconduct contract can not be established. Judicial practice, the most common is the 'jump' phenomenon.

The so-called 'jump', also known as 'jump intermediary' refers to the principal and the real estate agency intermediary contract entered into, in order to avoid the obligation to pay compensation, the buyer privately with intermediaries, introduce reached housing sale and purchase agreement or otherwise entrust others to provide intermediary trading services behavior. In this case, intermediaries, intermediary obligations have been fully complied with, is not set up to promote the sale of housing purely the fault of the client, intermediaries, does not thereby lose compensation claims, once identified 'jump intermediary' act up, not only to the principal fulfill the obligation to pay compensation, as the case may need to undertake the appropriate penalty.

It is generally believed, because the client's misconduct resulting contract can not be made, the contract shall be considered intermediator has led to the establishment.

(Two) the scope of necessary expenses necessary expenses depending on the scope of intermediary services, generally considered intervening in the affairs of intermediaries, intermediary contract duration, of all involved, 'To facilitate the establishment of the contract,' the transaction. Usually include: (a) Where the broker is bound to contribute to the establishment of the contract actively looking for a suitable relative who find the process of spending relative advertisements printed promotional materials and other promotional costs; (2) Where the broker and the client on the relative entered into the sale of housing consultation process, the payment of traveling expenses, printing costs, communication costs, direct costs of site use fees.

(Three) whether the parties have agreed otherwise, except existing civil legislation advocates, intermediaries, the results can only request compensation for services not contribute to establishment of the contract, did not achieve labor outcomes, thereby providing a service, paid labor intermediaries, not assert any labor costs, only a request for reimbursement of necessary expenses settled. Such a provision for intermediaries, fairness, compliance with civil law 'equivalent compensation for' the basic idea, whether it is conducive legal relationship between the parties intervening weigh the interests of this issue is debatable.

If the client and the intermediaries, in the contract, did not contribute to the sale of housing in intermediator established case can also be paid for its services is entitled to compensation claims, the agreement could exclude the 'Contract Law' four hundred and twentieth seventeen applicable? According to China's 'Contract Law' freedom of contract and the basic principles to encourage trade, civil entities have the right to set their own free will according to their rights or obligations under the burden, so if the client did not contribute to the voluntary establishment of the contract in intermediator case of intermediate payments compensation is also not prohibited by law and opposition.

Third, intermediaries, legal means of self-protection

(A) the intermediary contract specifically set up to circumvent the terms of a single jump principal intermediaries, to stop jumping single act to protect their own information resources and maintain their pay intermediary services, can be entered into with the principal intermediary contract agreement 'prohibits principal use of intermediaries, to provide housing information, bypassing intermediaries, who signed with the sale of housing relative. 'to circumvent the' jump 'behavior.

Most scholars believe that based on the current housing market is not yet standardized, often contrary to the principal transaction principle of good faith, for the pursuit of their own interests at the expense of intermediaries, to maximize the benefit, hence the need to recognize the validity of such provisions to protect intermediaries the legitimate interests of the company, to mobilize the enthusiasm of the intermediary industry, and promote the healthy development of intermediary services market and maintain market transaction integrity.

(Two) in the intermediary contract specifically set up a 'follow-on' clause in practice, the principal except through concealment relative who has entered into a contract for the sale of the house way to circumvent the obligation to pay compensation to the intermediaries, in addition, may also be through the 'post-jump single 'way. To avoid this phenomenon, intermediaries, can the terms in the contract are as follows: 'Where the broker for the client to provide the opportunity to enter into a contract, the principal term of the contract in the intermediary through which the opportunity to enter into the sale of housing relative, In the intervening period, or after the termination of the contract within two months (or such other period as agreed by the parties), directly or indirectly, by intermediaries, identified initially entered into the sale of housing relative to the case, the client should still intermediator intermediate stipulated in the agreement to pay compensation. 'This is the real estate intermediary contract traded in the' post-valid 'clause.

In the 'Beijing real estate brokerage contract' in the 'follow-up period' clause has been confirmed that the contract clearly stipulates Article IX. 'After the termination of this contract within a certain period, if the client directly or indirectly with a broker initially identified by customer transactions, then the broker is entitled to enter into contracts brokerage commissions.' This intermediary contract for the parties to set the ' follow-up period 'to provide a legal basis. 'Follow-up Period' setting, you can effectively prevent intermediaries, being 'dumped', but also effectively protect the legitimate interests of the real estate intermediator.

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