Real Estate Sold For The Legal Issues

Repeated buying and selling of real estate , also called dual buying and selling , refers to the act in which the seller , after signing the business contract with the first buyer and before the first buyer's handling the registration of the real estate ownership transfer, just sells the real estate to the second buyer ,or even signs business contracts with the third or the fourth buyers before the second buyer's handling the registration of the ownership transfer .Whenever there occurs the repeated buying and selling of real estate ,the legal relations between the seller and the buyer ,especially among the buyers ,are becoming rather complicated .In differentiating right in personam and right in rem , the mode of changed right in rem will appear ,and a series of legal problems might be derived . The problems concerned are the effects of several business contracts , the ownership of the real estate , and the relief to the buyer who fails to obtain the ownership of the real estate .The differentiation of right in personam and right in rem is a basic problem concerning repeated buying and selling of real estate . Different ways of differentiation will lead to different modes of changed right in rem . Currently throughout the world , there are mainly three modes of changed right in rem , which are informal system of right in personam (with the representatives of France , Japan ,Britain and the United States ) , formal system of right in rem ( with the representatives of Germany and Chinese Taiwan ) and formal system of right in personam ( with the representatives of Austria , Russia and South Korea ) . These three modes of changed right in rem have their advantages and disadvantages , and have different functional mechanisms to repeated buying and selling of real estate . Before the issue of the General Rule of the Civil Law , China adopted the contract registration validity system of the Soviet Union . After that ,we basically began to adopt formal system of right in personam in carrying out a series of legislations .The Law of Right in Rem recently issued continued to adopt formal system right in personam and , meanwhile , took in some rational elements in informal system of right in personam ,which coincides with the essential trends of the case doctrine in modern civil law.Under the formal system of right in personam , the effect of several business contracts should be explained as follows . After the repeated selling of the real estate , the first business contract signed between the seller and the first buyer . accords with the regulations in the law of right in personam and is supposed to be valid . Before the first buyer's handling the registration of the real estate ownership transfer , the ownership still belongs to the seller, and the contract signed between the seller and the second buyer is considered valid . If , however ,the first buyer has handled the registration of the real estate ownership transfer , the business contract signed at this time between the seller and the second buyer is beyond-right handled . the beyond-right handled contract is not invalid , however ,according to the principle of differentiating right in personam and right in rem ,the second business contract is still valid . The second contract's failure to handle the registration of the real estate ownership transfer only affects the effect of ownership transfer, but has nothing to do with the effect of the business contract of the right in personam. For the same reason, if the second buyer has handled the registration of the real estate ownership transfer , according to the principle of differentiating right in personam and right in rem ,the business contracts are still valid . Because of the validity of these business contracts , both the first and the second buyers have obtained the common objectives of the real estate and handled the registration of the ownership transfer and have definitely gained the ownership of the common objectives . If , however , the seller , after signing several business contracts , haven't handled the registration for the buyers , according to the equity and randomness nature of right in personam ,the seller has the right to handle the transfor registration of the real estate for the first and the second buyers . Before handling the registration of the real estate objectives , the conflicts among the tenants or the co-owners should be settled based on the principle of priority.After the seller's handling the transfer registration of the common objectives ownership for one of the buyers , the buyer who fails to obtain the objectives ownership is bound to suffer the loss and is viewed as the victim . In practice, usually the first buyer turns out to be the victim , and occasionally the second buyer does . The Law of Right in Rem in our county sets up a system of predictive registration for the first buyer . If the first buyer , without the predictive registration , suffers the loss .three ways and means can be used to relieve him in rights , which are compensation for default of debts .compensation of cancellation rights .when the second buyer suffers the loss ,he can be relived through the compensation for default of right in personam .The compensation for default debts . If the seller defaults the debts , the buyer who does not obtain the common objectives ownership can choose to terminate the business contract and demand form the seller a compensation for breach of contract. There are some controversies in academic circles about the loss of obtainable benefits should be included in the compensation . The obtainment of this benefit remains the same whether the first buyer has a purchase-and-resale plan . The compensation for infringement of right in personam .In china , legislature does not stipulates plainly the system of infringement of right in personam , and the academic circles had different opinions about this very system . Nowadays ,in the legislation and case judgement of most countries and regions , they usually believe the infringement of right in personam on the part of the third party . When the second buyer has a deceptive act of infringement of right in personam ,and has already obtained the real estate ownership , the specific case is supposed to be defined in order to protect the accomplished transaction order form being spoiled . When the infringement to the first buyer's right in personam is just the result of the seller's act ,the first buyer could only buyer could only demand compensations for breach of contract ,instead of demanding damage compensation for infringement of right in personam to the second buyer or the seller .otherwise ,it is going against the basic principle of relativity system of right in personam .The creditor's cancellation rights . The Articles 74 and 75 in The Contract Law of our country make a general stipulation .but the stipulation does not make it clear whether the creditor of the property can execute his cancellation right in order to protect the fulfillment of the particular right in personam .The creditor executes the cancellation rights to recover the liability property , the purpose of which is to protect the benefits of all the creditors .The effect of the cancellation rights on the third party's benefit is great ,so only when the particular right in personam is transformed into compensation right in personam ,and when the debtor is incapable of paying it off , the cancellation right can come into effect . The cancellation rights should be executed by legal proceedings within legal time limit.