The Legal Analysis And Judicial Response Of The Case Overlapping Of A Loan Contract And A Real Estate Saling Contract

In practice, contracts are diversing and complex which are far more complex than what we have learned in school. Facing with these cases,the judge will be confused. Theory should serve for the practice and provide guidelines for practice. Thus, this thesis chooses to analysis the case which the parties made the loan contract and the contract for the sale for the same thing, in order to sum up experience in handling similar cases and provide recommendations. On the one hand, on basis of this legal relationship between parties, this thesis aim to define the nature of the case of disputes, and to find the reasonable results of the case.On the other hand, this thesis aim to sum up the general ideas by glimpse of the individual case, in order to provide guidelines for the judicial practice.In addition to the introduction and conclusion, the thesis is divided into three parts:The first part is the case description, which concisely overviews the basic facts, the focus of controversy and the finding of the case of Mr Tang &Mrs Huang v. a real estate company the case. In the case, the defendant signed a "loan contract" and a"real estate saling contract" with the plaintiffs for the initiative to get financing. Article II of Chapter II of the "Loan Agreement" provides the defendant should pay off the principal and interest in a certain period.If failing to do it, the defendant agrees to fulfill "real estate sales contracts". After signing the contract, the defendant issued a receipt of money of a real estate to collect 5.72 million yuan. Then, the defendant failed to pay off principal and interest, the plaintiff requested the defendant to the court to perform the "real estate saling contract".The plaintiff and the defendant disagree on the dependence of "real estate sales contracts" which is subordinate to the "loan contract" or a separate contract,and whether Article II of Chapter II is an invalid fluidity clause. The finding of trail support the plaintiffs appeal.The second part is the legal analysis of the case. The legal analysis is around the issue of the two sides:Firstly, whether "real estate saleing contract" is independent of the "loan contract". The purpose of signing the contracts lies in providing two options for the same financing relationships,and to maximize interests of all parties,both are the real meaning of parties. The clauses of the" real estate saling contract "is complete, clear, and the contract has been registrateed. Therefore, the "real estate sales contracts" is an independent contract. Secondly, analyzing whether ArticleⅡof ChapterⅡof "loan contract" is an invalid fluidity clause. The terms is drastically different from the invalid fluidity clause in form, and the plaintiff bought the real estate is a current price, the provision for invalid fluidity clause completely non-applicable.In contrast, applying the provision for invalid flow mortgages encourage defendant's bad faith, and the plaintiff will burden the risk entirely. Third, after recognizing the independent and effective of the "real estate saleing contract", and effective of Article II of Chapter II of "loan contract", combined with the facts, it is reasonable to come to the final outcome of cases:the defendant should fulfill the "real estate sales contracts."The third part is the universal recommendations. No matter of how is complex and tangled of the contract disputes, as long as we uphold the concept of fairness and justice, and pay attention to the following aspects,it is sure to get a reasonable finding. Firstly, the judge must completely acknowledge materials of the case, to explore the real purpose of the contract, precisely define the nature of the contract. Secondly, the judge must respect for autonomy of will and can not identify the clause of a contract is invalid. Thirdly, the judge must balance the interests of the parties, reasonably allocate the risk of transaction. The above-mentioned aspects are not completely separate.In a word,fairness and justice should be the most fundamental principle.The judge should apply these rules comprehensively,in order to achieve justice, and to achieve positive guidance.