A Research On The Legal Protection Of The First Buyer Under The Circumstances Of Double Sale Of A Certain Immovable Property

As we know, double sale of a certain immovable property is very common indaily life. The legal status of the first buyer and the second buyer are equal regardlessof the birth time of their rights of creditors rising from the two distinct contracts ofsale, which means both of them are qualified to ask the seller to transfer theownership of the immovable property to them by a transfer registration in theRegisters. The price offered by the second buyer is often higher, so it is very commonthat the seller would like to have the registration changed on behalf of the latest buyer,which causes the impossibility of performance of his obligation to the first buyer. Theprotections offered by our legal system to the first buyer at status quo mainly manifestthemselves in the advance-notice Registration (Vormerkung in Deutsch) and theliability of non-performance of the contract, which are unfortunately not enough. Thispaper shall suggest some proposals to refine the system of legal protections of the firstbuyer in our nation on the foundations of categorizing and summarizing the means ofprotections settled down in other territorial legal units.Chapter One shall introduce the definition, origin and legal relations of doublesale of a certain immovable property. The obligation-contract-plus-form mode oftransfer of real rights recognized in China and the nonexcludability of the creditor’s right result in the emergence of double sale. Under the circumstances of double sale,the first and the second contracts of sale are both valid, and neither has stronger legaleffects.Chapter Two shall discuss the so-called advance-notice Registration, which hasbeen the earliest means of protections during the whole business process of doublesale to the first buyer. The buyer can resort to this advance-notice Registration rightafter the establishment of the legal relation of the first contract of sale, rendering it tobe a prior protection even before the emergence of the second buyer. Theadvance-notice Registration might be the most effective way of protecting theinterests of the first buyer. Once this sort of Registration is made, any legal act ofdisposition of the seller without the consent of the first buyer could be declaredinvalid.Chapter Three shall discuss such a complex and special question: what if thesecond buyer, out of vicious intentions, violating the Good Order&Custom,deliberately contracts with the seller and completes the bargain by a change ofregistration in order to harm the first buyer? Under such circumstances, manyterritorial legal units have provide the victim with two kinds of protections. On onehand, the first buyer may declare the invalidity of the second contract of sale based onits violation of the Good Order&Custom. On the other hand, he may contend that thesecond buyer has met the requirement of third party’s act of tort to the creditor’s rightand shall as a result, assume the tort liability.Chapter Four shall discuss the liability of non-performance of the contract(Special Performance and Damages) and the analogy of the replacement claim ofcompensation which is of an apparent German characteristics. The means ofprotections discussed in Chapter Two&Three, and the means of Special Performancediscussed hereby in the first quarter aim to assist the first buyer during his attempt tobecome the owner of the involved immovable property, while the Damages and thereplacement claim of compensation would fill the gap of his loss if the first buyer isinevitably unable to acquire ownership.Chapter Five shall propose some refinements to our present legal systems of protecting the first buyer based on some comparative analysis in order to guaranteehis interests, which shall include the replacement claim of compensation absent nowin China and better the existing system of the liability of non-performance of thecontract.