Some Studies Of Commercial Housing Subscription Agreement

The main sale mode of the real estate industry in China is pre-sale, in which both parties of the transaction need to sign a commercial housing subscription agreement. In practice, the commercial housing subscription agreement has different names, such as commercial housing subscription book and commercial housing reservation sheet. Despite of different names, the essence is the same. Before 2000, the achievement of study on the commercial housing subscription agreement is relatively rare in China, and in 2003, the Supreme People’s Court issued the Interpretation on Certain Issues Concerning the Application of Law in Trying Cases Involving Disputes over Contracts on Purchase and Sale of Commodity Premises, in which the Article 4 and the Article 5 stipulations provide the basis for resolving the disputes attributed to the commercial housing subscription agreement in the real life effectively. In order to resolve the disputes over the commercial housing subscription agreement more effectively, this article will analyze and discuss the commercial housing subscription agreement from four aspects, combining with the stipulations of Interpretation on Certain Issues Concerning the Application of Law in Trying Cases Involving Disputes over Contracts on Purchase and Sale of Commodity Premises and juridical practice.Part 1 focuses on the discussion of the meaning and nature of the commercial housing subscription agreement. The commercial housing subscription agreement is a preliminary written confirmation for the matters related to the commercial housing transaction by both parties and is an agreement signed before the signature of commercial housing pre-sale contract or commercial housing sales contract. Its nature is a pre-contract; however, in the case of the subscription agreement with the major contents of the pre-sale contract, it should be taken as a pre-sale contract but not a subscription contract.Part 2 analyzes the difference between the commercial subscription agreement and the concept of relevant laws. Focus on the analysis of the essential difference between the commercial subscription agreement and the conditional time period contract and the difference between the commercial housing sales contract and the housing sales contract, and meanwhile compare the difference between the commercial housing subscription agreement and the letter of intent, in order to pave the foundation for the better identification of the nature of the subscription agreement in juridical practice.Part 3 concentrates on analysis of the application of Article 4, the clause of the deposit of the Interpretation on Certain Issues Concerning the Application of Law in Trying Cases Involving Disputes over Contracts on Purchase and Sale of Commodity Premises, which explains the nature of the deposit in the commercial housing subscription agreement and clarify the following four points for the application of the deposit stipulations:the consensus of concluding a deposit treaty, the behavior of deposit payment, the validity of the agreement and the behavior of any party who fails to fulfil the subscription agreement. And it also makes an analysis on whether the fault is necessary in detail.Part 4 explains the viewpoint that in case of the breach of the commercial housing subscription agreement, the breaching party should not be forced to perform continuously. At the same time, it attempts to demonstrate that the claim for the breach of the agreement should include direct losses and indirect losses by combining the practices,.