Real Estate Intermediary Contract Dispute Caseanalysis On Shanghai Zhongyuan Property Consultants Ltd Vs. Tao Dehua

With the rapid development of real estate agency industry in China, the disputes betweenreal estate agency and customers are also increasing,the behavior of “skip real estate agency”frequently occurred, and it not only damages seriously the legitimate interests of real estateagency but disturbs the normal order of real estate market transaction. December20,2011,the Supreme People’s Court issued the guiding case No.1-the second-hand housingintermediary the behavior of “skip real estate agency”, which provides a reference for thepeople’s courts handle similar cases and shows clearly direction for treating similar cases injudicial practice. This paper analyzes the case on the basis of the relevant legal provisions incontract law on the contract of brokerage and standard terms, combs the components of thebehavior of “skip real estate agency” and cause, ultimately confirm the responsibility of thebehavior of “skip real estate agency”, and strives to improve the guiding significance ofjudicial practice. Furthermore, I put forward my own suggestions for risk prevention of “skipreal estate agency” of real estate intermediary contract for reducing the occurrence of suchcases.In addition to the instruction and conclusion, this paper is divided six parts:The first part introduces the case，the judgment and the controversial focus of the case.Firstly，introduce briefly the case and the judgment.Secondly, introduce controversial focusof the case. The first controversial focus is the legal nature of “real estate purchaseconfermination” which Shanghai zhongyuan property consultants ltd signed with Tao Dehua.The second controversial focus is the efficacy of article2.4of “real estate purchaseconfermination”.The third controversial focus is whether Tao Dehua breached the contract.The second part introduces the definition of the legal nature of “real estate purchaseconfermination”.First, from the point of legal principle summarize the contract of brokerageincluding the definition of contract of brokerage, the legal characteristics, and the efficacy ofthe contract.Second,an introduction is made to differentiate contract of brokerage fromcontract of commission and contract of mandate. At the last, confirm legal nature of “realestate purchase confermination”combined with this case.The third part introduces the efficacy of article2.4of “real estate purchaseconfermination”.Firstly, analyze the definition and characteristics of the standard terms, thenconfirm the legal nature of the article of “skip real estate agency” combined with this case. Secondly, analyze efficacy of the standard terms and confirm the efficacy of the article of“skip real estate agency” combined with this case.The fouth part introduces whether Tao Dehua breached the contract. Firstly,find thecommon point of the definition of “skip real estate agency” according to some scholars’definition.Secondly,analyze reasons of “skip real estate agency”frequently,and analyzecomponents of “skip real estate agency” according to the reasons and operating procedures inpractice.Thirdly,introduce the points of scholars’ breach doctrine of liability of “skip realestate agency”. At the last, draw the conclusion combined with this case from the view ofcomponents of “skip real estate agency”.The sixth part introduces risk prevention of “skip realestate agency” of real estate intermediary contract. I put forward my own suggestions for riskprevention of “skip real estate agency” of real estate intermediary contract,which includethree points: First, make up the law loophole and definite clearly the damage compensationobligation of clients; Second, to maintain the efficacy of the article of “skip real estateagency” as far as possible; Third, interpret extensively the article425of contract law.