The Study On The Right Of Claim Of Middleman In A Intermediation Contract Of Real Estate Sales

Nowadays, active market economy resulted in the rapid development ofintermediary industry especially about real estate intermediary organizations.Disputes and lawsuits happened constantly and differently with more and moreintermediary companies running intermediary business of real estate sales.This thesis is composed of four parts. The introduction concludes three types oflawsuits, the first is middleman brings an action against the seller or the buyerclaiming for payment of remuneration, expenses and liquidated damages, the secondis the seller or the buyer brings an action against the middleman with a claim ofreturning deposit, and the third is one party in the sale brings an action against theother party claiming for returning deposit, payment of liquidated damages orcontinuing to perform the intermediation contract. All of these above involve severalquestions in trial practice, such as how to define the nature of the contracts of variousforms, what’s the standard of completing intermediating activities, and how toidentify the phenomenon of “jump-list”. In the following, the key points come outwith three kinds of claims, remuneration claim, reimbursement claim, and penalty forbreach of a contract claim.In Chapter one, several questions are clarified before stating remuneration claim,the intermediating services just concern about intermediation not opportunity andintermediation contract is unilateral contract unless the parties stipulate otherwise.Then four constitutive requirements are discussed in detail including that, a contract is executed, the contract is effective, the contract is prompted by the middleman and thecontents are almost the same with the intermediation contract. Meanwhile, theremuneration claim under special circumstances is also mentioned, like contract isinvalid, rescinded, dissolved and so on. This chapter ends with what’s the amount ofremuneration and whether an appropriate reduction can be applied.The second chapter mainly concerns about the reimbursement claim. First,opinions about this topic in legislation and practice in domestic are stated following acomparative study. The conclusion is reimbursement claim will not be approved inprincipal unless two parties have stipulated in the contract otherwise, for middlemanshould take the risk of failing to prompt the making of a contract, two sides haveunequal status in which middleman is much more stronger, necessary expenses arecontained in remuneration in most cases, and expenses incurred are often inexpensive.Chapter three attempts to analyze the phenomenon of client skipping over middleman,to which the Supreme People’s Court issued No.1guiding case, defining that thebuyer establishes a sales contract with the seller with skipping over middleman butmakes use of information middleman provided, is breach of intermediation contract.We should decide the validity of such special clause giving explanations from aperspective of standard clause. In addition, the constitutive requirements in No.1guiding case are strict and will be restricted in practice. With respect to the othercircumstances, especially about exclusive entrust, there are still various points. So thispart attempts to introduce stipulations in German Law on exclusive entrust andillustrate application in Chinese Law.