On The Legal Nature And Effect Of Real Estate Subscription Book

Real estate subscription book is one of the subscriptions that wildly used in commercialhousing selling. It is signed before both parties sign a formal real estate sale contract. Bothparties promise the related matters about signing a formal real estate sale contract in the futurein the subscription. In the practice, the real estate developers often sign these subscriptionbooks with buyers. With the large number of subscription book signing, there are more andmore legal disputes concerning subscription book. However, there haven’t specific provisionsabout the legal nature, the force of law, and the liability for breach of the subscription book inthe law, so the adjudgements of these legal disputes are quite difference between differentcourts. So it is an urgent need that analyzes the related issues about the legal nature, the legaleffect, and the liability for breach of the subscription book. Because there are some scatteredprovisions concerning the subscription book in the judicial interpretation, the paper tries toanalyze legal nature, the legal effect, and the liability for breach of the subscription bookbased on the theory and the law article and hoping it can provide some help to the judicialpractice.The paper consists of four parts:In the first part, there is an introduction of the case and the court referee. And thus elicitthe focus of controversy about this case.The second part mainly analyzes the legal nature of the subscription book based on thetheory and the law article. Through analyzes the different views about legal nature of thesubscription book in the academic community, the paper holds that the real estate subscriptionbook promise the related matters about signing a formal real estate sale contract in the future,so it is a reservation contract for the real estate contract.In the third part, the paper mainly analyzes the related issues about the legal effect, theliability for breach of the subscription book. The paper holds that different sort reservationshave different legal effects. So the paper classifies the subscription book first. The paperidentified the subscription book, which only promise signing a formal real estate sale contractin the future as preliminary agreement to negotiate. For this subscription book, the paper holdthat its legal effect is must negotiate. But for the subscription book that also promise somebasic information about the housing, the paper identified it as preliminary agreement with open terms and its legal effect is must sign.And in the fourth part, the paper analyzes that the breach party should assume liabilityfor breach if they breach subscription book. At last, the paper analyzes the related issues aboutthe nature of the deposit, the appliance of the fine of deposit, the compulsory performance,and the compensation. The paper holds that the preliminary agreement to negotiate cannot becompulsory performance, but the preliminary agreement with open terms can. About thecompensation, the focus is the extent of compensation. The paper holds that, for thepreliminary agreement to negotiate, the observant party only can ask the compensation foractual loss. But for the preliminary agreement with open terms, the observant party not onlycan ask the compensation for actual loss, but also can ask the compensation for possiblebenefits.In the fifth part, the paper analyzes the case that mentioned in the first part based on thetheory that in the second and the third part and the writer’s view.