Analysis On The Nature And Legal Application Of Real Estate Brokerage Contract

This paper is divided into four parts. The first part defines and explains of the concept ofreal estate brokerage contract. Real estate broker real estate brokerage contract is a contractwhich entered into by real estate brokerage agency and client, which the real estate brokerageagency provides service such as the reporting of entering into a contract, agent house transfer,mortgage and utilities transfer, the client pays the remuneration to the real estate brokerageagency. Real estate brokerage contract is a contract which real estate brokerage agent dealwith issues related in the name of the client’s. It is an onerous contract in which real estatebrokers provide services and the client pays the price. And it is also a bilateral contract.Meanwhile, real estate brokerage contract is not a written contract in general.The second part is the analysis of the legal nature of the real estate brokerage contract.Real estate brokerage contract is established between equal entities, aim to establish, vary, andeliminate the relationship of civil rights and duties which has the nature of a civil contract.According to a contrast between the real estate brokerage contract and intermediary,delegation contracts, the author finds that there exist some similarities among them. But theintermediary contract and the delegation contract cannot fully cover all the feature of realestate brokerage contract. Through the investigation of real estate brokerage contract inBeijing, Tianjin, Chongqing and other places and transition phases, the author finds that realestate brokerage includes both intermediate and commissioned legal relationships. Furtherclarifying of the contract simultaneous and hybrid contract gives the conclusion that the legalnature of the real estate brokerage contract is a combination of the nature of intermediary andcommission contract.The third part is the legal application of real estate brokerage contract. Due to theconfusions in identifying the legal nature of the real estate brokerage contract, there are manyproblems in its application of law. As the real estate brokerage contract belongs to the typeassociation contract, therefore, the eonfliet of law of real estate brokerage contract is toprimarily decompose the hybrid contract, apply stipulations of different typical contracts todetermine the rights and obligations, then if disputes still exist, the way to solve the problemis to infer the intentions of the parties. Specifically, the statutory rules of commission andintermediary contract can also be partly applied to the application of real estate brokerage contract.The fourth part is the solution of specific questions of real estate brokerage contract. Thispart explains the right of claiming a reward in first, and as intermediary right of claiming areward is the most important part of the right of claiming a reward in real estate brokerage, sothe intermediary right of claiming is focused in the section. The ascertainment of whether thecontract between the client and the third person is established or not should be prior to theascertainment of right of claiming of real estate brokerage. There are two standards for theascertainment of whether the contract is established or not: one is the meeting of mindsbetween the real estate buyers and sellers and the other is there exists a cause-and-effectrelationship between the real estate brokerage agent’s service and the establishment of thecontract. After the establishment of the sales contract, the client and the third party terminatethe contract for some reason, the right of claiming of the real estate brokerage will not berestrained because of the termination of the real estate sales contract. Meanwhile, this partalso presenting problem of the real estate broker “gain the price difference” is analyzed, andgiving some regulation recommendations form a civil law perspective. Two acts in real estatebrokerage acts should be deemed as validity to be determined; they are “gain the pricedifference through buying low and selling high conduct” and “gain the price differencethrough preventing from meeting”. If the agent acting as bilateral agent, then it is up to theclient to decide the validity of the contract. As fraudulent behavior involved, the third act“gain the price difference through direct purchasing”, the way to prevent this very act fromhappening is to prove the subjective intent of fraudulent.