The Research On The Legal Issues Of Confirmation Sales Contract For Commercial Housing Between Yanhai And Tanglong

In recent years,a new guaranty style that in the form of confirmation sales contract for commercial housing which guarantee the private loan contracts widely existed in our country,this is an atypical real right for security in the forming customary law.In this case,the company Yanhai as defendant,has signed many pre-sale contract for commercial housing in order to guarantee the contracts for loans of money with Tanglong and other people.Then they signed the commercial housing sales contracts based on the Pre-sale contract for commercial housing.This is an atypical guarantee style.The controversy of this case focused on following three points.Firstly,how to identify the legal relationship between parties when the parties have wrong expression of intention.Secondly,the nature of Pre-sale contract for commercial housing and the contracts for commercial housing are the variation of obligation or sales type guaranty in the form of selling commercial housing.Thirdly,in the pre-sale contract for commercial housing,whether the contract that in the form of transferring ownership of commercial housing aim to guarantee the contracts for loans of money can be identified as fluidity clause,I have explicitly analyzed on the three points in this paper.Firstly,when the parties have wrong expression of intention,it is necessary to explain the item’s meaning for expression of intention,relative clause,nature of behavior,habit,other party’s trust and the principal of good faith in the case that has the other party,and then determine the parties’ legal relationship.Secondly,the contract for commercial housing should be identified as the guarantee of the contracts for loans of money,or called sale type guarantee that in the form of confirmation commercial housing sales contract,according to analysis the Pre-sale contract for commercial housing and commercial housing sales contract and a series of supplementary agreement based on the loan relationship.Thirdly,in the relationship of guaranty,when we identified the transferring ownership of commercial housing is a fluidity clause in pre-sale contract for commercial housing that will violate the material meaning of the fluidity clause in the item 186 of the Poverty Law and item 48 of Guarantee Law.So,we can’t identified this contract as fluidity clause.In a word,it not only can we express the real intention of Yanhai,but also it will protect the interest of Tanglong and so on,if consider the contract for commercial housing selling as the sale type guaranty of commercial housing sales.When the debtor can’t repay the loan,creditor will get the right of transfer the ownership of the commercial housing based on the contract,which can protect the fairness and balance the interest in contract field.In order to improve the effective of transaction,we should distinguish the new atypical guaranty style between old guaranty one,permit the development of new guaranty style,and then make a better development of our social economy.