The Explanation And Identification Of "House Sale As A Substitute For Paying Loan" Clause

Researching the judicial adjudication of the “House Sale as a Substitute for Paying Loan”Clause contributes to survey the major viewpoints,as well as the change in attitudes,of courts at all levels on this sort of contracts.The explanation and identification of “House Sale as a Substitute for Paying Loan ” Clause can be of enough evidence in condition of starting with typical case analysis,probing into the reasons of adjudications,conducting empirical analysis and probing into the systemic views of judicial departments on “House Sale as a Substitute for Paying Loan ”Clause.Researching the explanation of the “House Sale as a Substitute for Paying Loan”Clause is aiming to ascertain the legal attribute of this sort of contracts,and to determine its force.Generally,the “House Sale as a Substitute for Paying Loan ”Clause falls into five forms,first of all,the loan contract and the sale contract;Secondly,the “House Sale as a Substitute for Paying Loan”Clause exists in the loan contract or the sale contract;Third,the sale contract and supplementary agreement;Fourthly,loan contract and supplementary agreement;Fifthly,repayment pledge form,without the sale contract and loan contract.Yet,it essentially covers three situations: guarantee,pay off,debt alteration.2Specifically,guarantee,it is the most common situation,the second house salecontract is the guarantee for the implementation of the loan contract;pay off is that the parties collectively agree the debter to pay off the debt of the original loan contract in the manner of fulfilling payment of the sale and purchase contract;Alteration is that the original loan contract change for house sale contract,the seller shall have the obligation to consign the house,transfer ownership,the buyer is due to the original loan free from consideration of the payment.Researching the identification of the “House Sale as a Substitute for Paying Loan”Clause is aiming to establish specific factors of identification and relatively unified criteria,and to provide relatively reasonable rules of validation.The proper construction of “House Sale as a Substitute for Paying Loan” Clause requires the court to take into consideration the intent of the parties,the objective situation of the case,and the corpus of Chinese civil laws and regulations.It has particular emphasis on the three explanations of the “House Sale as a Substitute for Paying Loan”Clause(guarantee,pay off,debt alteration),and certainly has their own issues.To avoid theoretical dispute,we will pick the date when the“House Sale as a Substitute for Paying Loan”Clause is signed as the key to solving problems of the identification of the attribute and force of the contract,namely,dividing this issue into “the contract which is signed before the deadline of expiration for performance” and “the contract which is signed after the deadline of expiration for performance”.This is essential for explaining and identifying the “House Sale as a Substitute for Paying Loan”Clause.For the first kind of agreement,can be regarded as basis of the original debt creditor's rights guarantee,expire after creditors may choose to continue to claim to repay the loan,you can also choose to register liquidation under the obligation of house registration;And for the second type of agreement,it can be seen as change in the way,is a kind of debt that the lender may require that the contract for house transfer registration procedures,as to the borrower can exercise the cancellation right such as the reason of "unfair",Otherwise,the borrower need to repay the loan or to perform its obligations under the house sale contract.In addition,it may as well be regarded as a new exploration that the term of3“before the deadline of expiration for performance” is sequentially divided into “thelender does not offer the loan” and “the lender does offer the loan” and the application of Lex commissoria prohibition are excluded from the later(the lender does offer the loan before the deadline)as a purposive deflationary explanation.Specific rules that can be as follows:Before the deadline of expiration for performance,and the “House Sale as a Substitute for Paying Loan”Clause signed when the lender does not offer the loan,the creditor's claims to repay the loan the court shall be supported,and only on the premise of clearing duty,the require the debtor to handle the transfer of the creditor,shall be supported.Before the deadline of expiration for performance,and the “House Sale as a Substitute for Paying Loan ” Clause signed when the lender does offer the loan,creditor's claims to repay the loan,shall be supported;Require the debtor to handle the transfer of the creditor directly,shall be supported,but may not be a defense against a third person in good faith.In regard to “House Sale as a Substitute for Paying Loan”Clause signed after the deadline of expiration for performance,practical departments regard it as the modification of debt,have certain rational sense.In the concrete explanation and recognition,however,should the contract freedom principle,contract legal principle,contract fair principle.In regard to “House Sale as a Substitute for Paying Loan”Clause signed after the deadline of expiration for performance,this paper puts forward the following concrete determination rules:“House Sale as a Substitute for Paying Loan”Clause signed after the deadline of expiration for performance,based on the comprehensive considerations identified factors,identified as debt alteration,if there is no contract is invalid or can change,revocable,the creditor demand that the debtor directly deal with the transfer of the creditor,shall be supported.In order to avoid abuse of power of the judge at the same time in order to unify the courts at all levels and all places;As far as possible in order to explore the true meaning of parties in the contract;Also in order to avoid too many abstract theoretical controversy,In the concrete that should also be combined with the "expression of thespecific terms of the contract,whether the subject matter is counter-intuitive,whether the contract rights and obligations equivalent,whether the performance of the way against trading habits",and should be comprehensive considerations.