Study Of Developer's Right Of Rescission After The House Pre-sealing Up Due To Buyer's Reason

IT is the main way for consumers to purchase property through the way of mortgage.In practice,it is common that the pre-sale contract filing being sealed up caused by the reasons of other debts,resulting in the commodity house involved can not be registered for mortgage,as well as the purchaser can not provide a new loan collateral,and do not return the loan principal and interest of the bank according to the contract.The bank therefore requires the developer to immediately assume the liability for repaying the repayment obligation of the principal and interest of the loan.Based upon the above-mentioned facts,the developer sues for the cancellation of the commodity house purchase and sale contract.There are two different opinions of the similar lawsuit cases on whether a developer can claim for the cancellation of a commodity house purchase and sale contract,and courts in different areas have two different outcomes of judgments for similar cases.One opinion and judgement is that due to the breach of contractual obligations of the house purchaser,the developer could not achieve the purpose of signing the " commodity house purchase and sale contract" and therefore the judgement of the court cancels the commodity house purchase and sale contract signed between the developer and the purchaser.Another opinion and judgement is that the purchaser has paid the entire purchase price through the down payment and the mortgage,therefore and the purchase and sale transaction between the developer and the purchaser has been completed.There is no breach of contract in the commodity house purchase and sale contract for the purchaser,especially in the case of a third party who has sealed up the transaction house of record and filing.It would most likely infringe upon the legitimate rights and interests of the creditors if the house involved will be recovered to the developer.Therefore,the commodity house purchase and sale contract should not be cancelled.The right for compensation could be enforced if the developer assumes the guarantee responsibility in the guarantee contract.The judicial practice requires the guidance of legal theory and ultimately serve the social production and life,it is very important to clarify the legal nature of the buyer's reasons for unable to apply for mortgage registration,and explore whether the developerhave the statutory right of rescission,therefore the judgment scale can be unified with the aim of achievement the same judgments due to the same cases,as well as the full exertion of legal function of guidance,evaluation,and forecasting.It will enable participants in real estate market to forecast the outcome of behaviours promoting the security and stability of transactions and market prosperity.This dissertation starts from the relationship between the "Commodity House Purchase and Sale Contract" and the "Loan Guarantee Contract",the legal nature of the mortgage registration,the legal nature of the pre-sealing up,the purpose of the contract,the contractual incidental obligations,the trading habits,etc.,combining with relevant similar cases of retrieval,analyses and discusses the developer's right of rescission with putting forward the author's preferred views with the purpose of providing reference for the unified ruling in judicial practice.