The Research On Legal Attribute And Effect Of Guarantee Created By House Sale Contract

To create guarantee for private financing by concluding house sale contract is an emerging form of guarantee appearing in recent years.The article focuses on the issue of analyzing problems of judicial handling of cases in which guarantee created by house sale contract,applying basic civil law theories to prove legal attribute and effect of this kind of guarantee,and finally building a integral theory system of guarantee created by house sale contract to guide judicial practice.Applying pure accord of datio in solutum,after-transferring guarantee or generalized mortgage to demonstrate legal attribute of guarantee created by house sale contract results from the confusion of datio in solutum,transferring guarantee and mortgage.Parties providing guarantee by concluding house sale contract constitutes Leistung sicherheitshaller,which means act performance other than the original debt due to the purpose of guarantee.And the accord about guarantee is consensual contract.The house sale contract,which proved to be false declaration of will,shall be invalid.But the accord about transferring possession of the house when the debtor defaults on its debt obligations shall be the true declaration of will,which intend to create a secured interest over the debt.In consideration of the legislative intention about prohibition of fluidity clause and legislation model in other regions that have claimed the recognition of fluidity clause already,although the ownership transference claimed in the accord would be identified as fluidity clause,it is necessary to make a limit understanding about prohibition of fluidity clause stipulated by law and admitting the effect of fluidity clause exceptionally.Because the parties concluded the accord about guarantee without registration of ownership,this kind of guarantee can't fight against a third party or create any priority over the house in satisfaction of the creditor' claim.However,the article also fully proves that the aforementioned problem will be resolved by taking advantage of advance notice registration.