Research On The Nature And Validity Of "Guarantee-type Housing Sale Contract"

In recent years,such a type of case often appears in judicial practice: two parties signed a loan contract,and at the same time,in order to guarantee the contract,they signed a housing sales contract at the same time.In the sale and purchase contract,they reached the agreement that if the loan contract can't be fulfilled at last,they should perform the housing sale contracts to cover the debt.Such types of case not only have great difficulty in determining the facts,but also have many disputes about its nature and validity.That is why different conclusions are reached in the same kinds of case.Therefore,the collation of the case and the study of the point of view,the author attempts to draw my own point of view by the analysis of the cases and the study of the related theory.The first part is the current situation of the judicial practices of the housing sale contracts,including the judicial practices and the law status.This section is mainly based on two typical cases and the analysis of other representative cases.Although there are more or less differences in the details in these cases,the biggest common point is that the rights and obligations between the two parties are the same.Therefore,they can be summarized into the same type of cases to study on.After reaching this conclusion,the author summarizes the judgment result in different cases and finds the different conclusions: some considers the contract as guaranties;some considers thecontracts as Datio in solutum;some considers the contract as a valid contract.At the same time,Article 24 of <the Judicial Interpretation about Private Lending > sets out the solution of this type of cases,but still exist different opinions about this article.Hence,both the judicial practice and the judicial legislation exist dispute.The reason why courts have different opinions on the housing sale contract is mainly attributed to the fact that they have disputes on the nature and validity of these cases.The second part is the study on the nature of the housing sale contract.First,the external contract was invalid because of the simulation,the concealment about"delivery of housing,to offset the debt" is the real part we should research on.Through the collection of different opinions aspects,the different theories of the nature of the concelament are as follows: “mortgage”,“alienation guarantee”,"postalienation guarantee”,“reservation of Datio in solutum”,etc.Through the comparison and analysis of the contracts,the author comes up with the conclusion that the contract is not a guarantee,nor is it reservation of Datio in solutum.It is a kind of novation of obligation and this novation is conditional.In the housing sale contract,in the view of the author,the nature of such an agreement belongs to the novation of obligation.The obligation to repay the loan in the loan contract will be transformed into the obligation to deliver the house when the loan can't be repaid at the expiration date.At this time,the parties no longer have the right to choose and fulfill the obligation to repay the loan and can only fulfill the obligation to deliver the house.The third part is about the confirmation about the validity of the novation of obligation.After confirming the nature of contract,the validity of the novation should be affirmed.In this part,there is a superficial similarity between the contract and the fluidity contract.Through the investigation of the legal basis of the fluidity contract,the author finds that the housing sale contracts actually reach the same result as the fluidity clause,they will get a large imbalance between the parties and can therefore be found invalid.Hence,this kind of novation of obligation is invalid.