Analysis Of The Nature Of "Guarantee Set By A Sale Contract For Loan"

In recent years,to solve the problem of financing,more and more real estate development enterprises use a new kind of financing way: In addition to the private lending contract,in order to guarantee the realization of the creditor's claims,the debtor and the creditor enter into a housing sale contract in which they agree that if the debtor is unable to repay the principal and interest,the debtor's house will be transferred to the lender to fulfill the housing sale contract,which will be the end of the rights and obligations of both parties.There are different types of cases in practice in accordance with the transaction manner between the parties.In one situation,at the time the parties sign the housing sale contract,the debtor transfer ownership of the house to the lender to guarantee the realization of the creditor's rights.Once the borrower cannot repay the principal and interest on schedule,the house will be owned by the borrower certainly.In the other case,the parties only signed a contract,which provides security for the borrower's credit.Once the borrower cannot repay the loan on time,the lender will require the borrower(the seller)to perform his obligation.This article discusses the second situation above.For this type of case,in judicial practice,due to the different understanding of judges,different judgments were once formed by judicial organs.In academia,scholars also discussed this question to varying degrees,and they gave very different explanations of this proposition.What is the legal relationship between the parties?How to understand the “guarantee” in “guarantee set by a sale contract for loan ”?What is the nature of the sale contract in such cases? How to understand the responseof Article 24 of Legal Interpretation [2015] 18 to the inconsistency in judicial practice?These are some of the questions that this article wants to ponder and clarify.The body of this article is divided into four parts.Its contents are as follows:The first part presents the different views of judges and introduces the response of law to this question.This section describes two cases,analyzes the courts' judgments on the trial,and summarizes the basic characteristics of this type of case and the differences in judicial practice.In order to achieve the unification of the judgements,the article 24 of the Law Interpretation [2015] 18 responded to it.But this provision evades the focus of such cases,and the ambiguity in the expression is obvious.New confusion has been caused when people face such issues.What this part plays in the full text is the role of discovering and proposing problems which enlighten me to think about the problems that appeared in judicial practice.The second part examines the different views that some scholars have put forward in their analysis of this proposition.First of all,many scholars have characterized the housing sale contract which guarantees the private lending as a kind of non-typical guarantee.In this regard,this part starts with the legal structure of transferring guarantee,sorts out the legal relationship of the parties involved,and comes to a conclusion that the “guarantee set by a sale contract for loan” does not meet the legal structure of the transferring guarantee.In addition,by studying the legal characteristics of real right of pledge,it was found that although the sales contract signed by the parties plays a certain role of protection,but it cannot play the role of real right of pledge.Secondly,for some scholars' view based on datio in solutum,this paper insists on the real act in datio in solutum,and points out that there is a deficiency by using the theory of datio in solutum to explain the nature of the housing sale contract in this kind of case.By analyzing the implications of misrepresentation,the third part concludes that the parties are hoping to achieve the sale contract's effect of ensuring the realization of the creditor's rights,which is different from the meaning of misrepresentation.And there is no motive for the parties to resort to misrepresentation.In fact,the parties attached a condition to the sale contract.At the same time,in order to achieve the effect that both parties do not need to pay the other party's price,the parties have reached a pre-contract of offset between the borrower's repayment obligation and the purchaser's payment obligation.If the borrower repays the principal and interest ontime,the housing sale contract does not take effect.But if condition is satisfied,the obligation to transfer the ownership of the house remains after the offset occurs.The fourth part firstly points out the confusion caused by the interpretation of article 24 of [2015]18 from various angles.By referring to other scholars' views and using teleological method of interpretation,it can be assumed that there is a parallel relationship between the two paragraphs in Article 24.It can be considered that when the borrower does not repay principal and interest during the period,it constitutes a double default in both the loan contract and the housing sale contract.The lender may request the debtor to fulfill the obligation of transferring the ownership of the house,and may also choose to request the other party to perform the obligation of repayment.Finally,this part analyzes the interests relation between the contracting parties and the third party in practice.It also analyzes the differences on this relation in different circumstances,especially when there is an advance notice registration under the housing sale contract.