Research On The “jumping Order” In Intermediary Contract

In 2011,the Supreme People's Court issued the No.1 Guiding Case,“The Dispute Case in Intermediary Contract of Shanghai Zhongyuan Property Consultant Co.,Ltd.v.Tao Dehua”,which establishes the basic rules of judgment for the “jump order” in judicial practice.However,after the issuance of the Guiding Case,the judicial decisions of disputes over intermediary contracts caused by the “jump order” have not been fully unified.Therefore,this thesis intends to take the housing sale intermediary contract as an example to discuss the the “jump order” of intermediary contract.Part One briefly introduces the basic situation of the selected cases in this thesis.The No.1 Guiding Case holds that the prohibition of the “jump order” is valid,and clarifies the circumstances under which the “jump order”does not constitute a breach of contract.In the case of Huang Guochun,the judge made a judgment that the “jump order” constituted a breach of contract,but whether the breach of the “exclusive commission” constituted a breach of contract and whether the interval between different brokers before and after the “jump order” had any impact on whether it constituted a breach of contract need to be further explored.The case of Tian Libo involves the intermediary remuneration when the principal's “jump order”does not constitute a breach of contract.The case further holds that although the principal does not constitute a breach of contract,the intermediary has paid a certain amount of labor based on the valid contract and should be paid for the necessary fees.Part Two is about the “jump order” act and the breach of contract in “jump order”.The “jump order” act emphasizes the act itself,which is only a judgment of facts and does not involve the determination of legal consequences,while the breach of contract in “jump order” is a consideration of legal value.Therefore,based on the premise that the two should be distinguished,the elements constituting the “jump order” and the elements constituting the breach of contract in “jump order” should also be distinguished.Part Three is the analysis of the effect of the clause of prohibition of “jump order”.The validity of the clause of prohibition of “jump order” should be judged according to the relevant provisions on the format clause in China: where the provider of the format clause “excludes the principal's main rights and aggravates the principal's liability”,the format clause shall be invalid;where the provider of the format clause fails to fulfill the obligation of prompting and explaining,the format clause shall be invalid and revocable.It is not the direct basis for judging the validity of format clauses that intermediaries pay a lot of labor in collecting and collating transaction information and providing media services for contracting parties in the performance of contracts.Part Four analyzes whether different “jump order” acts constitute breach of contract.In the case of exclusive and non-exclusive commission,the judgment of breach of contract is different.In exclusive commission,it is forbidden for the principal to choose another broker to trade,otherwise the violation of the clause prohibition of “jump order” constitutes a breach of contract.In non-exclusive commission,if the transaction information is released through multiple intermediary platforms,one party can obtain information from other trading platforms and conduct transactions with the other party,which does not violate the clause of prohibition of“jump order”;if in fact the transaction information is provided only through a household intermediary,the “jump order” actor must prove that he is justified and fit from other intermediaries.Access to trading information through reasonable channels,if not proven,can be regarded as a violation of the clause of prohibition of “jump order”.Part Five is about the legal liability of the principal after the “jump order”.Based on the premise that the “jump order” does not necessarily lead to breach of contract in “jump order”,and the legal liability of the principal after the “jump order” should also be distinguished.If the principal's “jump order” does not constitute a breach of contract,the broker may request the principal to pay the necessary expenses for the intermediary activities in accordance with the relevant provisions of the Contract Law.If the principal's “jump order” constitutes breach of contract,the broker may choose to request the principal to assume the liability for breach of contract or pay the brokerage remuneration.