The Research On Duty To Inform In Sale Of Haunted House

The duty to inform is based on the asymmetry of information between the contracting parties in reality,and is also based on the protection of reasonable trust and meaning determination of the party who is vulnerable in information.Meanwhile,although the duty to inform can minimize transaction costs and improve the efficiency thereof,the duty to inform shall be restricted for specific purposes,such as improving the overall welfare of society in order to encourage parties to develop and acquire productive information that can create social wealth,which is the economic basis of the duty to inform.For protecting autonomy of the will of vulnerable party in the process of contracting,the party who dominates information shall bear the duty to inform of important information,and such important information shall be defined as information that may rise serious prejudice to the parties' expectations and the realization of the purpose of the contract,and further cause a substantial impact on the decision of the parties to enter into the contract.However,nevertheless foregoing definition,the party who dominates information shall not be liable for informing important information which are unexpectable in order to sustain balance between interests of both parties to the agreement and avoid deviating the purpose of facilitating transaction.The law should only protect the reasonable trust of thecontracting parties,and in order to achieve balance between interests of parties,the party who dominates the information in the contracting process does not have the duty to inform important information unpredictable.The expectation of the specific information shall depend on two aspects,as following: first,the possibility that parties obtain specific information on their own,which is mainly manifested through the cost of obtaining specific information,and second,whether there are any elements/things which can enhance special trust between the parties,which is mainly manifested in whether a party to contract has professional expertise.In the haunted house sale,first of all,it is unnecessary to restrict the duty to inform of seller since the information about haunted house is not productive information.Secondly,information of the haunted house will obviously cause serious damages to the buyer's expectation of purchasing a normal house and hinder the realization of the purpose of buyer,and further having a substantial impact on the buyer's decision to enter into the purchase contract.Whereas foregoing analysis,the author believe that the information of haunted house shall be identified as important information.Finally,it is usually hard for buyer to obtain the information about haunted house,or buyer has to spend high cost for acquiring those information,since the related information are usually under the control of seller.In contrast,seller can dominate those information nearly without any expense.Especially,when the real estate intermediary is involved in the purchasing of house,the special trust relationship between the buyer and seller is strengthened.Therefore,author think that information therein shall be regarded as being expectable.With the comprehensive consideration,in the foregoing circumstance,the author believe that seller shall bear the duty to inform,and disclose the information of haunted house to buyer promptly in the process of contracting,or seller will otherwise constitute the breach of the duty to inform.If the seller does not disclose information about haunted house in the process of contracting,and breaches the duty to inform,the buyer can cite Article 42 of the Contract Law to claim damages for the loss of the reliance interests,including the costof entering into contract,the opportunity to enter into a contract with a third party.Under circumstance that the sale contract has entered into force,the buyer may cite Paragraph 2 of Article 54 which is about fraud or Item 1 of Paragraph 1 of Article 54 which is about material misunderstand to withdraw the contract,and in addition,may claim the return of money used to purchase house and damages of the loss of reliance benefits in accordance with Article 58 of the Contract Law.In this way,the stipulation of fraud and material misunderstanding will complement each other,providing the buyer with relief to annihilating validity of the contract,so that the buyer can be free from the unfavorable situation that the sale contract about haunted house has already entered into effect.In addition,whereas unnatural death which happened in house usually seriously derogates value of the house,and also cause serious impact on the balance of payment and treatment payment between the buyer and the seller,the unnatural death event can be explained as defect of the house concerned.If the seller's action of delivering haunted house constitutes delivery with defect,seller shall assume guarantee liability about defect thereof.At this time,there will be a coopetition between guarantee liability about defect and contracting fault liability.Whereas the duty to inform is intended to protect the buyer's meaning determination,and the purpose of the guarantee liability about defect is to maintain the balance between the payments,the author think that those two should be coexisting,and the buyer has the right to choose according to the specific circumstances.