Confirmation Of The Validity Of The Secured House Purchase And Sale Contract

In the private lending,the contract for the purchase of housing contracts for the security of the loan contract,the situation often occurs,the sale of such a contract seller is generally a borrower or a third person,the buyer is generally a loan contract lender.Because this kind of house sale contract has the nature which guarantees for the loan contract,therefore this article will call this kind of house sale and purchase contract as the Guaranty House sale contract.There are great differences in the validity of the guarantee contract of the sale of the house,in order to protect the interests of both parties in the loan contract and unify the judicial decision,it is necessary to study the effect of the guarantee contract.Because the real purpose of the contract between the parties is to guarantee the loan contract by "the transfer of house ownership",so its essence is not different from the alienation guarantee.In the contract of guarantee property sale,"Transfer the ownership of House,compensation for debt" agreement and the liquid clause is also consistent in nature,and the liquid provisions will not affect the overall effectiveness of the guarantee contract,the guarantee of the sale of housing contract will not be invalid because of the existence of such an agreement,just need to be in the loan contract lenders exercise security rights,Add a liquidation link.Because the contract of Guaranty house sale belongs to one kind of atypical guarantee,it admits its validity is contrary to our country's property right legalism,so strict real right legalism becomes the biggest obstacle to admit the validity of guarantee contract of house sale.It is undeniable that the strict law of real right has played its normative and guarantee role to a great extent,but on the other hand,because of its too rigid to the real right,many new security rights cannot be recognized,which hinders the operation of the market economy.Therefore,under the background of enacting the Civil Code,we should overcome the rigid law of real right by stipulating the legal easement of the property right in the "Real Right series".As the legislation is always a long process,in the Civil Code of the "Real Right series" does not provide for the relaxation of the legal doctrine of real rights,the guarantee of the sale of the house contract should still be strict in the framework of the real right to deal with,but in the process should be full use of the conversion theory First of all,the guarantee property sale contract is converted into the general guarantee of the house value by the lender of the house selling the loan contract,and then the validity of the guarantee contract is determined from the general guarantee angle.Of course,from this angle,it is found that there are some restrictions on the validity of the contract,that is,only when the house seller is a third person outside the loan contract,so it is necessary to explain the "litigant" in 24th of the provisions of the Supreme People's Court on the trial of some issues concerning the application of The party in the interpretation includes a third person outside the loan contract.