| In judicial practice,there are a large number of cases in which the developer assumes the guarantee responsibility due to the buyer’s overdue repayment,and the developer requests to terminate the pre-sale contract of commercial housing,which can be generally divided into two situations: one is that the conditions of termination are agreed in the contract,and the developer requests to terminate the pre-sale contract on the ground of the achievement of the conditions of termination;the other is that there is no agreement in the contract that the overdue repayment can terminate the contract,and the developer can terminate the pre-sale contract In view of the above two situations,there are quite different cases and opinions in the judicial practice and theoretical circles,and the relevant laws and regulations and judicial interpretation have no clear provisions on the situation of the buyer’s confession,which leads to the judicial chaos of different judgments in the same case.Through the collection and collation of relevant cases,it is found that the court mainly has differences in four aspects: first,what is the relationship between the pre-sale contract and the secured loan contract,and whether it can break through the relativity of the contract;second,whether the termination clause is effective,and whether the developer needs to fully bear the guarantee responsibility to exercise the termination right;third,in the absence of agreement Whether the buyer’s overdue repayment in the secured loan contract can lead to the failure of the developer’s commercial housing pre-sale contract;fourth,whether the intervention factors will affect the exercise of the developer’s right to rescind.The intervention factors refer to the situation that the buyer’s overdue repayment,the house involved in the case is pre-sealed or the developer’s default is prior.Through the analysis of the above problems,in the case of the buyer’s overdue repayment of the loan,the developer can exercise the right of rescission if it meets the conditions of rescission or statutory rescission.We can know that the commercial housing pre-sale contract and the secured loan contract are both independent and closely related,which is the premise that the buyer’s overdue repayment behavior can affect the continuous performance of the commercial housing pre-sale contract,and also the positive basis for breaking through the relativity of the contract.In terms of the determination of the termination of the agreement,the termination of the agreement does not increase the burden of the buyer,so it is effective.However,once the buyer cuts off the supply,the developer can exercise the right to terminate the agreement,which is not conducive to the stability and sustainable development of the real estate market.In the determination of legal rescission,the overdue repayment of the buyer can lead to the failure of the overall contract purpose of the developer,so it is reasonable to give the developer the legal rescission right.In terms of the influence of intervention factors on the right to rescind,the house involved in the case is pre-sealed up in another case does not affect the exercise of the right to rescind,but the developer’s breach of contract will affect the way of exercising the right to rescind.It can not be rescinded by notice,but must be rescinded by litigation.In order to properly deal with such disputes,this paper puts forward some suggestions on the developer’s right to terminate the contract after the buyer’s interruption of supply.First,it is clearly stipulated that the pre-sale contract and the secured loan contract constitute a joint contract.Second,moderately limit the developer’s right to rescind the agreement.Third,under certain conditions,the court should determine whether the developer’s contract purpose has been achieved.Fourth,unifying the judgment standard of the court by issuing guidance cases,making it clear that pre seizure does not affect the developer’s right to rescind,but the developer’s breach of contract first affects the way of exercising the right to rescind. |
