The irrevocable letter of commitment 2 states “In view of Shenglong company and its affiliated companies’ borrowing from your bank, as the construction contractor of the project complex building involved in the case, our company promises as follows: from the date of issuance of this letter of commitment, before all your creditor’s rights are paid off, our company voluntarily waives our priority to be compensated for the price obtained from the above project due to discount or auction construction project based on Article 286 of the contract law.” 。 Huisan company maintains that the above “its affiliated companies” are not clear, so it should make an explanation that is not conducive to the Liedong branch of Industrial Bank, the text provider, that is, the letter is a commitment made for the loan of Shenglong company in 2012 and has nothing to do with the loan of Weisheng company in 2013.
Thirdly, in the archives of Liedong branch of Industrial Bank for handling the mortgage registration procedures for xingyin Sanming (yeyi) Gaodi (2013) 0018 maximum mortgage contract, The letter of commitment issued by huisan company to Shaxian housing management office states that “our company is now undertaking the project involved in the project.
There will always be omissions in life, but don’t forget to “look”!!! ▍ case index (2021) Supreme FA min Shen No.
214, huisan company issued a statement to Sanming Meilie sub branch of Agricultural Bank of China Limited on May 26, 2012, which stated that there was no project debt for the project complex building undertaken by huisan company.
▍ basic case: main reasons for huisan company’s application for retrial: 1 The commitment of huisan company to give up the priority of project funds has damaged the wage interests of construction workers and should be null and void.
▍ the Supreme Court held that: 1 On whether huisan company promises to give up the priority of project funds to Liedong branch of Industrial Bank.
The actual business address of Weisheng company is located in the plot under the name of Shenglong company.
and Sanming Liedong sub branch of Industrial Bank Co., Ltd.
On whether the above commitments of huisan company are effective.
▍ retrial applicant of the parties to the case (defendant of first instance and appellant of second instance): Fujian huisan Construction Development Co., Ltd.
According to the spirit of relevant judicial interpretations, without prejudice to the interests of construction workers, the obligee is not prohibited to give up or restrict the priority of project funds..
2.
214 case, which does not mean that the right or relevant facts do not exist.
0028 and 0031 working capital loan contract, that is, the loan commitment of Weisheng company in 2013.
Secondly, according to civil judgment No.
This is to certify that Lesheng LONGYE sub branch of the company has not given up the priority of the company’s commitment to the third floor project, and that Lesheng LONGYE sub branch of the company has not given up the loan.
The main content is that huisan company voluntarily gives up the priority of compensation because the owner can timely allocate the project funds according to the project progress.
Shenglong company and Weisheng company list each other’s companies in the table of “other enterprises with direct relationship” in the enterprise credit report of the two companies issued by the credit investigation center of the people’s Bank of China.
Therefore, it has no effect on Industrial Bank Liedong branch.
Accordingly, the irrevocable commitment letter 2 takes Shenglong company and Weisheng company as the commitment object, which is in line with common sense and the trading habits of related parties, and huisan company has insufficient basis for this claim.
Subsequently, Weisheng company lent a total of 18 million yuan to Sanming Meilie sub branch of Agricultural Bank of China, and Shenglong company set a mortgage guarantee for the loan with the project involved in the case.
Respondent (plaintiff of first instance and appellee of second instance): Sanming Liedong sub branch of Industrial Bank Co., Ltd.
6948, civil application retrial review civil ruling of Fujian huisan Construction Development Co., Ltd.
Based on the above situation, the judgment of the first and second instance held that it was not improper for huisan company to give up the priority of project funds for the loans guaranteed under xingyin Sanming (yeyi) GAODA (2013) 0018 maximum mortgage contract and xingyin Sanming (yeyi) Liudai (2013) No.
Because the owner can timely allocate the project funds according to the project progress, our company voluntarily waives the priority of compensation”.
The judgment of the first and second instance was wrong.
The relevant commitment of abandoning the priority of project funds in this case was issued for the loan of Shenglong company in 2012, which has nothing to do with the loan of Weisheng company in 2013.
However, based on the facts found in the first and second instance and in combination with other documented evidence, the court noted: first, there is a deep relationship between AXA and Shenglong, such as the contacts left by Shenglong and AXA in xingyin Sanming (yeyi) Gaodi (2013) 0018 maximum mortgage contract, xingyin Sanming (yeyi) Liudai (2013) 0028 working capital loan contract The mailing address is the same.
In addition, Shenglong company did not claim the right or raise a defense on huisan company’s commitment to give up the priority of project funds to Industrial Bank Liedong branch in (2013) sanminchu Zi No.
The priority of project funds is the legal right of the construction contractor, which belongs to the property right with the nature of guarantee.
2.
Even if huisan company has expressed its intention to refuse to give up the priority of project funds in its correspondence with Shenglong company, it also belongs to the negotiation between them, and is inconsistent with “this letter of commitment is an irrevocable letter of commitment, which takes effect once made and has no right to be revoked unilaterally” contained in the irrevocable letter of commitment.
As a construction enterprise, huisan company should know the legal consequences of issuing the letter of commitment and bear corresponding responsibilities.
Huisan company issued the letter of commitment to Shaxian real estate management office on June 3, 2012.
If there was any project debt in the future, huisan company would give up the first right to compensation, and the debt would be used to repay the loan of Weisheng company in the bank in priority.
The court also noted that there was a dispute between the two parties over the signing time and evidentiary force of the above irrevocable letter of commitment 2 and certificate, and Liedong branch of Industrial Bank has made corresponding explanations during the first and second instance, which is not contrary to common sense.
