The second view is that the mortgage agreement is a promissory contract.
Therefore, the mortgage agreement is a promissory contract and does not take the transfer or delivery of the house as the effective condition.
After signing the house sales contract with the construction party or the buyer designated by the construction party as agreed, the construction party has the obligation to deliver the house to the buyer, and the creditor’s right of the corresponding construction project price agreed by both parties shall be eliminated.
The mortgage agreement can be established only after the parties reach the mortgage agreement and both parties have gone through the property right transfer procedures And effective.
On August 6, 2015, company a and company B signed the termination agreement, which agreed to terminate the contract through negotiation.
Second instance: first, revoke item 6 of the civil judgment of first instance; 2、 Maintain items 2 and 3 of the judgment of first instance; 3、 Change the first paragraph of the judgment of first instance: Company A shall pay company B the project payment of 99776857.16 yuan and interest within 15 days from the effective date of this judgment (based on 99776857.16, calculated at an annual interest rate of 24% from August 20, 2015 to the date of actual payment of the project payment); IV.
change item 4 of the civil judgment of first instance: Company A shall pay interest of RMB 19149900 offset by 22 shops of company B within 15 days from the effective date of this judgment (based on 19149900 yuan, calculated at the annual interest rate of 24% from August 20, 2015 to July 29, 2016); V.
There is no provision in China that the mortgage agreement is a practical contract.
During the performance of the contract, both parties terminated the performance of the above contract on August 6, 2015 through negotiation, and agreed on the payment of project funds, house arrival, loss compensation and other related matters after the termination of the contract.
The expression of intention of both parties is true, does not violate the mandatory provisions of laws and administrative regulations, and is legal and effective..
Company a and company B have reached an agreement on the project price of 17 shops involved in the case.
The second view is correct.
After the construction party signs the house sales contract with the construction party or its designated buyer according to the agreement, the creditor’s rights of the construction party on the corresponding project price to the construction party shall be transformed into the creditor’s rights of the construction party requesting the delivery of the house and the transfer of the ownership of the house, and the creditor’s rights of the project price agreed by both parties shall be eliminated, The construction party has the obligation to deliver the top house to the construction party or the designated buyer.
The first view is that the mortgage agreement should be determined as a practical contract by referring to the relevant theories of the constituent elements and legal effects of the repayment of property.
The construction party claims that the house property right transfer procedures have not been handled Those who claim that the mortgage agreement has no legal effect and still request the construction party to pay the mortgaged project price shall not be supported.
From July 28 to August 19, 2016, company B issued 22 copies of confirmation of housing offset by project funds to company a, stating that company B entrusted company a to sign the sales contract of 22 sets of shops with Gao and others, and confirmed that the unit price, area and total price of each set of shops and the above house funds were deducted from the project funds of company B.
[basic case] company B sued the court and said that on March 30 and October 30, 2013, company B and company a signed the supplementary agreement on the construction project of Huainan Wanguo Plaza Project (hereinafter referred to as the supplementary agreement) and the construction project construction contract, which agreed that company a would develop and construct the “3 and 4 commercial and residential buildings of phase I of Wanguo Plaza” Contract out to company B for construction.
Once the agreement between the two parties is formed, the mortgage agreement will be established and take effect.
In the dispute over the construction contract of construction project, the agreement on paying off debts with houses does not take the transfer or delivery of houses as the effective condition — the dispute over the construction contract of construction project between the appellant a company and the appellee B company [gist of judgment] the house debt repayment agreement is a promissory contract and does not take the transfer or delivery of the house as the effective condition.
After the court’s review, on March 30 and October 30, 2013, company a and company B successively signed the supplementary agreement and construction contract, which agreed that company B should undertake the construction of “3 and 4 commercial and residential buildings in phase I of Wanguo Plaza” developed by company a at the intersection of Renmin Road and Guoqing Road, Tianjiaan District, Huainan City.
Unless otherwise specified by law, all contracts are obligatory contracts.
After signing the contract, company B carried out the construction according to the contract.
The total price of the 22 shops is 19.1499 million yuan.
For practical contracts and obligatory contracts, the basic position of China’s contract law is to take obligatory contracts as the principle and practical contracts as the exception.
reject other litigation claims of company B.
change the fifth item of the civil judgment of first instance, that is, company B has the priority to be compensated for the project discount or auction price within the scope of 99776857.16 yuan owed by company a; VI.
However, company a fails to pay the project fund, loss compensation and corresponding interest as agreed in the termination agreement signed by both parties.
In the construction contract disputes of the construction project, after the house for debt agreement is signed, the agreement between the construction party and the construction party has been formed, and the house for debt agreement has been established and takes effect.
[evaluation and analysis] there are different views on whether the mortgage agreement is a contractual contract or a practical contract.
In this case, company a has signed the confirmation of offset of project funds and commercial housing sales contract with company B and the buyer designated by company B for 17 shops involved in the case, and issued the receipt of purchase funds to the designated buyer.
After that, company a signed the commercial housing sales contract with Gao, the buyer designated by company B, and issued to the buyer the purchase price of 113319646.16 yuan and the priority to be compensated for the project discount or auction price within the interest range; 6、 Reject other claims of company B.
