Legal gas station
Introduction
Multiple trading refers to the act of selling the subject matter to a third party after the seller and the buyer have entered into a sales contract. There are two conditions required for the composition of multiple transactions: first, the subject matter of the transaction is a specific thing, and there is no problem of multiple transactions in the type of goods; Second, when the seller enters into a contract of sale with each buyer, the seller is the owner of the subject matter.
Regardless of whether it is a multiple sale and purchase contract of movable property or a multiple sale and purchase contract of immovable property, each sale contract with the same specific thing as the subject matter is not invalid on the basis of the existence of the contract formed earlier. On this basis, if there is evidence to prove that there are invalid reasons such as malicious collusion in a specific sales contract, the sales contract shall be invalid. As long as the contract does not violate Article 143 of the Civil Code of the People's Republic of China, "a civil juristic act that meets the following conditions is valid: the actor has the corresponding capacity for civil conduct; The meaning means that it is true; does not violate the mandatory provisions of laws and administrative regulations, and does not violate public order and good customs", and there is no malicious collusion as provided for in Article 154 of the Law, and both contracts are valid contracts.
Multiple buying and selling can be divided into the following types:
1. Multiple buying and selling of movable property
1.For ordinary movable property
Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Sales Contracts (hereinafter referred to as the Interpretation) Article 6, "Where a seller enters into multiple sales contracts for the same ordinary movable property, and the buyer requests the actual performance of the contract under the condition that the sales contracts are all valid, it shall be handled separately in accordance with the following circumstances: (1) if the buyer who has received the delivery in advance requests confirmation that the ownership has been transferred, the people's court shall support it; (2) Where the buyer who has not received the delivery and has paid the price in advance requests the seller to perform contractual obligations such as delivery of the subject matter, the people's court shall support it; (3) Where neither of them has received the delivery nor paid the price, and the buyer who has established a prior contract in accordance with law requests the seller to perform contractual obligations such as delivery of the subject matter, the people's court shall support it. According to the above provisions, for ordinary movable property, the priority of the buyer's claim for delivery of the goods shall be determined in accordance with the three methods of "receipt of delivery-payment-establishment".
2.For special movable property
Article 7 of the Interpretation stipulates that: "If a seller enters into multiple sales contracts for the same special movable property such as a ship, aircraft, motor vehicle, etc., and the buyer requests the actual performance of the contract under the condition that all the sales contracts are valid, it shall be handled in accordance with the following circumstances:
1) Where the buyer who received the delivery in advance requests the seller to perform contractual obligations such as going through the formalities for registration of the transfer of ownership, the people's court shall support it;
2) Where the buyer who has not received the delivery and has gone through the formalities for the registration of the transfer of ownership in advance requests the seller to perform contractual obligations such as delivery of the subject matter, the people's court shall support it; (3) Where neither of them has received the delivery nor gone through the formalities for the registration of the transfer of ownership, and the buyer who has established a prior contract in accordance with law requests the seller to perform contractual obligations such as delivering the subject matter and going through the formalities for the registration of the transfer of ownership, the people's court shall support it; (4) Where the seller delivers the subject matter to one of the buyers, and then registers the transfer of ownership for the other buyers, and the buyer who has already received the delivery requests that the ownership of the subject matter be registered in its own name, the people's court shall support it. ”
According to the above-mentioned provisions, for multiple transactions of special movable property, the buyer's right to claim for delivery of goods shall be determined in accordance with the principle of "receipt and delivery, registration, and establishment". In addition, the article provides that, if delivery has been received, the buyer has the right to request the seller to register the transfer of ownership for him/her, even if the special movable property has been registered in the name of another person.
2. Multiple purchases and acquisitions of immovable property
The most common problem is "one house for two sales". According to the first paragraph of Article 209 of the Civil Code of the People's Republic of China, "the creation, alteration, transfer and extinction of immovable property rights shall take effect upon registration in accordance with law; Without registration, it shall not take effect, unless otherwise provided by law. "China adopts the mode of change of real estate rights based on the registration effect, and the ownership of immovable property is determined by registration.
Under normal circumstances, the buyer who has priority in the registration of immovable property obtains the ownership of the house, but refers to the provisions of the Minutes of the Eighth National Conference on Civil and Commercial Trial of Courts: "On the performance of the contract for the sale of a house: When hearing a dispute case over the sale of a house, if several contracts are valid and the buyer requires the performance of the contract, the priority of rights protection shall generally be determined in the order in which the change of ownership of the house has been registered, the lawful possession of the house, the performance of the contract, and the order in which the sales contract is established." However, the rights of a buyer registered in bad faith cannot have priority over a buyer who has lawfully taken possession of the house. The time of establishment of the sales contract shall be determined by taking into account the time of filing with the competent authority, the time of signing the contract and other evidence. "If it can be proved that the seller colluded with a third party in bad faith, the buyer may request confirmation that the contract for the sale of the house between the seller and the third party is invalid. If the seller deceives multiple buyers into signing a contract with them for the purpose of illegal possession, and then flees with the purchase money, it will constitute the crime of fraud.
So how should home buyers protect themselves? There are two effective ways to avoid being scammed. After the buyer and seller have signed a housing sales contract, they can go to the relevant departments for the record, and the online signature information includes the information of the real estate development enterprise, as well as the pre-sale license number or real estate license number of the commercial house. The online signature number formed by the filing is published online and available for inquiry by the relevant parties, so as to prevent "one house from being sold twice" or even "one house being sold for multiple purposes". The other is to handle the pre-sale contract of commercial housing for the record. Article 10 of the Administrative Measures for the Pre-sale of Urban Commercial Housing stipulates that: "For the pre-sale of commercial housing, the developer shall sign a contract for the pre-sale of commercial housing with the offtaker. The developer shall, within 30 days from the date of signing, go through the registration and filing procedures for the pre-sale contract of commercial housing with the real estate management department and the municipal and county people's land management department. "The registration and filing procedures of the pre-sale contract for the pre-sold commercial housing is also one of the effective ways to prevent the "two sales of one house".