CICC Comment on Top Ten Territories Terms of House Consumption

September 21st

China Consumers Association released

Elapse of the Terms of Election Formats Series 5

Invite lawyers of the China Consumers Association Lawyer Group

What is strong to consumers

Buying and selling, leasing, decoration, property

Other related fields

Top ten unfair format clauses to comment

01.

When the seller cannot fulfill its obligations, it is completely exempted from the responsibility of fixing their gold

Typical clauses 签 Before the official pre -sale agreement was signed, if the seller cannot be sold due to the seller's reasons, the seller is not subject to any agreed restrictions, and only needs to refund the deposit instead of adding interest or compensation.

Comments

In accordance with the "Civil Code", when the party receiving the deposit does not fulfill the obligation agreed in the contract, in addition to returning the deposit received from the payment party, it should also compensate the payment party with equal money, that is, double the deposit.

The provisions of this format have completely avoided the legal responsibility that the operator should undertake without performing the contract. It is very unfair to buyers and violates the legal provisions.

02.

When the commodity housing sales contract does not match the content of advertising, the "publicity is considered an invitation to invite" to avoid responsibility

Typical clauses 人 When buyers signed this contract, they have made a comprehensive and detailed understanding after inspection and relevant document procedures on the spot. The seller does not have false, misleading commitments, statements, and buying the property voluntarily. The model houses, propaganda materials, real estate advertisements, etc. that the buyer saw at the scene was invited as an offer, and did not serve as a basis for the seller to deliver the house to the buyer.

Comments

When consumers buy commercial houses in the sales office, sales and publicity materials such as sales manuals, real estate models, model houses such as real estate models, model houses such as real estate will have a significant impact on consumers' purchase decisions. Explanation and promise to commercial housing and its auxiliary facilities attract consumers to sign a contract.

According to the "Civil Code" and "Supreme People's Court on the Explanation of the Application of Laws on the Application of Disputes on the Building and Sales Contract Contracts", the content of commercial advertisements and publicity meets the requirements of the offer, constituting the offer, and the developer has no right to unilaterally stipulate advertisements and publicity in the contract. Data and so on do not constitute the content of the contract. When the advertising and promotional data constituted an offer, even if the contract is not written, the developer should fulfill the relevant obligations.

03.

The seller has the right to interpret the final interpretation, excludes the other party's rights, and exempts his own responsibilities

Typical clause sellers During the sales process, the drawings, materials, and publicity advertisements provided by the buyer, except for special explanations, are for reference for buyers to buy houses. The right to interpret.

Comments

In accordance with the "Civil Code" and "Measures for the Supervision of Contract Violations", the format terms should be fairly determined by the rights and obligations of both parties, and when there is a different understanding of the format terms, it should be explained that the party is not conducive to the provision of the format terms.

If the format clause unreasonably reduces the terms of the format provider to the provider of the provider and exclude or restrict the other party's rights, this clause is invalid.

04.

Expand the scope of the application of possibilities, and to exempt the house exemption

Typical clauses 调 Those who do not assume the liability for breach of contract due to design adjustment and climate change and other reasons that the seller will not be liable for breach of contract.

Comments

According to the "Civil Code" and "Administrative Measures for the Sales of Commercial Houses", this clause belongs to the abuse of force majeure. Activity is an objective situation that cannot be foreseeable, unavoidable, and cannot be overcome. Design adjustments and climate change are not force majeure, but the factors that should be fully considered before construction. If the operator fails to submit the house on schedule due to design reasons, it shall be default and needs to be liable for breach of contract.

05.

After the housing lease period expires, restrict consumers and house owners direct transactions

Typical clauses 租 Within three months after the termination of the lease expires, Party A (lessee) shall not deal with the property owner of the house on their own, otherwise the 200%of the monthly rent of Party B (intermediary) shall be delivered to the monthly rent as compensation.

Comments

Consumers have established a lease contract through the intermediary agency with the owner of the house. The opportunities for concluding contracts provided by the intermediary agency or the media services provided by the contract have been paid in accordance with the contract. The contractual purpose of the intermediary agency has been realized. After the termination of the lease period is terminated, consumers have the right to directly negotiate with the owner of the house to establish a lease contract again. It does not belong to Article 965 of the Civil Code. In the case of establishing a contract, the intermediary agency has no right to restrict it, and does not have the right to request consumers to pay compensation, liquidated damages or compensation for losses.

06.

There is a problem with the decoration construction, and the material fee is passed on to the consumer

Typical clauses During the decoration construction period, it belongs to the projects of Party A (consumer) purchased by Party B (decoration company). If there is a quality problem due to the construction of Party B, Party B is responsible for the labor costs during the warranty period.

Comments

During the decoration process, after quality problems are caused by construction, some or all original decoration materials are often required for reorganization. During demolition, the original decoration materials are partial or all damaged. Consumers' self -purchased materials belong to their own property, and the losses caused by the unqualified construction quality of the operator shall be borne by the operator. This clause alleviates the responsibility that the operator should bear and is an unfair format.

07.

The standards for setting in liquidated damages are too low, and the cost of default for operators is relatively small Typical clauses ➭ The construction party violates the contract for the contract to pay the project, paying the liquidated damages to consumers daily at 20 yuan.

Comments

According to the setting of the "Civil Code" liquidated damages, it should be based on the principle of compensating for actual losses. The amount agreed on the agreed liquidated damages here is relatively low, which is obviously unable to make up for actual losses caused by inability to check in (such as extending the lease period, increasing lease costs, etc.) , Suspected of excluding the right to claim the liability for breach of contract and reduce the liability for compensation for operators.

08.

Pay the prepaid as a deposit or liquidated damage, and the termination of the contract does not refund the contract

Typical clauses 方 Party A (consumer) In addition to force majeure, if the contract is unilaterally terminated, the prepaid payment has been paid, and Party B (operator) will not be refunded; if it causes losses to Party B, Party A will bear all the losses of Party B.

Party A (consumer) If the contract is defaulted, Party A's delivery will be compensated to Party B as a liquidated damage.

Comments

Prepaid is not a deposit on the concept of legal concepts. The provisions of the prepaid payment of prepaid in the contract terms of the contract on the contract terms cannot apply the "deposit penalty". When the operator unilaterally stipulates that consumers to terminate the contract, they will not refund the payment of prepaid or pay the delivery payment as a liquidated damage to the operator, which is an unfair format clause that aggravate consumer responsibilities. In addition, when the contract is liable for liability for breach of contract, the liquidated damages shall not exceed the reasonable amount.

09.

The property company charges the management fee but does not bear the civil liability of the management obligation

Typical clauses 服务 Property service enterprises have only referring to the management of vehicles driving and parking order under this agreement, and do not assume the obligation to keep the vehicle. The damage, loss of vehicles in the property management area, and the stolen property of property management areas have lost property loss. , Or or personal casualties shall bear criminal or civil responsibilities by the responsible party, and property service companies shall not bear responsibility.

Comments

According to the "Property Management Regulations", the property service enterprise collects the parking space fee of the owner, and the legal or agreed reasonable management obligations shall be fulfilled. This clause stipulates that property service companies have no reasonable responsibilities for property loss, loss of property such as vehicles in the property management area, the stolen property of property, or personal casualties, which belongs to the exemption of their own responsibilities and legal obligations.

10.

Outside the property management fee, the owner is required to share public expenses

Typical clauses Property comprehensive service fee does not include public energy consumption costs such as landscape water systems. Water and electricity bills run by landscape water systems are allocated at the actual cost.

Comments

According to the "Property Management Regulations" and "Supreme People's Court's Interpretation of Several Issues of Application of Laws on Property Service Disputes Cases", the property management area should include public facilities and venues in communities such as landscapes. Water and electricity costs such as the pool fountain should be listed in the property management service fee, and the owners should not be shared.

Produced by Chinese Consumer Newspaper New Media Editorial Department

Source: China Consumer News

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