【线上云德】疫情期间律师说（四十七）|商品房认购协议如何定性？

近年来，随着我国房地产市场的日益繁盛，尤其是随着房价在短期快速增长的情况下，商品房买卖中出现大量合同纠纷涌入法院。

In recent years, with the increasingly prosperous real estate market in China, especially with the rapid growth of the housing price in a short period of time, a large number of contract disputes have flooded the court in the commercial housing sales.

通过中国裁判文书网查询显示，2019年至今，全国涉及商品房买卖合同纠纷这一案由的案件共计17743件；聚焦陕西省，涉及商品房买卖合同纠纷案由的案件就有800件。而对于因商品房预售合同而产生的法律纠纷，2019年至今，全国涉及案件共计72279件，陕西省包含1583件。其中还不包含调解结案的，该类案件普遍存在买受人在与开发商签订合同时对于预约合同及其销售广告的认识不清而造成纠纷的发生，那么商品房认购协议如何定性？

According to an inquiry on the China judgment document network, a total of 17,743 cases involving contract disputes over commercial housing have been filed nationwide since 2019. Focusing on shaanxi province, there are 800 cases involving commercial housing contract disputes. As for legal disputes arising from commercial housing pre-sale contracts, 72,279 cases have been involved nationwide since 2019, including 1,583 cases in shaanxi province. Among them also does not contain mediation to settle a case, this kind of case generally exists when the buyer signs a contract with the developer to the appointment of the contract and its sales advertising understanding is not clear and cause the occurrence of the dispute, so how to determine the commercial housing subscription agreement?

商品房认购协议是指买卖合同双方当事人在签订商品房预售合同或商品房现房买卖合同之前所签订的文书,是对双方交易房屋有关事宜的初步确认。那么预约合同应该如何定性？预约合同是当事人双方为将来订立正式合同就相关事宜达成的书面协议,其最显著的特征是:它约定的是当事人双方为将来订立正式合同应履行的继续磋商的义务。预约合同是独立的合同,单独发生法律效力,一经签订立即发生效力,无须等到签订本约的条件成立时才生效。

Commodity house subscribe agreement is to point to the document that both parties of contract of sale contract are signed before signing commodity house presale contract or commodity house present house buy and sell contract, it is pair of sides trades the preliminary confirmation that building concerns a matter. Then how to define the appointment contract? An appointment contract is a written agreement reached by the parties to conclude a formal contract for the future. The most significant feature of the agreement is that the parties agree to continue to negotiate for the future formal contract. An appointment contract is an independent contract with legal effect. It shall take effect once it is signed and shall not take effect until the conditions for signing this contract are established.

《买卖合同解释》第二条对预约作出了明确规定: “当事人签订认购书、订购书、预订书、意向书、备忘录等预约合同,约定在将来一定期限内订立买卖合同,一方不履行订立买卖合同的义务,对方请求其承担预约合同违约责任或者要求解除预约合同并主张损害赔偿的,人民法院应予支持。”实践中预约合同包括认购书、订购书、预订书、意向书、备忘录、允诺书、购买不动产的定金收据、原则协议、协议要点、谈判纪要等。

In the article 2 sales contract to make an appointment made specific provision: "the parties signed subscription book, order books, book, letter of intent and memorandum appointment contract, agreed to enter into a sales contract in the future a certain period of time, the obligation of one party fails to perform the buying and selling contract, the other party requests the undertake responsibility of breach of contract or the appointment contract request the termination of the appointment contract and claims for damages, the people's court shall support." In practice, the reservation contract includes subscription letter, order book, reservation book, letter of intent, memorandum of understanding, promise book, deposit receipt of real estate purchase, agreement in principle, agreement points, minutes of negotiation, etc.

在签订预约合同以后需要履行哪些法律义务呢？根据最高人民法院发布的《买卖合同解释》之规定，在预约效力期间,双方当事人主要有以下义务:

(1)实现交易义务，首先我们应当认定该预约合同为有拘束力的合同，在条件成熟的情况下,应当通过协商将已签不确定的条款变为确定条款，结合预约中的已决条款,促使本约成立,实现交易义务的实际全面履行；

(2)当事人应当遵循诚实信用原则,尽量履行协商和谈判义务。在签订预约合同后,当事人应当按照预约所确定的原则,履行填充确定条款和明确不确定条款的义务,最终订立本约，使预约合同确立的核心条款得以履行。

What are the legal obligations that need to be fulfilled after signing an appointment contract? According to the "interpretation of sales contract" issued by the supreme people's court, during the validity of the appointment, the parties mainly have the following obligations:

1. In order to realize the transaction obligation, we should firstly identify the reservation contract as a binding contract. When conditions are ripe, we should change the signed and uncertain terms into definite terms through negotiation, and combine with the settled terms in the reservation to establish this contract and realize the actual and comprehensive performance of the transaction obligation.

2. The parties shall abide by the principle of good faith and try their best to perform the obligations of consultation and negotiation. After signing the reservation contract, the parties shall, in accordance with the principles determined by the reservation, perform the obligation of filling in the determination clause and clarifying the uncertainty clause, and finally conclude this contract to enable the core clauses established by the reservation contract to be fulfilled.