預約之研究-以不動產斡旋金交易為例

Abstract

摘要 本論文為我國預約制度之研究，以搜集我國實務上判決及學術文獻作為研究方法，分析歸納我國現今預約制度問題。再介紹英美法系對於預約見解，以比較法為基礎，嘗試對我國預約制度提出建議。而在我國不動產交易中，買賣雙方及仲介業者間盛行之不動產斡旋金契約，因該契約條款之擬定，造成買賣雙方間，究竟成立「預約」或「本約」，在法院具體個案中迭生爭議。本文擬以上開研究結論，作為檢視該契約之基礎，並研究實際個案中，不動產斡旋金契約之爭議問題，提出本文之見解，望能忠實反應買賣雙方之真意，並兼顧買方、賣方及仲介業三方之利益，減少不動產斡旋金契約之法律風險，達到促進不動產斡旋金契約之目的。 預約之根本爭議在於預約之效力為何，我國實務及傳統見解，均認為預約具有請求他方締結本約之效力，然此見解造成預約及本約之區別實益降低，導致違反預約之損害賠償範圍包含履行利益。然參酌英美法制，我國預約明顯缺少美國法上之「繼續協商預約」類型之預約，且為使預約與本約具有區別實益，預約之效力應採「持續磋商說」為當，預約雙方應負擔「善意協商義務」，損害賠償範圍應限於信賴利益。而如何判斷契約是否為「預約」，應區分「協商階段」及「預約」，「預約」及「本約」做討論。「協商階段」與「預約」之區別，參酌美國法之見解，可參考「是否簽立書面」、「是否引起他方信賴」、「是否已對契約部分要素做出約定」三指標做出判斷；「預約」及「本約」之區別，因現今交易複雜程度已非古典契約所可比擬，是應適當擴張契約必要之點，而非固守傳統契約必要之點之標準。而具體之操作，仍須研析具體個別契約之特色，始能做出適切之判斷。 本文即以不動產斡旋金交易做為研究客體。依上開預約判斷之三指標作檢視，不動產斡旋金交易之買賣雙方應已成跨過協商階段，又現代不動產交易日趨複雜，僅對於價金及標的意思表示合致，難認已成立本約，是此時買賣雙方應成立預約。買賣雙方交付或收取斡旋金之真意，應在取得一個優先締約之地位，若雙方嗣後不願意簽訂正式，則得放棄或加倍返還斡旋金，離開契約之拘束，為達成雙方交付斡旋金之目的，且避免無謂訴訟損耗，斡旋金之性質應解為「解約定金」。因買賣雙方此時成立預約，而預約之效力與本約有所不同，是若買賣雙方收受斡旋金，然最後未正式簽定本約，仲介業者仍不得向買賣雙方收取報酬。 本文提出上開建議，提供政府之在頒布不動產斡旋金示範契約時參考，望能明確化不動產斡旋金契約法律關係，使當事人間法律關係乾淨明瞭，並符合當事人之需求，且避免法院無謂負擔，讓不動產斡旋金契約達成其預定之功能。

Abstract This paper is a study on the preliminary contract system in Taiwan. Using methods of collecting practical judgements and academic literature, we analyze and generalize the problems of the preliminary contract in Taiwan. Then, we introduce the opinions on preliminary contract in the United Kingdom and the United States. Using comparative method as the foundation, we try to offer suggestions to our preliminary contract system. In real estate transactions in Taiwan, the real estate negotiation deposits money contract that is popular between the buyer, seller, and broker constantly causes the controversy of forming preliminary or independent contract between both the buyer and seller in court specific cases due to the drafting of contract provision. In this paper, we look into the contract based on the conclusions above, study real estate negotiation deposits money contract in actual case, and propose the theories of this paper, hoping to truly reflect the real meaning of both the buyer and seller while balancing the interests between the buyer, seller, and broker to lower the legal risks of real estate negotiation deposits money contract, in order to promote real estate negotiation deposits money contract. The fundamental controversy of preliminary contract is the question of what the effect of preliminary contract is. The practice and traditional theories in Taiwan both show that it has the effect of the parties agree to be bound and to enter into the formal contract. However, the theory decreases the differential benefit between preliminary and formal contract, resulting in the violation of the scope of damage compensation of preliminary contract, including performance interest. Considering the legal systems in the United Kingdom and the United States, our preliminary contract obviously lacks the “agreement to negotiate” type preliminary contract that exists in the United States. Also, to allow preliminary and formal contract to have differential benefits, the effect of preliminary contract should be asking the other party to negotiate, and both parties of preliminary contract should have “good faith in negotiation,” where the scope of damage compensation should be limited to reliance interest. As for how to determine whether or not a contract is “preliminary contract,” the matter should be divided into “negotiation” and “preliminary contract,” “preliminary contract” and “formal contract” for discussion. Considering the opinions of the laws of the United States, the difference between “negotiation”and “preliminary contract” can be determined with the following three indexes: “whether written contract is signed,” “whether it leads to the reliance of the other party,” “whether agreement in part of the elements of the contract is made.” As for the difference between “preliminary contract” and “ formal contract,” since of the complexity of modern transactions is incomparable to classic contracts, we should increase the essential elements of the contract instead of adhering to the essential elements of traditional contracts. For the actual operation, actual characteristics of individual contract should be studied before making appropriate judgements. In this paper, the real estate negotiation deposits is our study object. According to the three indexes mentioned above, both the buying and selling parties of the real estate negotiation deposits transaction should be at a stage where negotiation is done. With modern real estate transactions becoming more and more complex, solely agreeing on the price and object of transaction is inadequate for the recognition of established formal contract, and therefore both the buyer and seller should establish preliminary contract. The true meaning of both the buyer and seller paying or receiving deposits money should have the standing of prevail contracts. If neither party is willing to officially sign afterwards, then deposits money can be waived or paid double and freed from the binding of contract. To achieve the purpose of deposits money payment between both parties and avoid the unnecessary lawsuit loss, the characteristic of deposits money should be interpreted as “earnest money for rescind a contract.” Since both the buyer and seller established preliminary contract at this time and that the effect of preliminary contract is different from formal contract, if both the buyer and seller accept the deposits money but do not officially sign the formal contract, the broker still cannot receive renumeration from neither the buyer nor the seller. This paper offers the suggestions above, providing the government references while issuing the agreement model for real estate negotiation deposits in hopes of clarifying the legal relationship of real estate negotiation deposits , making the legal relationship between the parties involved clear, and at the same time meeting the demands of the involved parties, avoiding unnecessary burdens to the court, and finally achieving the expected functions of real estate negotiation deposits .