The Distribution Of The Value Differences Between Multiple Selling Of The Same Second-hand House

When the seller resells one house to a third party,the foreseeable rule which established by Article 113 of the Contract Law mechanically limits the scope of damage compensation,but connives at the occurrence of profit-seeking breach of contract.In order to avoid unfair distribution of benefits,some of the High and Intermediate people's courts have successively issued regulatory documents within their jurisdictions.Unlike the commodity houses,the Supreme Court has not issued a judicial interpretation for the sale of resale property,and the difference between the contract of sale of these two kinds of properties has not received due attention which has led to the trial's analogy application of relevant provisions of the“ Interpretation of the Supreme People's Court on the Relevant Issues concerning the Application of Law for Trying Cases on Dispute over Contract for the Sale of Commodity Houses”.The loopholes of legislation and differential regional regulations triggered the obvious controversy of the distribution of interest of rising price of houses.After the analysis of fifteen typical cases in 2 provinces of Jiangsu and Fujian and 4 cities of Beijing,Shanghai,Chongqing,Guangzhou,three ways of judgment belonging to the conservative,radical,and compromise factions were drawn.On the whole,international documents(like CISG/PICC),regional legal documents(such as DCFR/PECL)and legislation and cases of different countries and regions in the Common and Civil law systems(the UK,the US,France,Germany,and Taiwan region of China).Referring to the trend which reflects from the legislations and cases,while applying the Article 113 of the Contract Law,the deliberate and gross negligence of the seller and other subjective mental states and whether to exclude them should be considered.After the discussion of the theoretical basis and the investigation of the comparative method,it is reasonable both in the substantive law and in the procedural law that the legal fiction of the expectation interest of the first buyer from the difference between prices,but the only kind of allocation scheme has the shortcoming of overkill,the disadvantages of differences in calculation standards are not uniform,and the time of splitting the interest is not clearly defined,missing items of compensation and others.China continues to explore the current judicial practice,based on the compensation for difference between values of prices of contracts of first selling and resale,examines the special way to render the judgment of specific performance status of the contract in order to allocates the interests of difference of values,in line with the national conditions,if it can be compatible with the revision of the foreseeability rules of Article 113 of Contract Law and judicial interpretation of second-hand housing transactions,which will be able to satisfy the practical needs of social development.