On February 7th, an H real estate agent revealed that Zhang Jie and Xie Na had visited the house under their leadership twice on June 21st and 22nd, 2019, and then stopped buying the house on the grounds that they didn't like it. However, in the end, they contacted the landlord privately to purchase the house to avoid large intermediary fees. H also stated that they would sue the landlord, Xie Na, Zhang Jie, and Xie Na's mother. The keywords "Star", "Luxury House", "Jump Single", and "Xie Na and his wife will be prosecuted" instantly attracted the attention of netizens.

"Jumping orders" is a word that we often see and hear actively or passively, and may even be inadvertently prosecuted for legal liability for jumping orders for buying or renting a house. So what exactly is "jumping single"? Is "skipping orders" illegal? What are the consequences of "skipping orders"? Does H Intermediary have the right to sue Zhang Jie and Xie Na for the responsibility of "skipping the order"? This article aims to gradually define the behavior of "skipping a single" to help netizens, who are melon eating people, participate in discussions and make statements with reasonable evidence and laws to follow, and avoid falling into the "skipping a single" storm.

"It's illegal to skip orders"? There are prerequisites!

With the promulgation and implementation of the Civil Code, many people interpret the provisions of Article 965 of the Civil Code as legislative provisions that "violate the law by skipping orders." There are also many intermediary agencies that deliberately expand their publicity effects in order to create an inherent impression of "violating the law by skipping orders.". The original intention of the interpretation of "breaking the law by skipping orders" is to enable the public to better understand the legal provisions, read the Civil Code, and abide by the basic principles of honesty and credibility. However, "skipping orders" is ultimately a language of life rather than a legal term, and too much mention can make some people foolishly confused! Whether "skipping a single" is "illegal" or not requires a legal determination of "skipping a single", because the term "skipping a single" in our daily life is different from the term "skipping a single" that should be held responsible in the legal sense. Only when certain conditions are met and professional legal determination is made can "skipping a single" in daily life become a "skipping a single" in the legal sense, and thus bear legal responsibility.

Three questions will give you a first glimpse of "jumping the list"

Is it a "jump order" to not reach a transaction through an intermediary with a view to the house?

"Jumping orders" often heard in daily life occur more often in the field of real estate brokerage. In the real estate brokerage industry, "jumping orders" is also known as "jumping intermediaries.". Is it considered a "jump order" as long as both buyers and sellers of a house accept any of the services of an intermediary such as watching and negotiating, but ultimately fail to sign a formal housing sales contract through the intermediary?

2. Does the Civil Code really stipulate that "skipping orders is illegal"?

Article 965 of the Civil Code stipulates that a client who, after accepting the services of an intermediary, utilizes the trading opportunities or intermediary services provided by the intermediary to bypass the intermediary and directly enter into a contract shall pay remuneration to the intermediary. This article is located in Chapter 26, "Intermediary Contracts", in Part III, Part II, "Typical Contracts". That is, "jump orders" in the legal sense occur in intermediary contracts, which is often referred to as "illegal jump orders" by the intermediary industry.

3. What is a "skip order" in the legal sense?

To sum up, failing to conclude a transaction through this intermediary does not necessarily constitute a "jump order" in the legal sense, and only when certain conditions are met can it constitute a "jump order violation.". That is, the buyer or seller of the house has signed a confirmation letter of house reading, an agreement to entrust the purchase or sale of the house with a real estate intermediary (company), and the real estate intermediary company has fulfilled its obligations to provide exclusive house source information and lead the buyer to see the house, urge the buyer and seller of the house to meet and negotiate, and promote transactions in accordance with the agreement. In order to avoid or reduce the obligation to pay intermediary fees to the real estate intermediary according to the agreement, The act of signing a house sales contract without permission by skipping a real estate intermediary. Hereinafter referred to as "jump order default".

Four questions lead you to determine that "skipping orders is illegal"

What conditions must be met to determine "illegal skip orders"?

To constitute a "jump order violation", the following three requirements must be met simultaneously: (1) the client has accepted the services of an intermediary; （2） The client takes advantage of the information opportunities or media services provided by the intermediary; （3） The client bypasses the intermediary and enters into a contract directly.

How to prove whether it constitutes "illegal skipping orders"?

Generally, an intermediary can provide comprehensive evidence based on the following four aspects: 1. The authorization of the intermediary. If the intermediary is the exclusive agent of the lessor or seller, its claim is more likely to constitute a "jump order default" success; "The intermediary has provided housing information or transaction opportunities, and has actively performed its intermediary obligations, which can be evidenced by providing housing information, taking a look at the house, signing a taking a look confirmation, subscription deposit agreement, and communication records between the two parties;"; "The fact that the principal has used this information to make a private transaction with the seller or to entrust another person to mediate the transaction is often difficult for intermediaries to grasp, and therefore is often difficult, which also leads to the phenomenon that intermediaries consider it difficult to safeguard their rights;"; 4. Whether the client has malicious intent to avoid paying (not paying or underpaying) commissions. "Only when the intermediary can prove the above points can the principal be deemed to be in breach of contract by skipping the order.".; The client proves from the opposite perspective that it does not constitute "breach of contract" or "breach of contract".

3. Is the "jump order default clause" agreed in the intermediary contract effective?

In daily transactions, in order to protect their own interests, intermediary companies usually specify in their intermediary contracts a clause prohibiting the principal from "jumping the order", stipulating that "jumping the order" is a breach of contract, and the principal must bear the responsibility for breach of contract. Although the "anti jump order" clause is a standard clause, it has a reasonable existence and is not necessarily invalid. "If the parties have expressed their true intentions, the agreement does not violate the mandatory provisions of laws and administrative regulations, does not increase the responsibility of the client or exclude its main rights, and the intermediary has performed reasonable obligations of prompt and explanation, the provisions prohibiting" skip orders "and paying liquidated damages in the intermediary contract should be recognized as valid.". In practice, if the client fails to sign on the house inspection confirmation form, the "jump order breach clause" is not valid or is invalid due to the inability to prove a reasonable prompt.

What are the legal consequences of "skipping orders"?

Understanding the Legal Consequences of Intermediary Service Contracts

In an intermediary contract, the possible result of the intermediary providing intermediary services is to facilitate the formation of the contract between the actual transaction parties or not to facilitate the formation of the contract; The costs involved include two parts: intermediary remuneration and the costs of the intermediary activity itself. Because the content of an intermediary contract is that the intermediary provides intermediary services and the client pays remuneration, disputes in intermediary contracts often arise over whether the client should pay intermediary remuneration and intermediary activity costs.
Applying the "skip order" liability clause in Article 965 of the Civil Code, if the client's behavior meets the constitutive requirements of "skip order" liability, then the client's direct conclusion of the contract is using intermediary services, which is equivalent to the intermediary services contributing to the formation of the contract. Therefore, the legal consequences are the same as those in Article 963. The client should pay intermediary remuneration, and the intermediary activity costs should be borne by the intermediary.

Six Extended Thinking Questions

1. The intermediary H claims to be suing the Shena couple. Does H have the right to sue the Shena couple for "skip order responsibility"?

Generally, intermediaries are established in the form of companies. According to currently publicly available information, the property purchased by the Xie Na and his wife is located in the luxury residential area of Sinan Mansion in Shanghai. The author speculates that the possibility of the landlord of the enterprise entrusting the sale of the property to individual H is very small. If Zhang Jie and Xie Na have established an intermediary contract with an intermediary company, and H is an employee of the intermediary company, and taking care of the house is an act of his/her performance of duties, H is not a party to the intermediary contract, and he/she has no right to sue Xie Na and her husband for legal liability for "skipping the order.".

2. If the original landlord entrusts H with the sale of the property, based on the current situation announced by H, can it be established that he or she sued the Shena couple for "skipping the order for breach of contract"?

Assuming that the original landlord did entrust the property to an individual H, and that the subject of H suing the Shena couple for "breach of contract by skipping orders" is eligible, the establishment of its claim should still be determined from whether the conditions for "breach of contract by skipping orders" are met, namely: first, H's authorization is exclusive agency; Second, H provided housing information or transaction opportunities, and actively fulfilled its intermediary obligations; The third is that the Xie Na and his wife used H's service to make a private transaction with the seller or entrust another person to mediate the transaction; Fourth, is there any subjective malice in the Xie Na couple to avoid paying (not paying or underpaying) commissions. If all of the above four points are met, their claims may be valid.
If the original landlord entrusts H individuals and other intermediaries to sell the property, and the Xie Na and his wife accept the services of multiple intermediaries, does choosing a transaction with a lower price constitute a "jump order breach"?

The original intention of the "skip order" clause is to prevent the client from using the housing information provided by the intermediary company to skip the intermediary company to reach a transaction, making the intermediary company unable to obtain a commission. If the entrusting party does not take advantage of the above acquired information or opportunities, but obtains the same housing information through other legitimate channels available to the public, the entrusting party has the right to choose a broker with a low price and good service to facilitate the establishment of the lease contract, without constituting a "jump order" breach.

4. If the original landlord entrusts H individuals and other intermediaries to sell the property, and the Xie Na and his wife purchased the property because other intermediaries provided the couple with the property, can H request the Xie Na and his wife to bear the expenses incurred for showing the Xie Na and her husband the property?

As previously mentioned, the expenses that the client may bear in an intermediary contract include "intermediary remuneration" and "intermediary expenses." According to Article 964 of the Civil Code, if the intermediary fails to facilitate the formation of the contract, it cannot request payment of remuneration, but it can request payment of necessary expenses as agreed. Therefore, if H establishes an intermediary contract with Mr. and Mrs. Xie Na, and the contract clearly stipulates that the necessary expenses should be paid in this case, although H has no right to require Mr. and Mrs. Xie Na to pay the intermediary remuneration, he can require Mr. and Mrs. Xie Na to bear the necessary expenses such as transportation fees and communication fees incurred in providing intermediary services. If there is no agreement, there is no right to claim. In practice, the request made by some intermediary agencies may also not be supported due to the industry habit of providing free house tours in the intermediary industry.
5. Does the Shena couple buy a house after half a year, constituting a "jump order" breach of contract?

Generally, the "skip order" clause in an intermediary contract stipulates that within six months from the date of viewing the house, the principal and its related parties shall not engage in transactions with the property owner introduced by the intermediary, or they shall pay the intermediary a full intermediary agency fee. According to the agreement, buying a house after half a year is no longer within the scope of the terms and does not constitute a "jump order" breach. Therefore, if H signed an intermediary contract with Mr. and Mrs. Xie Na and agreed on a six-month period, then Mr. and Mrs. Xie Na's purchase of the house after more than half a year does not constitute a "jump order" breach of contract.

Assuming that the Shena couple purchased the property through H's intermediary service, but later discovered that H raised the landlord's offer to earn the difference, what responsibilities would H bear?

Article 962 of the Civil Code stipulates the intermediary's obligation to truthfully report on matters related to the conclusion of the contract to the client. If the intermediary intentionally conceals important facts related to the conclusion of the contract or provides false information, which harms the interests of the client, it shall not request payment of remuneration and shall be liable for compensation. Therefore, if the Xie Na and his wife discover that the intermediary H intentionally raised the landlord's offer, resulting in the two people purchasing the house at a high price, H has no right to require payment of the intermediary service fee, and should also compensate for the losses caused to the buyer due to the increased price.

epilogue

An intermediary contract is a typical type of contract in economic life, which refers to a contract where an intermediary reports an opportunity to conclude a contract to a client or provides intermediary services for concluding a contract, and the client pays the remuneration. Because the object of an intermediary contract is the service provided by the intermediary, and the non substantive nature of the service itself easily leads to the idea of "not allowing the intermediary to make a difference" when paying the remuneration, and even the behavior of "skipping the order and breaching the contract" due to excessive intermediary fees.

Autonomy of will and good faith are the basic principles of the Civil Code. "If the principal does not utilize the information or opportunities provided by the intermediary, but obtains the same housing information through other legitimate channels available to the public, the principal has the right to choose an intermediary with a low price and good service to facilitate the formation of the contract.".

Intermediary services have their own value, especially due to factors such as the complexity of real estate transactions and asymmetric information between both parties. Professional intermediary services are needed to escort the transaction, otherwise legal risks can easily arise. If the client accepts the intermediary services and saves manpower and material resources, it should pay corresponding consideration. The Civil Code has for the first time raised the prohibition of "skipping orders" to the legal level, which is a concrete manifestation of the principle of good faith. It has imposed strict restrictions on acts that violate the spirit of the contract, protecting the interests of both the principal and the intermediary.