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8 At the beginning of January Mr Lee and Ms Chan entered into a real estate contract under which Mr Lee would sell an apartment at a price of RMB 800,000 yuan to Ms Chan. The contract also contained the following terms and conditions:
(i) Ms Chan would make an initial payment of RMB 100,000 yuan in five days upon the conclusion of the contract;
(ii) on or before 31 January Ms Chan would pay RMB 500,000 yuan, and then both parties would go to the real estate registration centre to make a registration of transfer of property;
(iii) 15 days after the registration, Ms Chan would pay the remaining balance;
(iv) the Property Certificate of the apartment should be kept by a real estate broker before the registration. The day after the conclusion of the said contract, Ms Chan paid the initial payment and Mr Lee put the Property Certificate of the apartment with the real estate broker as prescribed. On 20 January, however, Ms Chan found out that Mr Lee had taken back the Property Certificate from the real estate broker. Ms Chan made several calls and sent a fax to urge Mr Lee to go with her for the registration of the transfer but did not receive any response from him.
On 25 January Ms Chan despatched a letter of the dissolution of the contract to Mr Lee for the return of the initial payment of RMB 100,000 yuan. Mr Lee acknowledged receipt of the notice on 28 January.
Required:
Answer the following questions in accordance with the Contract Law, and give your reasons for your answer:
(a) state whether Ms Chan was entitled to dissolve the contract; (5 marks)
(b) state the date on which the contract was dissolved between Ms Chan and Mr Lee; (2 marks)
(c) state whether there is any legal procedure for Mr Lee where he objected to the dissolution of the contract by
Ms Chan.
答案：
8 This question requires candidates to deal with the legal issues relevant to the dissolution of a contract, the date of dissolution for a contract and the legal procedure for a party who objects to the dissolution under the Contract Law.
(a) In accordance with Article 94 (2) and Article 108 of the Contract Law, where one party explicitly expresses or demonstrates through the party’s own act that the performance of the contractual obligation is not intended, the other party may declare the dissolution of the contract before the expiration of the period for performance.
According to these provisions of law and the relevant facts, Ms Chan was entitled to dissolve the contract. Although the time limit for the registration of the transfer of property did not expire, Mr Lee’s acts demonstrated that he explicitly refused to perform the major obligation to handle the registration matters by taking back the Certificate of Property and keeping silence to Ms Chan’s request. These facts demonstrated he did not intend to perform his obligations and entitled Ms Chan to dissolve the contract.
(b) In accordance with Article 96 of the Contract Law, a party shall notify the other party if he wants to dissolve the contract according to Article 93 (2) and Article 94 of this law. The contract is dissolved at the time the other party receives the notice.Therefore, 28 January was the date on which the contract was dissolved.
(c) In accordance with Article 96 of the Contract Law, Mr Lee might apply to the people’s court or an arbitration institution for affirming the effect of the dissolution of the contract declared by Ms Chan if he held that Ms Chan had no right to dissolve the contract.
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