As of 24:00 on February 7, 2020, a total of 34,546 confirmed cases of "new coronary pneumonia" have been reported nationwide. Preventing the continued spread of the epidemic is undoubtedly the most important issue facing our country. However, measures such as suspension of work and production and business will inevitably affect the performance of housing sales contracts, which will result in situations where various contracts cannot be performed on time. In this article, the author will analyze the legal nature of the epidemic and its impact on the performance of the housing sales contract, so as to put forward potential default risks and handling suggestions. (The full text is about 4,500 words, and the expected reading time is 10 minutes)

（一）Force majeure theory

1. The concept and origin of force majeure

The concept of "force majeure" originated in Roman law. Roman law refers to situations in which damage occurs due to causes that are not attributable to the debtor as incidents, such as natural disasters, wars, traffic interruptions, and the abolition of laws and regulations. Fulfill the defenses that warrant liability for potential damages.

But in modern history, the first code that explicitly used the term "force majeure" was the French "Napoleonic Code." After the continuous practice and development of modern law, force majeure is often defined as a catastrophic event that affects the performance of the contract, including not only natural disasters, but also social abnormal actions, such as wars, riots, acute infectious diseases, and military blockades.

2. my country's legal basis for force majeure

Article 180 of the "General Principles of the Civil Law" stipulates that civil liabilities shall not be borne if civil obligations cannot be performed due to force majeure. If the law provides otherwise, follow those provisions. Force majeure refers to an objective situation that cannot be foreseen, avoided, and cannot be overcome.

Article 117 of the "Contract Law" stipulates that if the contract cannot be performed due to force majeure, part or all of the liability shall be exempted based on the impact of force majeure, unless otherwise provided by law. If force majeure occurs after the party’s delay in performance, the liability cannot be exempted. The force majeure referred to in this law refers to an objective situation that cannot be foreseen, unavoidable and cannot be overcome.

Article 94 of the Contract Law stipulates that the parties may terminate the contract under any of the following circumstances: the purpose of the contract cannot be achieved due to force majeure.

Integrating the provisions of the "General Principles of the Civil Law" and the "Contract Law", we can extract the elements of force majeure, namely, unforeseen, inevitable, and insurmountable. At the same time, it can also summarize the legal consequences caused by force majeure. If the contract cannot be performed due to force majeure, part or all of the civil liability will be exempted based on the actual impact of the force majeure on the performance of the contract. If the statutory right of termination of Article 94 of the Contract Law is satisfied The parties can terminate the contract according to law.

（二）Change of circumstances

1. The concept of change of circumstances

"Change of circumstance" is also known as "change of circumstance clause" or "no change in terms of contract" in the theory of debt law. It is also called "change of circumstance" in Taiwan of China. It means that after the contract is validly established, it is not attributable to both parties. The reason for the change of circumstances has caused the foundation of the contract to be shaken or lost. If the original effect continues to be maintained, it will show fairness. Therefore, one party is allowed to request the court to change the content or terminate the contract. Therefore, the purpose of setting up the principle of change of circumstance is to balance the interests of the parties to the contract and reduce the damage to the interests of the parties to the contract by the changed situation, so as to achieve fairness and justice.

2. my country's legal basis for changes in circumstances

(1) Article 1 of the "Guiding Opinions of the Supreme People's Court on Several Issues Concerning Trial of Cases of Civil and Commercial Contract Disputes under Current Situations" stipulates:

Current product transactions and capital flows between market entities have caused a large number of disputes due to the impact of many factors such as sharp fluctuations in raw material prices, changes in market demand relationships, and insufficient liquidity. Some parties have proposed to change or cancel the applicable situation change principle in the lawsuit. The people's court shall strictly review the request of the contract in accordance with the principle of fairness and the principle of change of circumstances.

(2) Article 26 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China (2)" stipulates:

After the establishment of the contract, there have been major changes in the objective circumstances that were not foreseeable by the parties when the contract was concluded and were not caused by force majeure. The continued performance of the contract is obviously unfair to one party or cannot achieve the purpose of the contract. The parties request the people's court to change or cancel In the case of a contract, the people’s court shall determine whether to modify or terminate it in accordance with the principle of fairness and in light of the actual circumstances of the case.

3. The legislative trend of the circumstance change system

The "Civil Code (Draft)" promulgated on December 28, 2019, Article 533 of Chapter 4, Part Three, Division One, stipulates: "After the contract is established, the basic conditions of the contract occur when the parties conclude the contract. Unforeseeable major changes that are not commercial risks. If the continued performance of the contract is obviously unfair to one of the parties, the adversely affected parties can renegotiate with the other party; if the negotiation fails within a reasonable period of time, the parties can request the people's court or arbitration institution To modify or terminate the contract. The people’s court or arbitration institution shall, in light of the actual situation of the case, modify or terminate the contract in accordance with the principle of fairness."

Although China’s law does not clearly stipulate the system of change of circumstances, comprehensive analysis of judicial interpretations, trial practices, and legislative trends shows that after the establishment of the contract, there have been incidents that were not foreseen by the parties and caused by force majeure when the contract was concluded. If a major change is a commercial risk, the continued performance of the contract is obviously unfair to one party or cannot achieve the purpose of the contract, and the party requests the people’s court to modify or terminate the contract, the people’s court shall determine whether to modify or terminate the contract in accordance with the principle of fairness and the actual situation of the case. .

（三）The author's view

This "new crown pneumonia" epidemic is coming so fiercely that it swept across the country in a short period of time, and as of February 8, 2020, there has been no obvious turning point. Whether it is analyzed from a scientific or medical perspective, it is unforeseeable and inevitable for humans The insurmountable objective existence, and the nature of which is more in line with the constitutional elements of force majeure in China’s law, is a force majeure event stipulated by law, so it is more appropriate to apply the provisions of China’s law on force majeure.

However, in light of the “Notice of the Supreme People’s Court on Doing a Good Job in the People’s Courts during the Prevention and Control of Infectious Atypical Pneumonia on the Trial and Enforcement Work of the People’s Courts in accordance with the Law (Expired)”, “Because the government and relevant departments In cases where administrative measures have directly led to the failure of the contract to be performed, or the parties to the contract cannot perform at all due to the impact of the SARS epidemic", in practice, if it is to be used as force majeure to terminate the contract or exempt the parties from civil liability, its judgment The criterion is whether the force majeure causes the contract between the parties to be "directly" or "at all" impossible to perform.

In housing sales contract disputes, there are complex factors for the inability to perform the contract in full or in part, and the inability to perform the contract on time. Whether the parties are directly unable to perform the contract on time due to the "new crown pneumonia" epidemic, and whether force majeure can be applied as a relief method after the failure to perform, it is also necessary Analyze the case based on the legal relationship and facts of the case.

（一）The main obligations of the parties to the house sale contract

The house sale contract is different from the general sale contract. It is a special sale contract with a certain degree of personal dependence. The seller must fulfill the obligation to deliver the house and complete the registration of the house transfer, and the buyer must fulfill the obligation to pay the house price. In the process, many transaction details need to be done by the parties themselves. If the “new crown pneumonia” epidemic occurs after a force majeure situation, it is likely that the contract cannot be performed on time.

（二）The new crown epidemic affects situations where contracts cannot be performed on time

There are many situations in which the contract cannot be performed on time due to the epidemic, but they can be simply summarized as the following two. One is caused by the parties themselves, such as hospitalization, isolation, and home observation of one of the parties and all of them suffering from "new coronavirus pneumonia". The reason was unable to perform the contract as scheduled. The second is due to objective reasons other than the parties involved, such as the government and relevant departments promulgating the extension of the Spring Festival holiday, traffic control, delaying the company's resumption of work and other reasons that cannot perform the contract as scheduled.

（一）Opinions on handling overdue house delivery due to the impact of the epidemic

In a house purchase and sale contract, there are generally two modes of house delivery. One is that the buyer and the seller clearly agree on the delivery time, and the other is that the buyer and the seller agree on conditional delivery.

Before the agreed performance period expires and the delivery time is during the epidemic, the seller can claim force majeure to postpone the delivery time on the grounds of the epidemic, but it needs to collect and provide relevant evidence to make it clear that the delivery cannot be made due to the epidemic, and notify the buyer after the epidemic ends. The recipient will deliver the house as soon as possible. After the outbreak of the epidemic, after the agreed performance period expires, if the seller proposes to extend the delivery time due to the epidemic, the proposition is generally not supported.

Before the agreed delivery conditions have been fulfilled, since the delivery conditions have not yet been fulfilled, there is no such thing as late delivery. However, after the agreed delivery conditions are reached and the delivery performance period coincides with the epidemic period, the seller may claim that the delivery time should be postponed due to force majeure, but the buyer shall be notified to deliver the house as soon as possible within a reasonable period after the force majeure event ends.

（二）Dealing with the problem of overdue registration procedures for property rights transfer

Due to the impact of control measures such as suspension of work, production and business, if the contractually stipulates that the property rights transfer registration procedures are handled during the epidemic period, the seller may face the risk of overtime to handle the property rights change registration procedures. If the seller is unable to complete the procedures on time due to the adjustment of working hours by the government department, it is not attributable to both parties. The seller can inform the buyer to postpone the relevant procedures on this ground, but the seller must collect relevant evidence in time and report to the relevant department After the normal office is restored, the property right change registration procedures shall be completed as soon as possible within a reasonable period.

（三）Dealing with the problem of overdue payment for house purchase

In terms of current social transaction habits, the payment method for the consideration in the performance of a house purchase contract is often electronic payment, and electronic payment methods are less affected by force majeure such as the epidemic. However, in practice, there are also situations where the buyer will not pay electronically, and the transaction amount exceeds the electronic payment limit, etc., and must go to a bank branch to handle it. If the bank branch has not resumed business by then, the buyer can claim to postpone the purchase payment date on this ground, but still need to perform the stop loss and notification obligations in accordance with the law in accordance with the contract to avoid the seller’s loss of expansion, and as soon as possible after the bank branch resumes business payment.

This "new crown pneumonia" epidemic is a force majeure event, although according to the provisions of the "General Principles of the Civil Law" and the "Contract Law", the civil liability can be partially or completely exempted if the contract cannot be performed on time due to force majeure. However, it needs to be clear that the defense of force majeure does not have an impact on the performance of all housing sales contracts. If the epidemic is not the direct cause of one party’s breach of contract, it is still necessary to bear the liability for breach of contract in accordance with the law.

In the face of this nationwide epidemic, no one can stay aloof. If one of the parties is indeed unable to perform the contract as agreed due to the epidemic, it should notify the other party in time to prevent the other party from increasing its losses. Finally, I hope that everyone will properly handle potential or facing disputes based on the principles of mutual understanding and mutual accommodation, honesty and credibility, and equal consultation. Only by stopping litigation and uniting together can we extinguish the arbitrarily spread of the epidemic and win this war. "The great victory.