Article 51 of the Contract Law has no right to dispose of Dr. Tsinghua 400,000 words

The "validity to be determined" in the Contract Law refers to the fact that the validity of the creditor's right contract is to be determined, but if the subject matter is delivered to the possession or registered, then as long as the transferee is bona fide and not at fault, then the transferee has obtained the ownership of the subject matter, which is beyond doubt.

In this case, the real right holder of the subject matter (which may be the ownership or other property rights) can only require the person without the right to dispose of it to bear the corresponding liability in accordance with the infringement, usually damages, but cannot be traced to the location of the object and demand the return, because the bona fide third party has legally and finally obtained the ownership of the thing, and the original right holder has lost the right to the thing, so it cannot protect its rights and interests through the right to claim in rem. Ownership must be protected, regardless of who owns what.

The question here is not whose ownership should be protected, but who has taken it.

Article 51: Where a person without the right of disposition disposes of the property of another person, and the right of disposition is obtained after the right holder recognizes it or the person without the right to dispose of it enters into a contract, the contract is valid.

Without the right to dispose of it, that is, a person without the right to dispose of the property of others.

I have a little research on the lack of authority to dispose of me, and I wrote this after graduating with a master's degree, please ask if you have any questions.

The judicial interpretation of the Supreme People's Court on the adjudication of opinions related to the trial of sales contracts has been changed to say that if the person without the right of disposition disposes of the subject matter, the contract is valid and no longer needs to be recognized by the owner.

The essence of disposition without authority is that the disposer disposes of the property of others without the right to dispose of it, thereby infringing on the property rights of others. If the disposer acquires the right to property or obtains the right to dispose of the property after the conclusion of the contract, the state of lack of right to dispose of the property can be eliminated, and the contract becomes effective. For example, if the son disposes of the father's house without consent, it belongs to "the person without the right to dispose of the property of others", and after the contract is signed, his father dies and the son inherits the father's real estate, then it is "the right to dispose of it after the contract is concluded", and the contract is valid.

Some of the laws are alive, but they are dead. This article is seriously inconsistent with life experience, I buy a house under construction from the developer, and the house is not built, who has the ownership of the house? Where does the right of disposition come from without ownership?

But who in life would consider such a contract invalid? Therefore, the subsequent judicial interpretation changed Article 51.

Article 51 of the Contract Law provides for the validity of the contract on the occasion of no right to dispose of the contract, while Article 106 of the Property Law provides for the change of the property right on the occasion of no right to dispose of the property. Nonetheless, the two are not unrelated, and the connection arises in the context of whether the contract is required to be valid in the case of bona fide acquisition. There is a great deal of controversy among scholars about this.

Scholars represented by Professor Wang Liming insisted that the contract should be valid in the case of bona fide acquisition, and Article 111 of the Draft Property Law (Third Draft) also stipulated that the transfer contract should be valid.

For example, the third draft of the Property Law (Draft).

Article 111:Where a person without the right of disposition transfers immovable or movable property to the transferee, the owner has the right to recover it, but in the following circumstances, the transferee shall immediately acquire ownership of the immovable or movable property:

1) did not know or should not have known at the time of the assignment that the assignor had no right of disposition;

2) transfer with reasonable ** compensation;

3) The transferred property has been registered if it should be registered in accordance with the provisions of law, and it has been delivered to the transferee if it does not need to be registered;

4) The assignment contract is valid.

Where the transferee acquires the ownership of immovable or movable property in accordance with the provisions of the preceding paragraph, the original owner has the right to claim compensation for losses from the person without the right of disposition.

When a person who does not have the right to dispose of the property of another person disposes of the property of another person, the contract is valid if the right holder recognizes it or the person who does not have the right to dispose of it obtains the right to dispose of it after the conclusion of the contract.

Under normal circumstances, the right to dispose of property belongs to the owner, and the disposal of another person's property by a person without the right of disposition is an invalid civil act, and is likely to constitute an infringement of the property of others, and must bear the corresponding legal responsibility. However, in the case of an act of disposition without the right under special circumstances, the law stipulates that if the right holder obtains the right of disposition after the right holder has recognized it or the person without the right of disposition has entered into a contract for the purpose of encouraging transactions, the contract concluded by such disposition act shall be valid.

Article 97 of the Property Law: The disposition of jointly owned immovable or movable property and the major repair of jointly owned immovable or movable property shall be subject to the consent of more than two-thirds of the co-owners or all co-owners, unless otherwise agreed between the co-owners.

Accordingly, there should be two situations as to whether the unauthorized disposal of common property constitutes a disposition without authority: in the case of joint ownership, the disposition of the property without the consent of the other co-owners is deemed to be disposed of without the right to dispose of it; In the case of co-ownership by shares, without the consent of the co-owners who occupy more than 2 3 shares, it is also not entitled to disposition.

According to the provisions of civil laws such as the General Provisions of the Civil Law and the Contract Law, a contract without the right to dispose of it is a "contract with pending validity" in terms of validity, that is, whether a contract without the right to dispose is valid or invalid is still difficult to determine through the contract itself, and its validity needs to be judged according to whether the person who has the right to dispose of it recognizes it. If the person who has the right to dispose of the contract recognizes the contract, then the validity of the contract is valid; If the person entitled to dispose of the contract does not pursue the person, then the contract is null and void.

For example, for example, your brother signed a sales contract with Zhang San without telling you, and the content of the contract is to sell your favorite fountain pen to Zhang San for 2,000 yuan. Here, because the pen is yours, not your brother's, he has no right to dispose of it, and the contract is a contract without the right to dispose of it.

In this case, the validity of the contract may or may not be valid. Later, you know about this matter, if your statement is to agree with your brother to sell the pen for 2000 yuan, then it is equivalent to your posthumous recognition, and the contract is valid at this time; If you do not agree with your brother to sell the pen for 2,000 yuan, then it is equivalent to you not recognizing, in this case, the contract is invalid.

The effect of the disposition without authority is to be determined, and it is a problem with your understanding.

Article 3 of the Interpretation of the Sales Contract is aimed at such a situation:

For example, someone is going to buy a property, so you know, you first signed a contract with this person, saying that I sold this house to you, and then you secretly ran to the owner to buy the house afterwards, and then someone felt that the house price was **, not only did it be considered a purchase, but ran to the court and said that when I bought this house and signed the contract, you had no ownership at all, and you had no right to dispose of it, so the contract was invalid.

In this case, the court will say whether there was ownership at the time of the conclusion of the contract does not affect the validity of the contract.

This is a different situation from Article 51 of the Contract Law, which is why the interpretation particularly emphasizes that at the time of the conclusion of the contract, that is, there was no right of disposition in the first place, but later there was one, and the validity of the contract was not affected.

In fact, if you briefly analyze it, if you don't have the right to dispose of it after the fact, why do you have to repeat the provisions of the Contract Law for the sales contract? Just because in the trading habits, many people are empty gloves white wolves, sign the contract first and then purchase, all the time in order to protect the security of the transaction, this special provision is made.

For example, in the right of expectation in inheritance, the son agreed with someone to sell part of the inheritance before the death of the father, and the son did get the inheritance after the death of the father, so should the contract continue to be performed?

Paragraph 1 of Article 3 of the Judicial Interpretation on Sales Contracts, which came into effect on July 1, 2012, stipulates that if one of the parties claims that the contract is invalid on the ground that the seller does not have ownership or the right to dispose of the subject matter at the time of conclusion of the contract, the people's court shall not support it.

Therefore, if it is a sales contract, the contract is valid.