The Judge must gather evidence to determine whether the housing purchase contract in dispute is valid or not.
Main tasks and practical skills:
- 4 conditions to recognize a housing purchase contract as valid are stipulated in Resolution No. 01/2003/NQ-HDTP, as follows: condition about the subjects, condition about the contents, condition about the voluntariness, condition about the form. The notable difference between a housing purchase contract and other contracts is its own form with the two following conditions:
- Being made into writing;
- Having a notarized or authenticated certificate granted by a competent People’s Committee in accordance with legal provisions on notarization and authentication at the time of signing the contract (As by 2005, it was stipulated that district People’s Committees have the right to grant such certificates.) (Pursuant to Article 450 of the Civil Code, if law otherwise provides, such certificates would be not neccessary). Note that pursuant to Article 401 of the Civil Code 2005, a civil contract is null and void if it commits to a breach of its form, except otherwise provided.
- The Judge must gather evidence to prove all the above conditions to determine the validity of the contract.
- Note that when the above conditions are satisfied, the contract shall be in full force and legally binding to both parties, not depending on the implementation of such contract.
4.2.1.1. Recognition of housing purchase contracts where the transactions occurred before 1 July 1991
The Judge should note that there are special provisions on validity of contracts in these cases (which differs from provisions of the Civil Code)
Main tasks and practical skills:
- Where the form of the contract does not conform with legal provisions at the time of signing, validity of the contract shall be recognized in one of the following circumstances:
- if the buyer has paid all or part of the payment
- if the seller has transferred all or part of the house
- If the procedure for transfer of ownership of the house is complete, the housing purchase contract shall be deemed as valid (it is legally binding to implement what has not been implemented), regardless of its form (Item 3 of Article 5 of Resolution No. 58/1998/NQ-UBTVQH10).
- Housing purchase contracts of which the whole or part violates prohibitions or contradicts social morals as provided in the Civil Code shall be invalid wholly or partially. This is a special provision of retroactive nature, pursuant to provisions of the Civil Code, for considering the nature of the transaction occurred previously.
- The resolution of housing purchase contracts signed before 1 July 1991 has specific provisions on validity (as mentioned above), which also means that the collection of evidence must serve the request for substantiating those legal events. For example, collecting evidence on a partial payment processed for the housing purchase contract is to prove that the contract could be concluded.
- Pursuant to provisions of Resolution No. 58/1998/NQ-UBTVQH10, some actions of implementation of the contract are stipulated as being a ground for evaluating the validity of the contract. For example: handing over the house, handing over the money, conducting procedures related to the transfer of ownership right, etc. This is a special provision different from the Civil Code, and the Judge should note this provision.
- Expression of “the buyer of the house” (Point 4 of Section 1 of Inter-Circular No. 01/1999/TTLT-TANDTC-VKSNDTC dated 25 January 1999) can be construed as: the person who has the name in the contract together with the buying party, person who is the legitimate inheritor; in cases where the house has been purchased for many times, the “buyer of the house” shall be understood as the last buyer (or their legitimate inheritor)
4.2.1.2. Recognition of housing purchase contracts signed from 1 July 1991 to 30 June 1996
Main tasks and practical skills:
- This is the period when the Ordinance on Housing took efféct. Note provisions of the Civil Code.
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