The civil legislator stipulates that disposal of real estate outside the real estate registration department is considered invalid. However, many people conclude real estate sale agreements outside the real estate registration department, and include a penalty clause that the party abandoning the agreement must pay to the other party. What is the legal value of this penalty clause? Is it possible to go to court to demand it from the defendant?
In my opinion, the penal clause is not valid because the contract is considered as a whole and its clauses are dependent. so the court will reject this litigation.
If things work similar in your country to the way they work in the USA, the party claiming harm due to the other party's breach of contract could take the party in breach to court. There are at least two reasons why this may not occur. 1) the plaintiff is going to lose the case. If you contracted with a hitman to have someone killed and the hitman failed to carry out the contract, would you sue? You would be wasting your time. Contracts that are against the law are invalid and cannot be enforced through the legal system. 2) By initiating a court case, regardless of whether we are talking about a real estate purchase agreement or a contract murder, the plaintiff would be admitting he participated in an illegal activity which could have negative consequences.
Depende de que si el sistema jurídico, la disciplina jurídica registral se caracteriza por ser constitutiva o declarativa. En el primer caso, sin mayor esfuerzo la respuesta a su pregunta es que tal cláusula no tiene valor jurídico, no puede surtir efectos legales porque el contrato del cual derivaría su eficacia no ha cumplido en celebrarse bajo la forma prescrita por la ley. En cambio, en el segundo caso, la situación cambia, considero que sí podría ser válido y eficaz porque prima la autonomía de la voluntad, el pacta sunt servanda (cuya infracción origina la responsabilidad jurídica de tipo civil, clase subjetiva dado el ilícito civil de la inejecución de la prestación debida o incumplimiento de obligación contractual), la conservación del acto jurídico, entre otros principios que tutelan los intereses contractuales.
"Quod nullum est nullum producit effectum" : That which is a nullity, produces no effect.
In my opinion, the penalty provisions for violating the agreement are invalid.
The penalty is the "legal consequences" part of the complete contranctual article, and contract law that discourages illegal behavior, will also invalidate its legal consequences. And the law stipulates that real estates can only be transferred by " registration", and over-the-counter transactions are not allowed, which is a basic requirement to protect transaction security. Furthermore, the breaching party's duty of good faith shall be based on the most basic spirit of the contract, and there is no room for compliance with illegal agreement, and it cannot engage in illegal activities because of good faith.
If remedial measures are considered, where one party has paid the purchase price of a house, but is unable to register and cannot obtain the property, the breaching party can be required to return the unjust enrichment and return purchase price that has been paid; At the same time, considering whether the counterparty is at fault in the negotiation process of such transaction, it claims the liability for negligence in the contracting of invalid agreement, and requires appropriate compensation for loss of opportunity cost of negotiation.
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