用票據當作斡旋金,有效嗎?

一、斡旋金的意義

(一)要約書與斡旋金契約

如果您透過房仲業者購屋,看完房子後,如果有興趣,大概房仲業者都會希望您出價讓他們去跟賣方談,而且還會請您寫一份書面,作為您委託房仲業者向賣方談價錢的依據。這個書面,不外乎就是【要約書】及【斡旋金契約】,而斡旋金契約可能會有別的名稱,比如買賣議價委託書、購買意願書、帶看同意書等等,無論名稱為何,實質上都是斡旋金契約

(二)預約的成立

要約書及斡旋金契約二者,其實都是買方委託仲介業者代為向賣方表示願意購屋之意思表示,在法律上其實都是【要約意思表示】,當賣方在要約書或斡旋金契約上簽名,認同買方的購屋條件時,就是屬於賣方表示願意售屋之意思表示,在法律上稱為【承諾意思表示】,此時因為雙方意思表示合致,契約就成立了。

這個時候所成立的契約,並不是買賣契約的【本約】,而只是【預約】。必須等到簽訂正式買賣契約書,買賣契約的本約才會成立。換言之,這個時候成立的契約僅是就標的物及價金先為擬定,作為將來訂立本約之張本,就買賣其他條件則尚未合致,應認僅係訂立買賣本約之預約。

(三)預約的意義

按契約有預約與本約之分,兩者異其性質及效力,預約權利人僅得請求對方履行訂立本約之義務,不得逕依預定之本約內容請求履行,又買賣預約,非不得就標的物及價金之範圍先為擬定,作為將來訂立本約之張本,但不能因此即認買賣本約業已成立。最高法院61年台上字第964號民事判例可資參照。

當預約成立時,權利人僅得請求對方履行訂立本約之義務,未能遽謂買賣本約業已成立,僅能認定雙方已成立預約(內政部就其制定之要約書簽約注意事項,就要約書之性質,亦認為預約)。

(四)斡旋金轉定金

斡旋金契約不同於要約書之處,會要求買方支付一筆斡旋金,作為購屋的誠意,當賣方同意賣時,這筆斡旋金的性質會轉為定金,作為購屋的擔保。

(五)定金的作用

而這個定金所要擔保的,是前面所說的【預約】,也就是說定金是契約當事人的一方,為確保契約的履行為目的,所交付他方的金錢或其他代替物的從契約。預約權利人僅得請求對方履行訂立本約之義務,如果不履行,定金的擔保作用就會發生,亦即給付定金之一方發生違約情事,他方得依定金約款沒收定金;反之,若是收受定金之一方發生違約情事,則須加倍返還定金

換言之,於賣方同意出售而成立預約時,可認係屬「買賣預約之證約定金(證明買賣預約業因賣方接受買方之承買總價款及契約書條款而成立)」及「買賣本約之立約定金(在本約成立前交付,用以擔保本約之成立)」,而於買方反悔不買而違反買賣預約,則轉為「供作買賣預約不履行之損害賠償擔保之違約定金(以強制買賣預約所定『兩造訂立買賣本約之義務』之履行為目的)」。

二、斡旋金與定金的要物性

(一)要物性

定金契約的成立,以交付定金為要件,亦即,其性質上係屬要物契約。要物契約的成立,除意思表示外,尚須實行一定的給付(必須支付金錢或代替物)

從而,若未有定金交付之事實,則根本不成立定金契約,即使原應給付定金之一方發生違約情事,他方亦無從再依定金約款請求其給付定金;反之,若已因交付定金而成立定金契約,而後續交付定金之一方發生違約情事,則其法律效果係民法第249條第2款所定交付定金之一方不得請求對方返還定金,而非他方得請求給付定金。

(二)票據是否符合要物性

由於定金必須支付金錢或代替物,如果支付的是票據,是否符合定金的要物性呢?

1、本票

因本票並非支付工具,不是金錢或代替物,故不能發生斡旋金及定金之效力

2、支票

(1)遠期支票

基於相同理由,因遠期支票在到期前不是金錢或代替物,故也不能發生斡旋金及定金之效力

(2)即期支票

即期支票雖作為支付工具,但本身並非代替物,原本不能充作定金,但是如雙方均有代物清償之意思,本諸契約自由原則,其定金契約固仍可成立,故可以發生斡旋金及定金之效力但要注意禁止背書轉讓的問題。茲舉一例說明如後。

三、禁止背書轉讓之即期支票

(一)案例

有一位買方於簽署意願書時,提出之斡旋金,係載明受款人為「OO不動產仲介經紀有限公司」並禁止背書轉讓之支票50萬元。後來賣方在意願書上簽字,而買方卻反悔,賣方起訴請求50萬元。

(二)法院見解

1、支票如有代物清償之意思,可作為斡旋金或定金

按支票係有價證券,本身並非代替物,原不能充作定金,惟如雙方均有代物清償之意思,本諸契約自由原則,其定金契約固仍可成立(71年3月13日司法院第1期司法業務研究會司法院第一廳研究意見參照)。

2、但若係禁止背書轉讓,則無法作為斡旋金或定金

系爭支票如果載明受款人為「OO不動產仲介經紀有限公司」,且禁止背書轉讓,從而,OO不動產仲介經紀有限公司無從藉由背書及交付而將系爭支票轉讓予賣方,以此觀點而言,賣方並未取得買方欲充作定金之系爭支票,定金契約並未成立

賣方無從再依系爭意願書第8條第2項第1款之約定而向被告請求給付充作損害賠償之違約定金50萬元

四、結論

如果您透過房仲業者購屋,看完房子後,如果有興趣,房仲業者都會希望您出價讓他們去跟賣方談,而且還會請您寫一份書面,作為您委託房仲業者向賣方談價錢的依據。這個書面,大部分房仲業者都會希望您簽斡旋金契約,也就是會要求您支付一筆斡旋金,作為購屋的誠意,當賣方同意賣時,這筆斡旋金的性質會轉為定金,作為購屋的擔保。於賣方同意出售而成立預約時,如果給付定金之一方發生違約情事,他方得依定金約款沒收定金;反之,若是收受定金之一方發生違約情事,則須加倍返還定金。

要發生上面沒收或加倍返還定金的前提是,定金契約有效成立。如果買方所付的斡旋金是現金,自然沒有問題;如果買方所付的斡旋金是本票、遠期支票、受款人是仲介公司的禁止背書轉讓即期支票,都無法成立定金,也不能另訴請求。

 

 

 

 

 

 

 

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