本文发表在 rolia.net 枫下论坛答案是否定的，能否relist取决于1。合同有没有条件。2。违约是由哪一方引起的，原因是什么 3。买卖双方有没有CLOSE的意愿，是否尽到了提供对方close的一切便利。第一条很明显，比如验房条款通不过，必须要签mutual release。第二条比较复杂，具体情况具体分析，卖家不签mutual release 就relist的直接后果无非是买家提起诉讼，诉讼请求是什么？无非两点1。要求按照原合同close，2。要求退还定金，mutual release，如果是卖家隐瞒房屋本身重大信息，误导买家签了本身不会签的合同，或者卖方刻意阻挠买房合理的closing诉求，比如安排银行评估，贷款出现问题时要求延期并补偿一定费用，而导致违约的情况，责任自然在卖方，法庭判决有利于买方，反之如果是买家违约on firm deal ，无close意愿，卖家又提供买方close的一切便利，则买方的诉讼理由不成立，如果按原合同执行，是卖方愿意看到的结果，如果要求退还deposit,则如果卖家以比原来高的价格卖出房屋，则deposit会有所抵扣（合同法修改后，此判罚已不成立），反之则deposit全部判罚给卖家(见附录：判罚实例)。最后第三条，卖方是否显示出执行合同的诚意，法庭的依据是买方律师于交接日向买方律师发出的AVAILABLE FOR CLOSE的律师函。以及当买房由于贷款原因提出合理的延期交接的要求，卖方是否尽最大努力提供必要的合作。

以下是关于deposit的法律定义和没有mutual release 就resale的案例。

In Iyer v. Pleasant Developments Inc., [2006] 210 O.A.C. 90, 45 R.P.R. (4th) 147, the Ontario Divisional Court set out the following principles about the nature of “deposits” in Agreements of Purchase and Sale where there was uncertainty (i.e. no provision to the contrary) as to what happens to the deposit upon default by the purchaser:

* A deposit may be forfeited without proof of damages. In other words, even in the case where the seller resells at a purchase price that is high enough to compensate for any loss from the first sale, the seller may nevertheless retain the deposit.
* The use of the word “deposit” in an Agreement of Purchase and Sale, while not determinative, will imply that the payment is intended for forfeiture upon the purchaser’s breach. If the agreement is silent and the purchaser defaults, the deposit, by its very nature is forfeited to the seller.
* There are circumstances where the loss of a deposit may be subject to relief from forfeiture. If there is relief, the deposit is returnable, in whole or in part, to the defaulting purchaser.

Whether a Court will return a deposit to a defaulting purchaser depends on a three-part test (all of which must be satisfied):

* Was the conduct of the purchaser reasonable in the circumstances?
* Was the purpose of the deposit to secure the payment of the purchase price?
* Was there a substantial disparity between the value of the property forfeited and the damage caused to the seller by the breach?

案例
Recently, the Supreme Court of British Columbia in the case of Tang v. Zhang, 2012 BCSC214 clarified how deposits are dealt with when a real estate transaction fails. In this case, Mr. Zhang entered into a standard form real estate contract to buy Ms. Tang’s and Mr. Tsang’s property. Upon acceptance of his offer, Mr. Zhang paid a deposit of $100,000 to the realty company which holds the deposit in trust until the completion date. On the completion date, Mr. Zhang (Buyer) failed to complete the purchase and the contract was terminated. Ms. Tang and Mr. Tsang (Sellers) ultimately sold their property to another buyer at a higher price.

Ms. Tang and Mr. Tsang sued Mr. Zhang to keep the deposit. In their view, the Buyer repudiated the contract and the deposit should be forfeited to the Sellers. In response, Mr. Zhang argued that the Sellers never suffered any damages as the property was in fact sold for a higher price.

Section 12 of the standard contract of purchase and sale states that:
“12. TIME: Time shall be of the essence hereof, and unless the balance of the cash payment is paid and such formal agreement to pay the balance as may be necessary is entered into on or before the Completion Date, the Seller may, at the Seller’s option, terminate this Contract, and, in such event the amount paid by the Buyer will be absolutely forfeited to the Seller in accordance with the Real Estate Services Act, on account of damages, without prejudice to the Seller’s other remedies.”

It may seem like natural justice that a Buyer who breaches a contract for no good reason should have his deposit forfeited as “punishment” or “penalty”. Surprisingly to some, the judge in Tang held that Mr. Zhang was entitled to the full return of his $100,000 deposit. The proper construction of these contractual terms is this: If the sale does not complete, the deposit is not non-refundable or automatically forfeited to the Seller. Rather, the Seller is only entitled to claim the moneys paid as a deposit on account of its damages. Therefore, if the damages are less than the deposit, the Seller is not entitled to the excess, but it is returned to the Buyer.

It is notable that in this case, the Buyer was lucky enough to have breached the real estate contract in a rising market. If the Sellers had not in fact sold their property for a better price, the deposit would still have been deducted or absolutely forfeited as damages for the sellers’ loss.

Following the reasoning in Tang v. Zhang, Section 12 of the standard form contract was amended by the BC Real Estate Association to read: “… the amount paid by the Buyer will be non-refundable and absolutely forfeited to the Seller.”

Moral of the story: the usage of different wording in legal contracts may mean the difference of $100,000 (or more).

Vyvyan Tsui & Charles J. Cao, Barristers & Solicitors更多精彩文章及讨论，请光临枫下论坛 rolia.net