霍建强（Raymond Huo）律师曾任全国最大英文报《纽西兰先驱日报》文字记者，目前就职于具有百年历史的著名律师楼Hesketh Henry Lawyers。
本文经霍律师审定。如果有任何法律问题,请发传真至+64-9-3655238。
"No caveat" clauses enforceable: the Fu Hao case
谨防分割地买卖合约中的陷阱性条款──从富豪案谈起Background
背景
[1] Fu Hao Construction Limited ("Fu Hao") agreed to purchase a 32,720m2 block for around $7 million. The vendor, Landco Albany Limited ("Landco"), was an experienced property developer, approved by the local council for subdivision into 14 lots. Landco entered into an agreement with Fu Hao to sell the land subdivided in 53 lots, with Landco having the obligation to complete the subdivision. The subdivision was not expressly allowed under the district plan so the agreement contained clauses under which Landco was entitled to cancel the contract if it became unwilling or unable to obtain any required consents, and Fu Hao agreed not to lodge a caveat against the title.
[2] Landco experienced difficulty with obtaining the necessary resource consents and purported to cancel the contract. In response, Fu Hao lodged a caveat over the land. Landco challenged the caveat, and Fu Hao sought an order under the Land Transfer Act 1952 that the caveat not lapse.
[3] The High Court held that covenants not to caveat are unenforceable on the basis that they are contrary to public policy. Landco appealed to the Court of Appeal.
The "no caveat" clause
“不予警示”条款
[4] The clause stated: "the Purchaser shall not lodge a caveat against the Vendor's title prior to deposit of the Vendor's Land Transfer Plan of Subdivision."
这个条款是这样写的：“买方在卖方申报分割计划及文件之前不得就卖方之產权契据加列[具冻结作用之]警示通告”。
Caveat
“警示通告”
[5] The word "caveat" means "let a person beware". A caveat is a formal notice filed by an interested party requesting that no action is to be taken until the filer is heard. Caveats do not create new rights; they are used to protect existing rights. The person lodging the caveat must have reasonable cause to do so. If not, under section 146 of the Land Transfer Act, "any person" is liable to compensate anyone who suffers loss as a result of the caveat. Liability under that section may extend to the solicitors lodging a caveat on behalf of their client.
[6] In order to lodge a caveat, the person lodging the caveat must have a "caveatable interest" in the land.
法律规定，要放“警示通告”，申请人必须就该目标土地本身拥有“警示通告权”。
Caveatable interests
何为“警示通告权”？
[7] A caveatable interest is an interest in the land itself. It is important to note that there is a distinction between an interest in the land itself, which is caveatable, and a personal claim against the proprietor of that land, which cannot on its own sustain a caveat.
The Court of Appeal ruling
上诉庭裁决
[8] In a judgment dated 30 November 2005, the Court of Appeal (CA) reversed the High Court decision and ordered that the caveat was to lapse.
上诉庭在2005年11月30日公布的裁决中，驳回高庭判决并宣布撤销“警示通告”。
[9] The CA did not consider "no caveat" clauses to be void or unenforceable for reasons of public policy. "[…] the integrity of the system is not depreciated by declining to recognize a public policy invalidation of no caveat clauses and there are reasonable commercial and private reasons why such clauses may be stipulated and accepted."
[10] On the other hand, the CA also observed that in situations where there was an inequality of bargaining power, injustice may result by giving effect to a "no caveat" clause. However, the CA stated that this did not necessitate a blanket prohibition on "no caveat" clauses.
另一方面，上诉庭也注意到，如果在订定合同时，合同双方缔约力量悬殊，这样的失衡或许可以导致类似“不予警示”条款所带来的不公正性，但是，这并不代表应该笼而统之地将所有“不予警示”条款一概禁止。Summary
简括
[11] "No caveat" clauses contained in agreements for sale and purchase of land are common in the property development industry. There are good commercial and private reasons for "no caveat" clauses, and there should be no blanket prohibition on the ability to contract in such a way, particularly if both the vendor and the purchaser so agree. It is therefore important for the parties to seek legal advice before executing any agreements. There always exists a certain circumstance (such as where you have to pay a large sum of deposit) where it is essential to register a caveat to prevent the vendor from disposing of the land or dealing with it in a way that would affect the caveator's rights or interests.
在土地开发行业，土地买卖合约中“不予警示”条款很普遍。这些条款之所以存在是有非常合理的商业及个人原因的。（作者注：如果没有这样的条款，动不动放上一个这样的“警告”，开发商往往会因此而举步维坚。因为“警告”会导致產权契据的瑕庛，而这样的瑕庛又会导致批文、贷款申请上的困难）。因此，不能概而论之将这类条款统统禁止，尤其是买卖双方事先已同意将这类条款写进合同。因此，在签约以前，合同双方中的任何一方都必须咨询律师。现实生活中，没有一单合同是一模一样的，买卖双方各自又有各自不同的情形：例如，如果一份合约需要你缴纳大额度订金，为了防止卖方 [產权人] 将產权处置 [譬如，在卖给你之前又卖给别人而你已缴了大额订金] 或以一种有损於你的利益的方式处置该房產，那麼在產权证上加注“警示通告”就显得十会必要了。
Landco Albany Limited v Fu Hao Construction Limited CA79/04, 30 November 2005
霍律师每次还会向读者介绍几个常用但拗口的法律名词。中英对照，举例说明。读者如果在合同或其它法律文件中发现有不懂或容易引起误解的词，也可以通过本刊联络霍律师，以便综合整理，予以解释。
Caveat noun (formal, from Latin) 1. a warning that certain things need to be considered before something can be done. 2. "Let a person beware". A formal notice filed by an interested party requesting that no action is to be taken until the filer has been heard: Mary wanted to stop her husband from transferring their property to his lover and asked her lawyer whether she could lodge a caveat.
Caveat emptor noun (from Latin) "Let the buyer beware". The principle that the buyer is responsible for assessing the quality of the thing he or she buys. The shop owners said that the buyer could not recover from him for defects on the property under the doctrine of Caveat Emptor.
Fee simple noun is an estate in land in common law. Fee simple ownership represents absolute ownership of real property in which the owner has the right to control, use, and transfer the property at will. Mary asked the real estate agent: "Does fee simple mean simple fees or easy money?" "Not at all!" the agent replied.
-----------------------------------------------------------------------DISCLAIMER: THE CONTENTS OF THIS PUBLICATION ARE GENERAL IN NATURE AND ARE NOT INTENDED TO SERVE AS A SUBSTITUTE FOR LEGAL ADVICE ON A SPECIFIC MATTER. IN THE ABSENCE OF SUCH ADVICE NO RESPONSIBILITY IS ACCEPTED BY THE AUTHOR(S) FOR RELIANCE ON ANY OF THE INFORMATION PROVIDED IN THIS PUBLICATION.
免责声明﹕本文仅就有关法律问题进行一般性评价﹐不可做专项法律行为之依据。本文作/译者拥有版权﹐但并不因此负担任何其他法律责任。