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当事人针对同一笔款项先后签订《商品房买卖合同》和《借款合同》,并以商品房买卖合同为借贷合同提供担保,该种交易方式名为买卖,实为“担保”。“买卖型担保”不能被认定为让与担保,因担保物的权利并未实际移转,亦不能实现优先受偿的担保效力。“买卖型担保”合同系属诺成性约定,实质上为附条件的债的变更,不应将其混淆为代物清偿合意或代物清偿预约。
The parties signed the “Real Estate Sales Contract” and “Loan Contract” for the same payment, and provided the guarantee for the loan contract with the real estate sales contract. The transaction was called “guarantee”. “Sale and purchase guarantee ” can not be recognized as grant and guarantee, because the rights of the collateral have not been actually transferred, nor can the guarantee effect of priority compensation be realized. “Sale and purchase guarantee ” contract is a non-promissory agreement, in essence, is a conditional change of bonds, should not be confused as a substitute for liquidated objects or pay off behalf of the appointment.