Legal risk management contracts (b)
Finishing learning experiences and knowledge of legal risk management process of the contract, so that I find myself, and I hope you can share with everyone.
This section deals with the law:
"People's Republic of China Contract Law"
, "urban rental contract interpretation,"
"Construction Contract interpretation"
- the spirit of the contract -
1. Freedom of Contract
Question 1: Chongqing diners at a restaurant were dubbed "bullied beef museum" because the boss asked each diners must consume three bottles of beverages in the store every time you dine on the grounds that its beef main course very cheap. What do you think? ()
A. special business model, legal
B. mandatory spending, illegal
The correct answer: B
"Contract Law" assumes that each contract subject are rational, you can judge for yourself, but also to be responsible for their own choices. So the main contract should be free to sign a contract, but can not have imposed a contract to others.
When the flowers inserted in cow dung, when, if the parties are voluntary, it is recognized and protected by law.
2. sacred contract
Question 2: According to a contractual dispute is ().
A. contract priority
B. law priority
C. Self-experience priority
D. leadership priority opinions
The correct answer: A
I believe many people will choose B, considered the supreme law, the contract can not take precedence over the law. But when dealing with legal contract disputes, but in reality it is a contract priority.
Article VIII of the "Contract Law": A lawfully formed contract is legally binding on the parties.
"Contract Law" Article 60: The parties shallAccording to the agreement to fully implement their obligations.
"Contract Law" Article 107: If a party fails to fulfill its contractual obligations to fulfill contractual obligations or does not conform to the agreement shall bear continue to perform, to take remedial measures, or to compensate for losses.
Therefore, the contract is the law of the parties, but we understand it can not stop here, we have to understand "the contract is greater than the law."
In fact, the "Contract Law" norms are a large number of arbitrary norms, mainly in the contract when there are loopholes or the agreement is unclear when it play a role, in other words, we can exclude the application of the provisions of the law by their own agreement, that is, He said that the parties can change their civil rights and obligations by consensus. It can be said that the parties to the contract legislation for themselves by consensus, which is what we often say"A contract is a broad source of law." 。
Example: When the Luohe city government is south Guangzhou-Plastic Co., Ltd. sued cash investment "will be delivered to the power plant Luohe City, Guangzhou City Southern Plastic Co., Ltd. strong free use" commitment.
By the Henan Provincial Higher People's Court, the parties voluntarily reach an agreement, the Luohe city government because it is not put Luohe power plant south of Guangzhou, a strong compensation Plastic Co., Ltd. 38 million yuan by the Luohe City People's Government paid in local revenues as compensation payments.
3. privity of contract
Question 3: A business because of construction led to the development of Company B's house can not be completed on schedule, ultimately resulting in Company B delay the delivery of propane to real estate buyers. Will the breach delivery of real estate who should bear? ()
A. A company
B. The company B
C. propan own
D. be liable
The correct answer: B
Signed a contract will fulfill the contract, because freedom of contract, contract sanctity.
Article VIII of the "Contract Law": A lawfully formed contract is legally binding on the parties.
Terms in the description, the contract established by law only have legally binding on the parties, other people can not, it is the popular "one yard owned by a yard."
butRelative contract there are exceptions! Exceptional circumstances relativity principle of the contract are:
1. Contract maintenance .
Subrogation provided for in Article 73 "Contract Law", avoidance provisions of Article 74, breaking the privity of contract, the contract creditors in the statutory conditions achievements, the third party claim rights other than contractual relationships.
2. Sales can not devastate lease .
According to Article 229 "Contract Law" and "urban rental contract interpretation" of Article 20, the lease period, ownership of the leased property (due to the sale, donation, inheritance, business combination) changed, the original lease contract to the new owner continue to be valid, that is, the new owner should bear the legal original lease contract.
3. Subcontractor of joint and several liability .
"Contract Law" Article 272 paragraph states: "The contractor or the contractor for survey, design, construction contract letting people agree that part of the contracted work to a third party may be a third person to complete its completion. results of the work with the contractor or the contractor for survey, design, or construction shall be jointly and severally liable to the developer. "
"Construction Contract interpretation," Article 25 states: "The dispute arises because of the quality of construction, and the developer may be a prime contractor, subcontractor and the actual construction of man-made co-defendant litigation."
4. Illegal subcontracting, illegal subcontracting under the circumstances, the developer responsible for the actual construction .
"Construction Contract interpretation," Article 26 states: "the actual construction to subcontractors, illegal subcontracting to prosecute the accused man, the people's court shall accept the actual construction accused person to contract human rights advocates, the court may add. illegal subcontracting subcontractor or man-made party to the case. Employer liable only for actual construction works in arrears price range. "
5. Single intermodal contract .
"Contract Law" Article 313 stipulates that: "two or more carriers to the same means of transportation, the carrier contracting with the consignor shall be responsible for the entire transport losses occurred at a particular segment, and the shipper. the carrier contracting carrier and the segment jointly and severally liable. ".
It should be noted: the multimodal transport contract, the actual carrier and multimodal transport operator is not jointly and severally liable, did not break contractual issues relativity (Article 321 "Contract Law").
