Intermediary contract refers to a contract in which the broker reports the opportunity to conclude a contract to the client or provides media services for concluding a contract, and the client pays the remuneration, which is also generally called an intermediary contract.
Second, the general provisions of the intermediary contract:
Due to the diversity of needs in real life, intermediary contracts generally have no fixed form and are often oral contracts. The main contents are as follows:
(1) The content of services provided by brokers to clients;
(2) the remuneration that the broker should pay to the client after providing the opportunity to conclude a contract or providing media services;
(three) the burden of the necessary expenses incurred by the intermediary in the intermediary activities;
(4) Other contents that both parties think should be agreed upon.
Third, loopholes and fraud in intermediary contracts.
1. Intermediaries often use media with high public awareness to publish false information to induce customers to be fooled.
Some intermediaries use well-known media to publish false information, such as transferring technology, seeking technical cooperation and processing contracts. In fact, what the intermediary publishes is only an advertisement, not a contract, nor an offer of a contract, but an invitation to offer. The public who sees the advertisement can find the publisher of the advertisement and negotiate with it before bidding until it is promised. Therefore, when there is a dispute between the deceived party and the intermediary about the liability for breach of contract in advertising or written expression, it is often difficult for the deceived party to win the case.
2. Brokers collude maliciously with third parties to obtain customers' advance payment, deposit and service fee.
The purpose of intermediary contract fraud is to obtain the agency fee of the client for free or unequally, so the information provided by the intermediary must be false, otherwise it does not constitute contract fraud. The usual means of intermediary is to collude with a third party maliciously and set a trap to make the cheated party willing to pay the advance payment and intermediary fee. Once the third party fails to perform the contract or escapes, the intermediary will not be investigated by law for providing intermediary services. However, it is difficult for victims to find evidence of malicious collusion between intermediaries and third parties.
3. The broker deliberately exaggerates the performance ability of the third party, and urges the entrusting party to sign a contract with the third party to obtain the intermediary service fee.
This kind of fraud is mainly manifested in that the broker exaggerates the performance ability of the third party and fails to inform the client about the real situation related to the contract, which leads to the termination of the contract between the client and the third party after partial performance, and the client has to bear the consequences of losing the agency fee because there is no legal basis for demanding the return of the agency fee.
4. The broker colludes with the third party to terminate the contract under various excuses during the performance of the contract, so that the client will bear the liability for breach of contract.
In the performance of the contract signed by the client and the third party, the broker colluded with the third party to terminate the contract under various excuses, which not only earned the agency fee, but also left the client speechless. Repeated such fraud not only obtained considerable agency fees, but also completed the handling tasks of third parties. This kind of fraud often sets traps in the contracts signed by customers and third parties, and most of them are processing contracts. For example, the middleman colludes with a third party to falsely report the processing task, and the agency fee is extracted according to the percentage of the contract target amount. The customer signs a high processing contract with a third party, and the agency fee is extracted by percentage. However, in actual performance, the third party terminated the contract under various excuses. When the customer looks for an intermediary, the intermediary refuses to refund the intermediary fee on the grounds that the termination of the contract has nothing to do with him. At this time, customers often have no evidence to prove their collusion, so they can only suffer dumb losses.
Four, the intermediary contract loopholes and fraud prevention
1. Make a serious and scientific investigation on the sources of tasks provided in the intermediary contract.
The tasks provided in intermediary contract fraud are often false. As long as the parties can seriously and scientifically investigate, it is generally possible to see through the scam. In real life, the deceived people believe the one-sided story of the middleman without careful understanding and investigation, thus falling into the contract trap.
2. The party who accepts the service of broker should know the true identity of the so-called third party in particular.
In the intermediary contract fraud, most of the deceived people ignore the strict inspection of the third party because they believe the authentic letter of the intermediary. Some deceived people don't know how to check, but they are often deceived by some superficial phenomena. The investigation of the identity of the third party should mainly be carried out from the following aspects:
A insist on reading the original and photocopy of the business license, and verify the authenticity of the original and photocopy. You can't believe it easily just by looking at the copy of the business license.
B extract the relevant information on the business license, and go to the local industrial and commercial authorities and tax authorities through legal channels to find out whether the unit is true, whether it is still operating legally, and whether it is inspected annually. By visiting these organs, we can basically find out.
C. Pay attention to whether the processing or other business activities entrusted by the third party are beyond its business scope. If it is beyond the scope, the project should be stopped immediately to avoid further losses.
3. The subject matter of the contract provided by the broker should be carefully investigated to find out whether the performance requirements are true and scientific.
Because in the fraud of intermediary contract, the intermediary information provided by the intermediary is mostly the information of processing contract, so it is mainly that the client carefully checks the subject matter in the processing contract to investigate the authenticity of the information and prevent the occurrence of fraud consequences. The usual trick of contract fraudsters is to pay a down payment, trial-produce samples and formally perform the contract after the samples are qualified. However, in the trial-production and acceptance of samples, it is often impossible to produce qualified products according to the samples or drawings provided by the other party. The cheated not only lost the agency fee and product trial-production fee, but also assumed the liability for breach of contract. Therefore, the party accepting the intermediary service must make a comprehensive investigation on the specific requirements of contracted crops before deciding whether to sign the contract or not and whether to pay the intermediary fee.
4. The party accepting the intermediary service should pay attention to the connection between the intermediary service advertisement and the intermediary service contract to prevent the intermediary from using the inconsistency between the advertisement and the contract for fraud.
Because intermediaries often publish relevant information in the form of advertisements, and fraudsters often misunderstand the contents published in advertisements as the contents of contracts, in fact, advertisements are only invitations to offer and have no contract effect. Therefore, the party accepting the intermediary service should carefully check whether the advertising terms it attracts are clearly written into the contract, even if it is faced with a standardized contract. What is not written in the contract should be clearly written in. If the broker shirks, don't sign the contract easily, otherwise it will be easier to be cheated.
5. The party accepting the intermediary service should pay attention to the restrictions on the payment of the intermediary service fee and try to prevent the contract fraud from succeeding.
According to the relevant provisions of the contract law, the payment of intermediary service fees should be made after the intermediary facilitates the signing of the contract, but it is difficult to control the intermediary to prevent fraud. Therefore, the party accepting the intermediary service can completely stipulate restrictive clauses on the payment of fees in the intermediary contract according to the principle of negotiation. For example, it is agreed to sign an intermediary contract first, and then pay the intermediary fee when the two parties effectively sign the transaction contract; It can also be agreed that if the failure of both parties to perform the contract is due to the fraud of the party receiving the intermediary service to the so-called third party, the party receiving the intermediary service has the right to ask the intermediary to refund the intermediary fee charged. The finer the restrictive clauses on the fees charged by middlemen, the less likely it is for middlemen to use contracts for fraud.
Verb (abbreviation of verb) case
An enterprise in Tianjin, after reading an information of entrusted processing published in a newspaper, found an information publishing agency. After charging the so-called information fee to the enterprise in advance, the information consulting agency provides the enterprise with the source of processing tasks, the name of the ordering party and the processing drawings, and takes the person in charge of the enterprise to the ordering party for on-the-spot investigation. If the enterprise signs a contract with the ordering party, and it is agreed that the qualified samples cannot be provided due to the reason of the processing party, after the termination of the contract, the processing party shall not require the refund of the paid material fees, trial production fees and intermediary service fees. After three tests, the processor failed to pass the acceptance and had to agree to terminate the contract. After about two years, the person in charge of the enterprise remembered that it was necessary to find an institution for appraisal. After appraisal, the drawings provided by the ordering party can't produce qualified products at all.