In any of the following circumstances, the contract is invalid:
(1) One party enters into a contract by means of fraud or coercion, which harms the interests of the state;
(2) Malicious collusion that harms the interests of the state, the collective or a third party;
(3) Covering up illegal purposes in a legal form;
(4) damaging the public interest;
(5) Violating the mandatory provisions of laws and administrative regulations.
2) Liability for breach of contract
Article Source: Author: Published: 2006- 12-02
Summary of the text
Nowadays, the relationship between contract and people is getting closer and closer. To buy a house, a purchase contract must be concluded; Lease, to sign a lease contract; All kinds of contracts appear in our life, so it is very important to study the liability system for breach of contract in contract law and safeguard the legitimate rights and interests of the party who has suffered losses, both for the practice and theoretical research of contract law.
The liability for breach of contract is an indispensable part of the contract legal system. The law stipulates or stipulates the specific legal responsibilities that the parties should bear when they fail to perform or not fully perform the contract, thus making the relationship between the rights and obligations of the parties more clear. The main content of liability for breach of contract refers to the property liability that the parties should bear when they violate their obligations, including three responsibilities: continuing to perform the contract, taking remedial measures and compensating for losses. The party who suffers losses may, according to the specific circumstances of his losses, require the other party to undertake the responsibility of continuing to perform the contract, repairing, replacing, redoing, reducing the price or remuneration and compensating for the losses. The liability for breach of contract is guaranteed by law. After the breach of contract occurs, the parties shall require the breaching party to bear corresponding responsibilities according to the contract. In case of any dispute over the determination or assumption of liability for breach of contract, the parties may request the arbitration institution (with written agreement) or the court for legal protection.
1. 1 liability for breach of contract
1. 1. 1 the concept of liability for breach of contract
The liability for breach of contract refers to the legal liability arising from the failure of the parties to perform their contractual debts or to perform their contractual debts in time. Liability for breach of contract is not only the legal consequence of breach of contract, but also the performance of contract effectiveness. In the current contract law, the liability for breach of contract only refers to the property liability of the breaching party to the observant party, which is completely separated from administrative liability and criminal liability, and belongs to a kind of civil liability, so it has the general legal characteristics of civil liability, such as punitive and compensatory liability for breach of contract. The punitive performance of the liability for breach of contract is a negative evaluation of the breach of contract by law, not through the amount of compensation or liquidated damages higher than the actual damage of the victim; The compensatory performance of the liability for breach of contract is a kind of compensation for the damage suffered by the victim. Some scholars have pointed out that whether the liability for breach of contract is both punitive and compensatory depends on whether the liability for breach of contract belongs to fault liability or no-fault liability in nature. No-fault liability is only compensatory, while fault liability is both punitive and compensatory.
1. 1.2 characteristics of liability for breach of contract
(1) The liability for breach of contract refers to the legal consequences arising from the parties' failure to perform their contractual debts or their non-compliance with the contract.
This feature contains two meanings: the establishment of liability for breach of contract is based on the existence of a valid contract. The establishment of liability for breach of contract is the result of the parties' breach of contract obligations.
The liability for breach of contract is relative, that is, the liability for breach of contract can only occur between specific parties, and the third party outside the contractual relationship does not bear the liability for breach of contract;
③ Contractability of liability for breach of contract; According to the principle of voluntary contract, the parties to a contract can agree on the way to bear the liability for breach of contract and the amount of liquidated damages in the contract, but this does not deny the mandatory liability for breach of contract, because such an agreement must be within the scope permitted by law.
1. 1.3 constitutive elements of liability for breach of contract
The constitutive elements of liability for breach of contract refer to the necessary elements for the establishment of liability for breach of contract.
The constitutive elements of liability for breach of contract are divided into general constitutive elements and special constitutive elements. General constituent elements are necessary for all liabilities for breach of contract, while special constituent elements are necessary for specific forms of liabilities for breach of contract. Traditional theory summarizes the constitutive elements of liability for breach of contract into four aspects: breach of contract, damage facts, causal relationship between breach of contract and damage facts, and subjective fault of the actor. In fact, these four elements are not necessary for all liabilities for breach of contract, but only the constitutive elements of the form of liability for damages. Different forms of liability for breach of contract have different constitutive elements of liability for breach of contract. For example, there is only one kind of breach of contract as a constituent element of the liability for breach of contract. Of course, under the principle of fault liability, the breaching party is also required to be at fault. The constitutive requirements of compulsory actual performance are: if the breaching party fails to perform the contract, the breaching party can perform it and the parties to the contract demand it; The constitutive elements of loss compensation are: breach of contract, damage, causal relationship between breach of contract and damage results, and in the case of fault liability, the breaching party must be at fault. Specifically, it will be elaborated in the way of taking responsibility for breach of contract.
1.2 Default
1.2. 1 concept of breach of contract: breach of contract refers to the breach of contract obligations by the parties, also known as non-performance of contract debts. "Contract Law" expresses the meaning of breach of contract by failing to perform contractual obligations or performing contractual obligations inconsistent with the agreement.
1.2.2 Composition of breach of contract: breach of contract only refers to the objective facts of breach of contract obligations, excluding the subjective fault of the parties and the third party concerned.
1.2.3 Classification of breach of contract: Contract laws in different countries have different classifications of forms of breach of contract. China's Contract Law divides the formal system of breach of contract into:
① Anticipated breach of contract
For a long time, people are used to equating breach of contract with actual breach of contract, but cases of applying anticipatory breach of contract rules to investigate the defaulting party's anticipatory breach of contract have already appeared, such as: 1994 "Haimen Foreign Trade Company v. Nantong Oriental Feed Supply Company", Nantong Intermediate People's Court of Jiangsu Province, which confirmed the establishment of anticipatory breach of contract and sentenced it to bear the responsibility. 108 of People's Republic of China (PRC) contract law passed in March, 1999 has perfected and developed the system of breach of contract in China's contract law.
A. the concept of anticipatory breach of contract
Anticipatory breach of contract is also called early breach of contract, including express breach of contract and implied breach of contract. The so-called express breach of contract means that before the contract performance period comes, one party clearly and unambiguously expresses to the other party that it fails to perform the contract without justifiable reasons. The so-called implied breach of contract means that one party has conclusive evidence to prove that the other party fails to perform or cannot perform the contract when the performance period comes, and the other party is unwilling to provide the necessary performance guarantee. Anticipated breach of contract indicates that contractual obligations will not be fulfilled in the future, rather than actual breach of contractual obligations. Therefore, some scholars believe that this kind of breach of contract is only "a kind of danger of breach of contract" or "possible breach of contract", which infringes on not the actual creditor's rights, but the creditor's rights with incomplete effect before the expiration of the performance period or the creditor's rights with strong expectation.
B. constitutive elements of anticipatory breach of contract
Article 108 of the Contract Law stipulates: "If one party explicitly expresses or shows by its own behavior that it will not perform its contractual obligations, the other party may require it to bear the liability for breach of contract before the expiration of the contract performance period." It can be seen that China's contract law can be divided into two categories: express breach of contract and implied breach of contract.
A. express breach of contract
The breaching party must express it to the other party clearly, clearly, voluntarily and unconditionally. If the breaching party makes a conditional or vague expression, its intention to breach the contract is uncertain and does not constitute an expected breach of contract. For example, Party A promises to buy 1 00 tons of coal from Party B every week from 1 day in a certain year for a period of1year. In April, Party A said to Party B, "Unless our steel output is further increased and more coal is needed, we will stop buying coal from you from July." A does not constitute an expected breach of contract. Only in July, if Party A really stops buying coal, Party B can ask Party A to actually perform it or bring an actual breach of contract lawsuit to the court.
B. implied breach of contract
If the parties clearly express their failure to perform their contractual obligations by their own actual actions, they do not ask for the termination of the contract and generally do not take the initiative to bear the liability for breach of contract. For example, in the sales contract of agricultural and sideline products, the seller did not organize off-season supply, and in fact could not fulfill the supply obligation; Another example is that in the processing contract, the contractor's processing equipment and technical conditions can not meet the requirements of the contract, and no new equipment and technical conditions are added within the time limit agreed in the contract. This fact can be regarded as that the observant party has failed to fulfill its contractual obligations, and the observant party has the right to demand the defaulting party to bear the liability for breach of contract.
2, the way to bear the liability for breach of contract
China's "Contract Law" stipulates five types of liability for breach of contract.
Continuing to perform, also known as compulsory actual performance, refers to the form of responsibility that the observant party requests the court to force the defaulting party to continue to perform the contractual debts when the defaulting party fails to perform its contractual obligations. Under its constitutive requirements: (1) there is a breach of contract; (2) The observant party must require the defaulting party to continue to perform the contract debts; (3) The breaching party must be able to continue to perform the contract. On the surface, it is still the obligation agreed in the original contract to continue to perform. But in fact, continuing to perform contractual obligations is different from normal performance in nature. General performance is to travel as scheduled when the contract expires, and to continue to perform after the contract expires. In addition, continuing to perform with the nature of national compulsion is a negative evaluation of the actor's breach of contract. There is such a case: a company in Nanyang signed a steel purchase and sale contract with a foreign steel dealer before the Spring Festival, and agreed to deliver the goods at the end of February. However, with the soaring steel price after the holiday, dealers would rather bear the responsibility for breach of contract than perform the contract. As a result, a company in Nanyang, the observant party, took the dealer to court and demanded that the contract be fulfilled. The court ruled that the dealer would continue to perform the contract. As can be seen from this case, compared with the forms of liability for breach of contract such as liquidated damages and damages, continuing to perform is more conducive to the realization of the purpose of the contract.
When the breaching party fails to perform the contract or fails to fully perform the contract, resulting in the failure to realize the rights of the other party, if the injured party thinks that the breaching party can take certain remedial measures to recover the contract losses, it may request the other party to repair, replace or redo the contract. The content is rights and obligations, the focus of rights and obligations is property liability, and the smooth performance of the contract is the smooth realization of property rights. Therefore, it is of great significance to establish the exemption conditions and terms of liability for breach of contract.
Force majeure is a legal system to deal with the agreed contract system according to the provisions of General Principles of Civil Law and Contract Law. After the Contract comes into effect, the Contract cannot be performed due to objective circumstances that the parties cannot foresee, avoid and overcome. Force majeure occurs after the contract comes into effect and before the contract is terminated. No matter to what extent the contract is performed, the performance costs and expenses losses caused by force majeure shall be borne by the losing party. Article 1 17 of the Contract Law of People's Republic of China (PRC) stipulates: "If the contract cannot be performed due to force majeure, it shall be based on serious natural disasters such as earthquake, flood, wind disaster, rain disaster, snowstorm, high temperature, low temperature, etc. which cannot be foreseen or determined at the time of conclusion of the contract. Agreed force majeure means that the parties foresee the unexpected circumstances that may occur during the performance of the contract and clearly stipulate in the contract which circumstances are force majeure. When these situations occur, the parties may be exempted from the responsibility of non-performance or incomplete performance of the contract, including the liability for breach of contract.
In real life, some enterprises abuse force majeure in order to avoid taking responsibility for breach of contract. For example, Company A signed a supply contract with Company B, stipulating that Company B would provide 100 tons of first-class refined aluminum ingots to Company A within one month, with a value of 1.3 million yuan. Both parties agree that if the goods cannot be delivered on time, they will pay the liquidated damages of 0. 1% of the payment amount to Company A for each day overdue. Due to the organization of supply, Company B delivered 65,438+000 tons of refined aluminum ingots to Company A only two months later. Company A found that it was not a first-class refined aluminum ingot, but a second-class refined aluminum ingot, so it refused to pay on the grounds that the other party breached the contract, and demanded that Company B pay a monthly penalty of 39,000 yuan, and asked Company B to provide 100 ton of first-class refined aluminum ingot again. However, Company B claims that the late delivery is not its own fault, but the adjustment of the national industrial policy, which belongs to force majeure and should not pay liquidated damages. This is an abuse of force majeure and evasion of responsibility, because failure to organize the supply of goods is a normal market risk, and the parties concerned should bear their own responsibilities.
refer to
1 Wei Zhenying, editor-in-chief: Civil Law, first edition in September 2000, Peking University Publishing House, Peking University, Zhongguancun, Haidian District, Beijing, pp. 422, 434 and 435.
2 Cui Jianyuan: Contract Law, Law Press, 1998, p. 1 186.
3 Zhao Xudong: Contract Law,1February 2000, China Central Radio and TV University Press, 180.
4 Cui Jianyuan: Research on Contract Liability, Jilin University Press, 1992.
5 Wang Zejian: Theory and Case Study of Civil Law Volume I, Taiwan Province Xingfeng Publishing House 1997.
6 Wang Liming: On Liability for Breach of Contract, China University of Political Science and Law Press, 1996.
7 Comet Liang: From Fault Liability to Strict Liability, Collected Papers on Civil and Commercial Law, Volume 8, Law Press, 1997.
8 People's Republic of China (PRC) contract law
9 Comet Beam: General Theory of Civil Law, Law Press, 1998.
10 Mei Zhongxie: Essentials of Civil Law, China University of Political Science and Law Press, 1998.
1 1 edited by Tong Rou: Civil Law of China, Law Press, 1990.
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