Code clause
Article 510 After the remedial contract came into effect, the parties did not stipulate or clearly stipulated the quality, price or remuneration, place of performance, etc. They can supplement the agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits.
Article 511 Where the contents of a contract are unclear and cannot be determined in accordance with the provisions of the preceding article, the following provisions shall apply:
(a) the quality requirements are not clear, in accordance with the mandatory national standards; If there is no mandatory national standard, it shall be implemented in accordance with the recommended national standard; If there is no recommended national standard, it shall be implemented in accordance with industry standards; If there is no national standard or industry standard, it shall be implemented according to the usual standard or the specific standard that meets the purpose of the contract.
(2) If the price or remuneration is not clear, it shall be performed according to the market price at the place of performance when the contract is concluded; If government pricing or government-guided pricing should be implemented according to law, it shall be implemented in accordance with the provisions.
(3) Where the place of performance is unclear, if payment is made in currency, it shall be performed at the place where the party receiving the currency is located; Where real estate is delivered, it shall be performed at the place where the real estate is located; Other targets shall be performed at the place where the party performing the obligations is located.
(4) If the time limit for performance is not clear, the debtor may perform at any time, and the creditor may also request performance at any time, but the other party shall be given the necessary preparation time.
(5) If the method of performance is not clear, it shall be performed in a way conducive to the realization of the purpose of the contract.
(six) if the burden of performance expenses is not clear, it shall be borne by the party performing the obligation; The performance expenses increased due to the creditor's reasons shall be borne by the creditor.
Article 544 Where the change is unclear, it is presumed that it has not been changed. If the parties are not clear about the contents of the contract change, it is presumed that it has not been changed.
Article 582 Where the liability for breach of contract is not prescribed or clearly prescribed, and the performance is not in conformity with the contract, it shall bear the liability for breach of contract in accordance with the agreement of the parties. If the liability for breach of contract is not stipulated or clearly stipulated and cannot be determined according to the provisions of Article 510 of this Law, the injured party may reasonably choose to require the other party to bear the liability for breach of contract such as repair, rework, replacement, return, price reduction or remuneration according to the nature of the subject matter and the size of the loss.
Article 602 Where the time limit for delivery is not prescribed or clearly prescribed, the provisions of Article 510 and Item 4 of Article 511 of this Law shall apply.
Where the place of delivery is not prescribed or clearly prescribed in the second paragraph of Article 603, and the place of delivery cannot be determined according to the provisions of Article 510 of this Law, the following provisions shall apply:
(1) If the subject matter needs to be transported, the seller shall deliver the subject matter to the first carrier and the buyer;
(two) the subject matter does not need to be transported, and the seller and the buyer knew that the subject matter was at a certain place when concluding the contract, the seller should deliver the subject matter at that place; If the subject matter is unknown in a certain place, it shall be delivered to the seller's business place at the time of conclusion of the contract.
Article 607 Where the place of delivery was not prescribed or clearly prescribed by the parties, and the subject matter needs to be transported according to the provisions of Item 1, Paragraph 2 of Article 603 of this Law, after the seller delivers the subject matter to the first carrier, the risk of damage or loss of the subject matter shall be borne by the buyer.
Article 616 Where the quality of the subject matter was not prescribed or clearly prescribed, or the quality of the subject matter was not prescribed or clearly prescribed by the parties, and cannot be determined according to the provisions of Article 511 of this Law, the provisions of Item 1 of Article 511 of this Law shall apply.
Article 626 Where the parties did not agree or the agreement was unclear, the buyer shall pay the price in accordance with the agreed amount and payment method. Where there is no agreement or unclear agreement on the amount and payment method of the price, the provisions of Article 510 and Item 2 and Item 5 of Article 511 of this Law shall apply.
Article 627 Where there is no agreement or the agreement is unclear, the buyer shall pay the price at the agreed place. Where the place of payment is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 510 of this Law, the buyer shall pay at the seller's business place; However, if the payment of the agreed price is conditional on the delivery of the subject matter or the delivery of the documents for extracting the subject matter, the payment shall be made at the place where the subject matter is delivered or the documents for extracting the subject matter are delivered.
Article 628 Where there is no agreement or the agreement is unclear, the buyer shall pay the price at the agreed time. If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, the buyer shall pay at the same time as receiving the subject matter or taking out the subject matter documents.
Article 637 Where the trial period of a trial sale is not prescribed or clearly prescribed, the parties to the trial sale may stipulate the trial period of the subject matter. If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, it shall be determined by the seller.
Article 639 Where the parties did not stipulate or clearly stipulated the fee for the use of the subject matter, the seller has no right to demand payment from the buyer.
Article 650 Where there is no agreement or unclear agreement in a power supply contract, it shall be subject to the agreement of the parties. If the parties have not agreed or the agreement is unclear, the property right boundary of power supply facilities shall be the place of performance.
Article 674 Where there is no agreement or the agreement is unclear, the borrower shall pay interest within the agreed time limit. If the time limit for paying interest is not stipulated or clearly stipulated, and cannot be determined according to the provisions of Article 510 of this Law, if the loan period is less than one year, it shall be paid together with the loan; If the loan term is more than one year, it shall be paid at the end of each year; if the remaining term is less than one year, it shall be paid together with the loan.
Article 675 Where there is no agreement or the agreement is unclear, the borrower shall repay it within the agreed time limit. If the term of the loan is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 510 of this Law, the borrower may return it at any time; The lender may urge the borrower to return it within a reasonable period of time.
Article 680 Where there is no agreement or unclear agreement on the loan interest, it is forbidden to borrow at high interest, and the loan interest rate shall not violate the relevant provisions of the state.
If there is no agreement on the payment of interest in the loan contract, it shall be deemed that there is no interest.
If the loan contract does not specify the payment method of interest, and the parties cannot reach a supplementary agreement, the interest shall be determined according to the local or the parties' trading methods, trading habits, market interest rates and other factors; Loans between natural persons are regarded as interest-free.
Paragraph 2 of Article 686 Where the method of guarantee is not prescribed or clearly prescribed, if the parties have not prescribed or clearly prescribed the method of guarantee in the guarantee contract, they shall bear the guarantee liability according to the general guarantee.
Article 692 Where the period of guarantee is not stipulated or clearly stipulated in paragraphs 2 and 3, the creditor and the guarantor may stipulate the period of guarantee, but if the agreed period of guarantee expires before or at the same time as the period of performance of the principal debt, it shall be deemed that there is no agreement; If there is no agreement or the agreement is unclear, the guarantee period shall be six months from the date of expiration of the main debt performance period.
Where the creditor and the debtor have not agreed or clearly agreed on the time limit for the performance of the principal debt, the guarantee period shall be counted from the date when the grace period for the creditor to request the debtor to perform the debt expires.
Article 709 Where the method of using the lease item is not prescribed or clearly prescribed, the lessee shall use the lease item in the prescribed way. If the method of using the lease item is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 510 of this Law, it shall be used according to the nature of the lease item.
Article 721 Where there is no agreement or the agreement is unclear, the lessee shall pay the rent within the agreed time limit. If the time limit for paying the rent is not stipulated or clearly stipulated and cannot be determined according to the provisions of Article 510 of this Law, if the lease period is less than one year, it shall be paid at the expiration of the lease period; If the lease term exceeds one year, it will be paid annually; if the remaining term is less than one year, it will be paid at the expiration of the lease term.
Article 730 Term of Lease If the lease term was not prescribed or clearly prescribed by the parties, and cannot be determined in accordance with the provisions of Article 510 of this Law, it shall be regarded as an indefinite lease. The parties may terminate the contract at any time, but shall notify the other party before a reasonable period.
Article 757 The lessor and lessee may agree on the ownership of the lease item at the expiration of the lease term. Where the ownership of the leased property is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 510 of this Law, the ownership of the leased property belongs to the lessor.
Article 760 Where the ownership of the lease item was not prescribed or clearly prescribed by the parties, in this case, if the ownership of the lease item was prescribed by the parties, such stipulation shall prevail. If there is no agreement or the agreement is unclear, the lease item shall be returned to the lessor. However, due to the lessee's reasons, the contract is invalid, and the lessor does not require the return or the utility of the leased property will be significantly reduced after the return. The ownership of the leased property belongs to the lessee, and the lessee shall give the lessor reasonable compensation.
Article 782 Where there was no agreement or the agreement was unclear, the hirer shall pay the remuneration within the agreed time limit. Where the time limit for payment of remuneration is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 510 of this Law, the hirer shall pay it when the contractor delivers the work product; If the work results are delivered in part, the ordering party shall pay accordingly.
Article 827 Where the mode of packing is not stipulated or clearly stipulated in the contract of carriage, the shipper shall pack the goods in the agreed mode. Where there is no agreement or unclear agreement on the packaging method, the provisions of Article 619th of this Law shall apply.
If the shipper violates the provisions of the preceding paragraph, the carrier may refuse to transport.
Article 831 The consignee shall inspect the goods within the agreed time limit when taking delivery of the goods. If the time limit for inspection of the goods is not prescribed or clearly prescribed, and cannot be determined according to the provisions of Article 510 of this Law, the goods shall be inspected within a reasonable time limit. If the consignee does not object to the quantity, damage, etc. If the goods are delivered within the agreed time limit or a reasonable time limit, it shall be regarded as the preliminary evidence that the carrier has delivered the goods according to the records in the transport documents.
Article 833 The amount of compensation for damage or loss of the goods was not prescribed or clearly prescribed. If there is an agreement between the parties, such agreement shall prevail. If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, it shall be calculated according to the market price of the place where the goods arrive at the time of delivery or should be delivered. Where there are other provisions in laws and administrative regulations on calculation methods and compensation limits, those provisions shall prevail.
Article 858 Where there is no agreement or the agreement is unclear in the first paragraph, if the research and development fails or partially fails due to insurmountable technical difficulties during the performance of the technology development contract, the risks shall be agreed upon by the parties; If there is no agreement or the agreement is not clear, and it cannot be determined according to the provisions of Article 510 of this Law, the risks shall be reasonably shared by the parties.
Article 861 Where there is no agreement or the agreement is unclear, the right to use, the right to transfer and the method of income distribution of the technological secret achievements entrusted or cooperatively developed shall be agreed upon by the parties. Where there is no agreement or the agreement is unclear and cannot be determined according to the provisions of Article 510 of this Law, the parties concerned have the right to use and transfer the same technical scheme before being granted the patent right. However, the research developer entrusted with research and development shall not transfer the research and development results to a third party before delivering them to the client.
Article 875 Where there is no agreement or unclear agreement on the ownership and sharing of subsequent technological achievements, the parties may, on the principle of mutual benefit, agree in the contract on the sharing methods of subsequent improved technological achievements such as the exploitation of patents and the use of technical secrets; If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, one party has no right to share the technological achievements of subsequent improvement.
Article 886 Where the technical consulting contract or technical service contract does not stipulate or clearly stipulate the burden of the expenses required for the normal work of the agent, it shall be borne by the agent.
Article 889 Where the storage fee is not stipulated or clearly stipulated in the storage contract, the depositor shall pay the storage fee to the depository as agreed.
If the parties have not agreed on the storage fee or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, it shall be regarded as free storage.
Article 899 Where the storage period is not prescribed or clearly prescribed, the depositor may collect the deposit at any time.
If the parties have not agreed on the storage period or the agreement is unclear, the depository may ask the depositor to collect the deposit at any time; Where the storage period is agreed, the depository shall not require the depositor to collect the deposit in advance without special reasons.
Article 902 The depositor shall pay the safekeeping fee to the custodian within the agreed time limit if the payment period of the safekeeping fee is not stipulated or clearly stipulated in the paid safekeeping contract.
If the time limit for payment is not prescribed or clearly prescribed by the parties, and cannot be determined according to the provisions of Article 510 of this Law, the payment shall be made at the same time as the deposit is collected.
Article 914 Where the storage period is not prescribed or clearly prescribed, the depositor or warehouse receipt holder may take delivery of the goods at any time, and the depository may also require the depositor or warehouse receipt holder to take delivery of the goods at any time, but necessary preparation time shall be given.
Article 955 If there is no agreement or the agreement is unclear in the second paragraph, whether the commission merchant can increase the remuneration for exceeding the task, and if the commission merchant sells at a price higher than the price specified by the client or buys at a price lower than the price specified by the client, the remuneration may be increased according to the agreement; If there is no agreement or the agreement is unclear, and it cannot be determined according to the provisions of Article 510 of this Law, the interest shall be returned to the principal.
Article 963 Where the remuneration of the broker is not prescribed or clearly prescribed in the first paragraph, the principal shall pay the remuneration as prescribed. If the remuneration of the broker is not agreed or clearly agreed, and cannot be determined according to the provisions of Article 510 of this Law, it shall be reasonably determined according to the services of the broker. Where an intermediary provides media services for concluding a contract, the remuneration of the intermediary shall be borne equally by both parties to the contract.
Article 972 The profit distribution and loss burden of a partnership enterprise were not agreed upon or clearly agreed upon. The profit distribution and loss sharing of a partnership enterprise shall be handled in accordance with the partnership contract. If the partnership contract is not stipulated or clearly stipulated, it shall be decided by the partners through consultation; If negotiation fails, the partners shall allocate and share the capital contribution in proportion to the paid-in capital; If the proportion of capital contribution cannot be determined, it shall be equally distributed and shared by the partners.
Article 976 If the term of the partnership is not prescribed or clearly prescribed in the first paragraph, and cannot be determined according to the provisions of Article 510 of this Law, it shall be regarded as an unlimited partnership.
The practical point is 1. Article 5 10 is about how to remedy in case of no agreement or unclear agreement in the contract. The subject matter and quantity of a contract are essential terms of the contract and should be clearly agreed by the parties. If there is no agreement between the parties, or the agreement is unclear, the content of the contract cannot be determined, and the contract is not established. Therefore, this paper provides corresponding remedial measures. According to this article, if the parties have not agreed on the quality, price, place of performance, mode of performance, time limit for performance and performance fee, or the agreement is unclear, they can take the following remedial measures: (1) Supplementary determination by agreement. That is, the parties may conclude a supplementary agreement separately, clearly stipulating the quality, price or remuneration, place of performance and other supplementary contents of the subject matter of the contract. (2) If a supplementary agreement cannot be reached, it can be determined through relevant clauses in the contract or trading habits. It is worth noting that this article and Article 5 1 1 of the Civil Code are very important clauses in contract compilation, which are of great significance to the determination of contract content and the performance of the contract. In other clauses of the contract series, especially in the specific rules of typical contracts, these two clauses are often cited to determine the rules that need to be solved when the relevant contracts are unclear.
2. Article 5 1 1 is about the performance when the contract is unclear. The contents of the contract should be clear, otherwise it will not be conducive to the parties' performance of their contractual obligations. Where the quality, price or remuneration, place of performance, time limit, method of performance and performance fee are not stipulated or clearly stipulated in the contract, and cannot be determined according to Article 5 10 of the preceding Article, the relevant provisions of this Article shall apply. Compared with Article 62 of the Contract Law, this article is further improved, mainly in terms of quality requirements and performance costs. In terms of quality requirements, national standards are divided into mandatory national standards and recommended national standards; In terms of performance costs, the content of "the performance costs increased due to the creditor's reasons shall be borne by the creditor" has been added. Mandatory national standards are technical requirements to protect personal health and life and property safety, national security, ecological environment safety and meet the basic needs of economic and social management. Approved or authorized by the State Council. Recommended national standards refer to the technical requirements that are adopted voluntarily in the fields of production, exchange and use through economic means or market regulation, can meet the basic universal needs, match the mandatory national standards and lead the relevant industries. Industry standard is a standard that needs unified technical requirements in a certain industry in the country without national standards. Industry standards were originally divided into mandatory and recommended. With the further deepening of standardization reform in China, mandatory standards have been integrated and streamlined, and mandatory industry standards have been transformed into recommended industry standards. Usually, standards refer to general standards or common standards, which can be understood as not lower than the average level of the place where the contract is performed, that is, in the absence of national standards or industry standards, the quality of products or services provided by the parties is reasonable, and the minimum quality requirements should reach the average level. This provision is in line with international practice. The quality standards stipulated in this article are mandatory national standards, recommended national standards, industry standards, general standards or specific standards that meet the purpose of the contract, and there is a progressive relationship between them. The number one standard is preferred. Mandatory national standards are all-encompassing, and products and services that do not meet the mandatory standards may not be produced, sold, imported or provided. Therefore, mandatory standards must be implemented. Of course, the state encourages the adoption of recommended standards. Regarding the performance fee, this article adds the provision that "the performance fee increased due to the creditor's reasons shall be borne by the creditor". This is in line with the principle of fairness. This situation includes but is not limited to the following situations: first, the creditor's assignment of creditor's rights increases the debtor's performance cost; Second, the creditor changed its business premises, which increased the debtor's performance cost; Third, it cannot be performed at the settlement place agreed in the original contract, and the parties agree to change the place of performance or the creditors designate a new place of performance. The increased debt performance expenses shall be borne by the creditors.
3. Article 650 is about the place of performance of the power supply contract, that is, how to determine the place of performance of the power supply contract without agreement or unclear agreement. The place where the power supply contract is performed refers to the transfer point where the power supplier transfers the power ownership to the power user. According to the principle of freedom of contract, both parties can agree on the place of performance in the power supply contract. If the place of performance is agreed in the power supply contract, the power supplier shall perform the power supply obligation in accordance with the agreement. If there is no agreement or unclear agreement on the place of performance, the boundary of property rights of power supply facilities shall be the place of performance. Because the power system is networked, the power supplier and the power consumer are connected by the network, and the production, supply and use of power are completed at the same time and have continuity, which makes the performance place of the power supply contract have certain particularity, so it is difficult to apply the provisions of Article 5 1 1 of the Civil Code. It should be noted that the property right boundary of power supply facilities is the demarcation point for dividing the ownership of power supply facilities. The power supply facilities on the power supply side of the demarcation point are owned by the power supplier, and the power supply facilities on the load side of the demarcation point are owned by the power users. When the electricity user is the unit, the property right boundary of the power supply facility is usually the first magnetic bottle or switch of the substation equipment of the unit; When consumers are retail investors, the property right boundary of power supply facilities is usually the first power receiving point of the entrance wall. The property right boundary of the above power supply facilities is the place where the power supply contract is performed.
4. The following are the guidelines for adding other clauses to this item: Article 544 is in the item of "contract change", and if the change is unknown, it is included; Article 582. If there is no agreement or unclear agreement on the liability for breach of contract, the item "Different ways to bear the liability for breach of contract" shall be included; Article 602 Where the time limit for delivery is not prescribed or clearly prescribed, it shall be recorded in the "Obligations of the Seller"; In the second paragraph of Article 603, if the place of delivery is not prescribed or clearly prescribed, it shall be included in the item of "seller's obligations"; Paragraph 2 of Article 607: Where the place of delivery is not prescribed or clearly prescribed, the risk burden of the subject matter shall be included in the entry of "risk burden"; Article 6 16 is not stipulated or clearly stipulated, and the quality of the subject matter shall be recorded in the entry of "Seller's obligations"; Article 626 Where there is no agreement or unclear agreement on the amount and payment method of the price, it shall be included in the entry of "Buyer's obligations"; Article 627 There is no agreement or unclear agreement on the place of payment.