Sign the contract with a writing pen, and if the word disappears, will you still have to pay it back?

In April 2021, the People's Court of Zezhou County, Shanxi Province, finally rendered a first-instance judgment around a case of "eliminating character pen" loans, ruling that the defendant should bear the responsibility for the loan contract and repay the loan to the plaintiff of more than 9,000 yuan.

What's going on? Niu Mou and Cao Mou are business partners who interact with each other in the project, and the personal relationship is better, and the two sides have many engineering exchanges. In November 2015, Niu borrowed 10,000 yuan in cash from Cao and wrote down an IOU, but only returned 1,000 yuan to Cao. Under the repeated urging of Cao, in March 2020, Niu re-sent An IOU of nine thousand yuan to Cao.

Cao Mou was relieved, thinking that the brotherhood was still there. As a result, that night, Cao found that the handwriting on the IOU had all disappeared. It turned out that the IOU was written by Niu Mou with a "elimination pen"! After that, Cao repeatedly asked Niu for loans without success. There is no way, this brother can't do it, Cao can only choose to sue the court.

In fact, with the development of science and technology and the rise of e-commerce, a wide variety of consumption pens and convenient purchase channels have led to more and more phenomena of signing contracts with elimination pens to avoid contractual liabilities. For example, Ms. Shandong Ning once reported to the police that she had a 310,000 yuan IOU handwriting that disappeared and became a "white strip", leaving only a red handprint, and the police found that the other party used a writing pen when typing the IOU.

Can signing a contract with a writing pen really avoid legal liability?

The parties deliberately use a writing pen to conclude a contract or write other documents for illegal purposes, and even after the handwriting has disappeared, they are still subject to civil obligations as determined in the contract or other documents. However, due to the disappearance of handwriting, the counterparty to the contract faces difficulties in presenting evidence and may have to bear certain risks.

According to the provisions of the Contract Part of the Civil Code, as long as the parties have the corresponding capacity for civil conduct, conclude the contract equally and voluntarily, and the content of the contract does not violate the law and the public interest, and does not endanger the rights of others, the contract is valid. Unless provided by laws or administrative regulations or special agreements between the parties, the contract does not necessarily have to be concluded in writing. For contracts signed with faded pens, although the handwriting has disappeared, the content of the contract is still binding on the parties.

But although the eraser pen can eliminate the color of the word, so that the text seems to disappear under the naked eye, it seems that there is really no trace left. But as the iron of evidence science ----- Lokar's law, "when two objects touch, there will be a phenomenon of transfer", revealing that as long as the person looking for is careful and professional enough, he will be able to find the physical evidence left behind. With the development of the times, the progress is not only the elimination technology of the brush, but also the technology and tools identified by the police. Even if it is a writing pen, the tip of the pen has traces of contact with the paper, and the police really can't identify it? As long as the plaintiff is willing to pay the corresponding appraisal fee in advance and determines the fact that the defendant did sign the contract, it is very likely that the court will support the plaintiff's litigation claim and will also award the appraisal fee to the losing party, that is, the defendant bears a high appraisal fee. So the idea that responsibility can be evaded with a scribble pen seems amusing to me, and it is a lack of necessary understanding of the technical level of the modern police.

For the evidence that the plaintiff can produce, although the handwriting will disappear on the paper written with a writing pen, there will still be traces of the time on the paper. Once the parties find that the handwriting of the contract has disappeared, they shall keep the vouchers and report the case in a timely manner, and conduct handwriting identification of the indentations left during writing. In addition, the court can also comprehensively prove the existence of the contractual relationship by combining factors such as proof of remittance, ability to pay, transaction habits, relationship between the parties and the details of the transaction stated by the parties. Therefore, in the event of a loan dispute, even if the handwriting on the contract disappears and a flawed form of "IOU" or "receipt" is formed, the court will combine other evidence to make a comprehensive judgment, and the scam of the criminals is not so easy to succeed.

The above is only the civil liability involved in the contract, in fact, the use of a pen to sign a contract has been suspected of fraud, after all, the use of a pen to sign a contract is similar to the purpose of illegal possession, the use of deceptive methods, defrauding a large amount of public and private property, if the actor does not recognize the loan matters afterwards, does not perform the loan obligation, it is likely to bear criminal liability.

What can creditors do to prevent this from happening?

(1) When borrowing, comprehensively consider the repayment ability of the other party

As the saying goes, there is borrowing and repaying, and it is not difficult to borrow again. When you borrow money to others, please fully consider the other party's ability to repay the debt, do not be blinded by the good face, if the other party has no ability to repay the debt, even if the lawsuit is won, the other party has no property to enforce.

(2) Use electronic printing as much as possible

Where the core content of the contract is involved, as far as possible, use the method of printing the document, so as not to be altered without permission, it is best to use the printing method for all the contents of the contract, and clearly stipulate in the contract that the parts added or deleted by the handwriting are invalid.

(3) Use a pen brought by the creditor

As a creditor, it is reasonable to protect its legitimate rights and interests, and it is also reasonable to occupy a relatively strong party in the contract, so the creditor can ask the other party to use the pen and signature itself before the two parties sign the contract, so as not to miss.

(4) Avoid cash transfers as much as possible

Cash transfer is difficult to keep the voucher for transferring the loan, and it is convenient to collect evidence by using bank transfer, WeChat payment, etc.

(Author: Beijing Jingshi (Chongqing) Law Firm, Guo Yuanjiang, Tan Kaiwen, please indicate the source when reprinting)