There are only 38 days left before the 24-year intermediate accounting exam, and students need to take time to do questions and strengthen their sense of practice questions in addition to seizing the time to learn the knowledge points of each chapter~
The knowledge points to learn today are: Chapter 5 of the Economic Law - Contract Legal System (3)
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1. Sales contract
1. Rights and responsibilities of the seller
(1) The seller shall deliver the subject matter in accordance with the agreed quality requirements.
(2) The seller shall deliver the subject matter at the agreed place. If the parties have not agreed on the place of delivery or the agreement is not clear, they may negotiate and reach a supplementary agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or transaction customs.
Where there is still no certainty, the following provisions apply:
(1) If the subject matter needs to be transported, the seller shall deliver the subject matter to the first carrier for delivery to the buyer.
(2) if the subject matter does not need to be transported, and the seller and the buyer know that the subject matter is at a certain place when they conclude the contract, the seller shall deliver the subject matter at that place; If it is not known that the subject matter is at a certain place, the subject matter shall be delivered at the seller's place of business at the time of the conclusion of the contract.
(3) The seller shall deliver the subject matter within the agreed time limit.
(1) If the parties agree on a time limit for delivery, the seller may deliver it at any time during that time limit.
(2) If the parties have not agreed on the delivery period of the subject matter or the agreement is not clear, the parties may negotiate and reach a supplementary agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or transaction customs;
If it is still uncertain, the seller may perform at any time, and the buyer may also require the seller to perform at any time, provided that the other party is given the necessary time to prepare.
(4) The seller shall perform the obligation to deliver the subject matter to the buyer or deliver the documents for the extraction of the subject matter, and to transfer the ownership of the subject matter.
(5) The seller shall guarantee the value or use effect of the subject matter. If the buyer retains part of the price as a quality deposit in accordance with the contract, and the seller fails to resolve the quality problem in a timely manner during the quality assurance period, which affects the value or use effect of the subject matter, and the seller claims to pay that part of the price, the people's court will not support it.
(6) If the buyer raises a quality objection during the inspection period, the quality assurance period, or a reasonable period, and the seller fails to repair the subject matter as required, or due to the urgency of the situation, the buyer repairs the subject matter by itself or through a third party, and claims that the seller bears the reasonable expenses incurred thereby.
(7) Where the seller fails to perform or improperly performs its obligation to pay, resulting in the buyer's inability to achieve the purpose of the contract, and the buyer claims to terminate the contract, the people's court shall uphold it.
(8) The contract stipulates that the seller shall be exempted from the warranty liability for defects in the subject matter, but the seller intentionally or due to gross negligence fails to inform the buyer of the defects in the subject matter, and the seller has no right to claim reduction or exemption from liability.
(9) Where the buyer knew or should have known that there was a defect in the quality of the subject matter at the time of signing the contract, and claimed that the seller should bear the liability for the warranty for the defects, the people's court shall not support it, unless the buyer did not know at the time of conclusion of the contract that the defect would cause a significant reduction in the basic utility of the subject matter.
(10) The seller shall deliver the subject matter in accordance with the agreed packing method.
If there is no agreement on the packaging method or the agreement is not clear, and it is still uncertain in accordance with the provisions of Article 510 of the Civil Code, it shall be packaged in a general way, and if there is no general method, a packaging method that is sufficient to protect the subject matter and conducive to saving resources and protecting the ecological environment shall be adopted.
(11) The seller has an obligation to ensure that a third party may not claim any rights against the buyer in respect of the subject matter delivered, except where the buyer knew or ought to have known at the time of conclusion of the contract that the third party had rights in the subject matter.
2. Rights and responsibilities of the buyer
(1) In the sales contract, the buyer shall pay the price at the agreed time, place, amount and method of payment.
(2) If the buyer who pays in installments fails to pay the amount of the due price reaches 1/5 of the total price, and fails to pay the due price within a reasonable period of time after being reminded, the seller may request the buyer to pay the full price or rescind the contract.
If the seller terminates the contract, it may demand payment of royalties for the subject matter from the buyer.
(3) If the quality of the subject matter does not conform to the agreement, and the buyer requests a reduction in the price, the people's court shall support it.
Where a party claims that the price difference between the subject matter that meets the agreement and the subject matter that is actually delivered is calculated according to the market value at the time of delivery, the people's court should support it.
Where the price has already been paid, and the buyer claims to return the excess price after the price reduction, the people's court shall support it.
2. Gift contract
1. The rights and obligations of the donor
(1) In a gift contract notarized by a notary public and with public welfare or moral obligations such as disaster relief, poverty alleviation, and disability assistance, if the donated property is damaged or lost due to intentional or gross negligence on the part of the donor, the donor shall be liable for damages.
(2) If the donated property is defective, the donor shall not be liable.
Prompt:
In the case of a gift with obligations, if the donated property is defective, the donor shall bear the same liability as the seller within the limits of the obligations.
If the donor deliberately fails to inform the defect or guarantee that there is no defect, causing losses to the donee, it shall be liable for damages.
(3) If the donor's economic situation deteriorates significantly, seriously affecting his production and operation or family life, he may no longer perform the gift obligation.
2. The rights and obligations of the donee
(1) Gifts may be accompanied by obligations. Where the gift is accompanied by obligations, the donee shall perform the obligations in accordance with the agreement.
(2) If the gift contract has the nature of public welfare or moral obligations such as disaster relief, poverty alleviation, and assistance to the disabled, or if the donor does not deliver the donated property in a notarized gift contract, the donee may request delivery.
3. Guarantee Contract
1. General Warranty
(1) If the parties agree in the guarantee contract that the guarantor shall bear the guarantee liability when the debtor fails to perform its obligations, it is a general guarantee.
(2) Where the parties have agreed in the guarantee contract that the guarantor shall bear the guarantee liability only when the debtor is unable to perform its debts or is unable to repay its debts, etc., and there is an expression of intent that the debtor shall bear the liabilities first, it shall be deemed to be a general guarantee.
(3) The guarantor of a general guarantee has the right to defend in the first instance. In any of the following circumstances, the guarantor shall not exercise the right to defend in the first instance:
(1) The debtor's domicile changes, resulting in major difficulties for the creditor to require the debtor to perform the debt, such as the debtor's whereabouts are unknown, the debtor has emigrated abroad, and there is no property available for enforcement.
(2) The people's court accepts the debtor's bankruptcy case and suspends the enforcement procedure.
(3) The creditor has evidence to prove that the debtor's property is insufficient to perform all debts or loses the ability to perform debts.
(4) The guarantor waives the right to defend in first action in writing.
2. Joint and several liability guarantee
(1) If the parties stipulate in the guarantee contract that the guarantor and the debtor shall be jointly and severally liable for the debt, it shall be a joint and several liability guarantee.
(2) If the parties have not agreed on the form of guarantee or the agreement is not clear, they shall bear the guarantee liability in accordance with the general guarantee.
(3) If the debtor of the joint and several liability guarantee fails to perform the due debts or the circumstances agreed by the parties occur, the creditor may require the debtor to perform the debts, and may also require the guarantor to bear the guarantee liability within the scope of the guarantee.
Prompt:
Attention should be paid to the distinction between joint and several liability guarantees and joint and several joint guarantees. Where there are two or more guarantors for the same debt, it is a joint guarantee
The joint and several liability guarantee is the joint and several between the guarantor and the debtor; Joint and several joint guarantee is joint and several between guarantors.
3. Scope of Warranty
The guarantor shall bear the guarantee liability within the scope of the agreed guarantee.
If the parties have not agreed on the scope of the guarantee or the agreement is not clear, the guarantor shall be liable for all debts (including the main creditor's right and interest, liquidated damages, damages and expenses for realizing the creditor's right).
4. Warranty Period
(1) If the guarantor and the creditor agree on the guarantee period, it shall be executed in accordance with the agreement. If not agreed, the guarantee period is 6 months.
In the case of general guarantees, the creditor has the right to file a lawsuit or apply for arbitration against the debtor within 6 months from the date of expiration of the debt performance period.
(2) If the guarantee period stipulated in the guarantee contract is earlier than or equal to the performance period of the main debt, it shall be deemed that there is no agreement, and the guarantee period shall be 6 months from the date of expiration of the performance period of the main debt.
(3) If there is no agreement between the creditor and the debtor on the time limit for the performance of the principal debt or the agreement is unclear, the guarantee period shall be calculated from the date of expiration of the grace period for the creditor to request the debtor to perform the obligation.
(4) If the guarantor and the creditor agree to guarantee the creditor's rights that occur continuously for a certain period of time within the limit of the maximum amount of creditor's rights, and the guarantor does not stipulate the guarantee period, the guarantor may terminate the guarantee contract at any time by notifying the creditor in writing, but the guarantor shall bear the guarantee liability for the creditor's rights incurred before the notice to the creditor.
If there is no agreed time limit for debt repayment, the guarantee period shall be 6 months from the date of termination of the maximum guarantee or from the date on which the creditor receives a written notice of termination of the guarantee contract from the guarantor.
4. Lease contract
1. The duration of the lease contract
(1) The lease term in the lease contract shall not exceed 20 years; If it is more than 20 years old, the excess part is invalid.
(2) At the expiration of the lease period, the parties may renew the lease contract, but the agreed lease term shall not exceed 20 years from the date of renewal.
2. Indefinite leases
(1) If the lease term is more than 6 months, the contract shall be in writing. If the parties do not adopt the written form, it shall be regarded as an indefinite lease.
(2) If the parties have not agreed on the term of the lease or the agreement is not clear, it may be supplemented by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or transaction customs; If it is still uncertain, it will be regarded as an indefinite lease.
In the case of an indefinite lease, the parties may terminate the contract at any time, provided that the other party is notified within a reasonable period of time.
(3) If the lease term expires and the lessee continues to use the leased property, and the lessor does not raise any objection, the original lease contract shall continue to be valid, but the lease term shall be indefinite.
3. Use of Leased Property
(1) The lessee shall properly keep the leased property, and shall be liable for damages if the leased property is damaged or lost due to improper storage.
(2) The lessee may, with the consent of the lessor, improve or add other things to the leased property, and the lessor may require the lessee to restore the original state or compensate for losses without the consent of the lessor.
4. Pay the rent
Where there is no agreement on the payment period or the agreement is not clear, it may be supplemented by agreement; If a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant provisions of the contract or transaction customs.
If it is still uncertain, if the lease period is less than 1 year, it shall be paid at the expiration of the lease period; If the lease period is more than one year, it shall be paid at the expiration of each year, and if the remaining period is less than one year, it shall be paid at the expiration of the lease period.
5. Termination of Contract
(1) If the lessee fails to pay or delays the payment of rent without justifiable reasons, the lessor may require the lessee to pay within a reasonable period of time, and if the lessee fails to pay within the time limit, the lessor may terminate the contract.
(2) If the leased property is partially or wholly damaged or lost due to reasons not attributable to the lessee, the lessee may request a reduction in rent or not payment of rent; If the purpose of the contract cannot be achieved due to partial or total damage or loss of the leased property, the lessee may terminate the contract.
(3) If the leased property endangers the safety or health of the lessee, the lessee may still terminate the contract at any time, even if the lessee clearly knows that the quality of the leased property is unsatisfactory at the time of entering into the contract.
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