Matters Needing Attention In Drafting Contracts

The matters needing attention in signing contracts are as follows:

(1) drafting of the contract text

When the two sides reached an agreement on the main terms of the paction, they entered the contract signing stage. Naturally, they raised the question of who drafted the contract text. Generally speaking, whoever drafts the text will take the initiative.

Because there is a process in which words are spoken and written, and sometimes there is a great difference in meaning.

The initiative of the parties is that they can seriously consider every clause in the contract according to the contents of the negotiations.

While the other party is not prepared mentally. Sometimes, even though the clauses in the contract are carefully considered, the understanding of the meaning of words will be different because of cultural differences, so it is hard to find their disadvantages.

Therefore, in the negotiations, we should pay attention to the drafting of the contract text and try to draft the contract text. If we fail to do so, we must draw up the contract text together with the other party.

But now some of our foreign negotiations are often initiated by foreign businessmen at the very beginning of a complete contract, forcing us to discuss each clause according to the contents of the contract.

Such a practice will put us in an extremely passive position in the negotiations. On the one hand, due to the lack of mental preparation, it is easy for the other party to plug in some clauses that are unfavorable to me or to omit some clauses that the other party must undertake; on the other hand, negotiating the contract text which is originally prepared by the party greatly restricts the exertion of our negotiation strategies and skills, and it is very difficult to modify or supplement the contract, or even sign on the other party's contract.

In addition, if we use the foreign language as the basis, we will also have many disadvantages. We should not only repeat the contents of the plation, clarify the basic meaning of the foreign language, but also consider the legal significance. Some conventional usage, including the word polysemy in foreign languages, will cause trouble and unexpected problems.

Therefore, in negotiations, we should strive to draft a draft contract negotiation.

On this basis, negotiations will help us.

It is necessary to do a lot of work to draft the contract, which can be combined with the preparations for negotiations.

For example, when negotiating a negotiation plan, the main points of negotiations are actually the main terms of the contract.

The drafting of the contract text requires not only the contractual terms, but also the responsibilities and obligations of both sides, and we need to conduct a comprehensive and detailed discussion and study of the terms and conditions to make sure which clauses can not give in and which clauses can make appropriate concession and to what extent.

Thus, when the two sides have substantive negotiations on the draft of the contract, we have the initiative.

(two) clarify the contract qualification of both parties.

A contract is a legal document with legal effect.

Therefore, both sides of the contract must be qualified to sign contracts.

Otherwise, even if signing a contract, it is also invalid contract.

When signing a contract, it is necessary to ask the parties concerned to provide relevant legal documents and prove their legal qualifications.

Generally speaking, the important negotiant and the signatory should be the chairman or general manager.

Sometimes, although the specific business negotiations, the signing of the above is not the above personnel, but also check the qualifications of the signatories.

If you understand the official written authorization certificate issued by the other party, there are commonly authorized documents, letters of attorney, etc.

Know the legal status and jurisdiction of the other party in order to ensure the validity and validity of the contract.

Examining the qualification of the other party's signing must be serious and serious.

Since the implementation of the policy of reform and opening to the outside world, China's foreign trade has expanded rapidly.

However, when negotiating with foreign businessmen and Hong Kong businessmen, they blindly and credulity the other side, so as to sign contracts so as to suffer losses and deceive.

In order to rush to import and export, some units only introduce acquaintances and do not carry out any credit investigation, thus signing a huge amount of contracts, resulting in heavy losses to enterprises and countries.

Therefore, it is very important to carry out a survey of credit information and understand the company's reputation and its ability of conduct and responsibility.

In addition, do not easily believe the other's business card, business card can not replace the certificate, some people's business card title is very large, is actually empty.

In addition, we should not only look at the credibility and assets of the parent company, but in fact, the parent company has no joint liability for the parent company.

(three) the contract should clearly stipulate both sides' obligations and liabilities for breach of contract.

Many contracts only stipulate the main clauses of bilateral pactions, but ignore the responsibilities and obligations of both parties, especially the liabilities for breach of contract.

In this way, it is virtually equal to relieving the responsibility of the two parties, laying aside the contract or reducing the binding force of the contract, and the other is that some of the terms of the contract are very vague and general, even if they stipulate their respective responsibilities and obligations, but if the terms of the contract are not clear, they can not be held accountable by the defaulting party.

For example, a city in southern China signed a contract for the sale of slag with Hong Kong businessmen.

The contract is only clear that Hong Kong businessmen can pull a car every day for a month.

Because there is no model of the pick-up truck, the result is that the truck is getting bigger and bigger.

If the contract words are ambiguous and ambiguous, 22 will be controversial in the process of execution.

For example, a contract has such a clause: "the contract shall not exceed 45 days after the entry into force of the contract. Party B shall pay Party A a performance bond of US $10 million."

If the contract fails to be paid on schedule within two months, the contract automatically becomes invalid. "

Where does the "two months" start from? The date when the contract comes into force, or the 45 day after the contract comes into effect, it is not clear.

In addition, some key words and phrases in the contract must be carefully scrutiny, not vague, sometimes only one word difference, but "lost a thousand li".

For example, when an enterprise in Fujian negotiates a contract performance guarantee with a foreign trader, a foreign trader asks for "acceptance of the supplier's compensation when the recipient takes compensation."

In order to retain or cancel the word "recognition", the two sides launched a debate, which lasted for two days. Finally, we convinced others to abandon the "recognition" requirement.

Because if we agree to retain the "recognition" clause, the performance guarantee of the supplier bank has lost its meaning.

If the supplier does not agree, the bank that issues the performance bond may not accept the claim of the recipient.

The performance guarantee is just a piece of paper, which is a form of trusting.

(four) the terms and conditions of the contract are specific, detailed and coherent.

The terms of the contract are too general for the performance of the contract.

For example, a fertilizer plant imported a set of fertilizer equipment from Japan.

A pipeline is made of stainless steel.

It is not specified that pipelines should include valves, bends, joints and so on.

As a result, in the performance of the contract, the Japanese side thought that the pipeline only refers to the pipe, and we think it includes others. However, because the contract can not be written clearly, there is no negotiation.

At the same time, we should also pay attention to the fact that the terms in the contract can not be duplicated, and can not be contradictory before and after.

For example, I signed a contract with a foreign businessman. There is such a provision in the price clause: "the above price includes all the expenses of the seller to the cabin."

In the terms of delivery, there is such a provision: "the buyer bears the 1/2 of the shipping cost and is paid by the seller's expense documents."

This contradiction is most likely to be exploited by others.

(five) a contract or signing ceremony for a contract to be held in our locality.

In more important negotiations, we should try our best to win the contract or sign the contract after the agreement is reached.

Because the location of the contract often determines which country to take the law to solve the dispute in the contract.

According to the general principles of international law, if a contract does not specify any law in which disputes arise, once a dispute arises, the court or arbitral tribunal may decide or arbitrate according to the law of the state where the contract is concluded.