The Concept And Recognition Of Standard Contract Terms

The formatting clause and the general contract clause are different in the applicable law: the formatting clause gives priority to the application of thirty-ninth articles and forty-first articles of the contract law. As the three articles greatly aggravate the responsibility of the provision of the provision, the applicable results often disadvantageous to the provision of the clause; the terms of the ordinary contract do not apply to the thirty-ninth articles and forty-first articles, and the rights and obligations of both sides are equally protected.

As a contract clause is recognized as a standard clause and recognized as a non standard clause, it will often have an important impact on the rights and obligations of both parties. In practice, the parties concerned are very likely to have a dispute over whether a contract has a standard contract or whether there is a standard clause in a particular clause. Generally speaking, the contract provision provider considers that it is not a standard clause, while the relative party insists on the standard terms.

Because the boundary between standard terms and general terms is very vague, although the thirty-ninth provision of contract law provides a very clear definition for standard clauses, the definition in practice is still very difficult.

For example, are the terms and conditions of the bank loan contract formatted? Are the terms and conditions of the contract written by a large company or enterprise printed on its own terms? In some places, the identification of the standard terms is obviously relaxed. Even a natural person sells his house to another natural person, but emphasizes that only the contract can be drafted by him, according to the terms stipulated in the paction, it is also considered to be a standard clause.

We believe that the format clause must have three aspects at the same time.

In practice, there are three points to distinguish between standard and non standard clauses:

1. not all the terms signed by one side and the other side are standard terms.

Because of the above three characteristics, the standard clauses usually arise only when the status of the parties in the contract is unequal, and the party is monopolized, monopolized or dominant.

Generally speaking, the party who makes the terms of the contract does not have monopoly, exclusive or dominant position, or has monopoly, exclusive or advantageous position, but does not take advantage of this position, but gives the other party the opportunity to negotiate. The other party actually has the option of concluding and concluding the contract, and concluding the terms of the contract.

2. is there any important relationship between standard terms and the way and method of signing the contract?

A party shall not negotiate with the other party in the process of concluding a contract. If the contract is required to be signed to the other party, it must be identified and processed in terms of standard terms even if its use is originally a contract template. The party provided the other party with a standard provision which is intended for the majority of the non specific majority, but when part of the contract is negotiated with someone, it is not a standard clause.

The first clause and second paragraph of the general contract law of Germany stipulates: "the parties to the contract make specific deliberations on the terms of the contract, and they do not belong to general paction terms."

The 3. format clause must be from the contract side.

For the government in order to regulate the market, unified drafting, printing, require the parties in the paction of unified contract, such as the current Guangzhou commercial housing pre-sale process unified use of the housing pre-sale contract, can not be identified as standard contract, and can only be treated as a general contract.

A developer and an owner's will, the government is the provider of the standard terms, and the developer is only one party, not the provider of the standard terms, so there is no question of "providing the formatted clauses to the parties to exempt their responsibilities, increasing their responsibilities and excluding the other party's main rights"; the contract text is generally sold by the government to the developer, and is produced by the developer to the owner and filled out according to the requirements, but the developer uses the contract because the government department's request is not voluntary, and the interests of the developer and the owner are generally well balanced in the contract. Therefore, the developer can not impose special restrictions on it, especially when there are more than two interpretations of the contract terms, so it is not conducive to the developer's explanation. Such a contract strictly reflects the will of the government and does not reflect any specific one.

"Standard terms are prepared by the parties in advance for reuse."

The provisions of the contract law also indicate that the terms not drawn up by the parties are not standard clauses.

Of course, the format clause is drawn up by one party and submitted to the government for examination or filing, without changing the nature of its standard clauses. The terms of the contract are still formatted clauses conforming to the terms and conditions of the standard clauses drawn up by the relevant trade associations or higher level companies.