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| Commen Sense >> Policy >> Customs Law of the P.R.C... |
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ContractCT LAW OF THE PEOPLE'S REPUBLIC OF CHINA (Adopted and Promulgated by the Second
Session of the Ninth National People's Congress March 15, 1999)
General Principles.
Article 13 Offer-Acceptance A contract is concluded by the exchange of an offer and an acceptance. Article 14 Definition of Offer An offer is a party's manifestation of intention to enter into a contract with the other party, which shall comply with the following:
An invitation to offer is a party's manifestation of intention to invite the other party to make an offer thereto. A delivered price list, announcement of auction, call for tender, prospectus, or commercial advertisement, etc. is an invitation to offer. A commercial advertisement is deemed an offer if its contents meet the requirements of an offer. Article 16 Effectiveness of Offer, Offer through Electronic Message An offer becomes effective when it reaches the offeree. When a contract is concluded by the exchange of electronic messages, if the recipient of an electronic message has designated a specific system to receive it, the time when the electronic message enters into such specific system is deemed its time of arrival; if no specific system has been designated, the time when the electronic message first enters into any of the recipient's systems is deemed its time of arrival. Article 17 Withdrawal of Offer An offer may be withdrawn. The notice of withdrawal shall reach the offeree before or at the same time as the offer. Article 18 Revocation of Offer An offer may be revoked. The notice of revocation shall reach the offeree before it has dispatched a notice of acceptance. Article 19 Irrevocable Offer An offer may not be revoked:
An offer is extinguished in any of the following circumstances:
An acceptance is the offeree's manifestation of intention to assent to an offer. Article 22 Mode of Acceptance; Acceptance by Conduct An acceptance shall be manifested by notification, except where it may be manifested by conduct in accordance with the relevant usage or as indicated in the offer. Article 23 Timely Dispatch of Acceptance An acceptance shall reach the offeror within the period prescribed in the offer. Where the offer does not prescribe a period for acceptance, the acceptance shall reach the offeror as follows:
Where an offer is made by a letter or a telegram, the period for acceptance commences on the date shown on the letter or the date on which the telegram is handed in for dispatch. If the letter does not specify a date, the period commences on the posting date stamped on the envelop. Where the offer is made through an instantaneous communication device such as telephone or facsimile, etc., the period for acceptance commences once the offer reaches the offeree. Articl 25 Contract Formed upon Effectiveness of Acceptanc A contract is formed once the acceptance becomes effective. Article 26 Effectiveness of Acceptanc A notice of acceptance becomes effective once it reaches the offeror. Where the acceptance does not require notification, it becomes effective once an act of acceptance is performed in accordance with the relevant usage or as required by the offer. Where a contract is concluded by the exchange of electronic messages, the time of arrival of the acceptance shall be governed by Paragraph 2 of Article 16 hereof. Article 27 Withdrawal of Acceptance An acceptance may be withdrawn. The notice of withdrawal shall reach the offeror before or at the same time as the acceptance. Article 28 Late Acceptance An acceptance dispatched by the offeree after expiration of the period for acceptance constitutes a new offer, unless the offeror timely advises the offeree that the acceptance is valid. Article 29 Delayed Transmission of Acceptance If the offeree dispatched its acceptance within the period for acceptance, and the acceptance, which would otherwise have reached the offeror in due time under normal circumstances, reaches the offeror after expiration of the period for acceptance due to any other reason, the acceptance is valid, unless the offeror timely advises the offeree that the acceptance has been rejected on grounds of the delay. Article 30 Acceptance Containing Material Change The terms of the acceptance shall be identical to those of the offer. A purported acceptance dispatched by the offeree which materially alters the terms of the offer constitutes a new offer. A change in the subject matter, quantity, quality, price or remuneration, time, place and method of performance, liabilities for breach of contract or method of dispute resolution is a material change to the terms of the offer. Article 31 Acceptance Containing Non-material Changes An acceptance containing nonmaterial changes to the terms of the offer is nevertheless valid and the terms thereof prevail as the terms of the contract, unless the offeror timely objects to such changes or the offer indicated that acceptance may not contain any change to the terms thereof. Article 32 Time of Formation in Case of Memorandum of Contract Where the parties enter into a contract by a memorandum of contract, the contract is formed when it is signed or sealed by the parties. Article 33 Time of Formation in Case of Letters or Electronic Messages; Confirmation Letter Where the parties enter into a contract by the exchange of letters or electronic messages, one party may require execution of a confirmation letter before the contract is formed. The contract is formed upon execution of the confirmation letter. Article 34 Place of Formation; Electronic Messages The place where the acceptance becomes effective is the place of formation of a contract. Where a contract is concluded by the exchange of electronic messages, the recipient's main place of business is the place of formation of the contract; if the recipient does not have a main place of business, its habitual residence is the place of formation of the contract. If the parties have agreed otherwise, such agreement prevails. Article 35 Place of Formation in Case of Memorandum of Contract Where a contract is concluded by a memorandum of contract, its place of formation is the place where the parties sign or seal the contract. Article 36 Effect of Failure to Conclude Contract in Writing Where a contract is to be concluded by a writing as required by the relevant law or administrative regulation or as agreed by the parties, if the parties failed to conclude the contract in writing but one party has performed its main obligation and the other party has accepted the performance, the contract is formed. Article 37 Effect of Failure to Sign in Case of Memorandum of Contract Where a contract is to be concluded by a memorandum of contract, if prior to signing or sealing of the contract, one party has performed its main obligation and the other party has accepted the performance, the contract is formed. Article 38 Contract under State Mandatory Plan Where the state has, in light of its requirements, issued a mandatory plan or state purchase order, the relevant legal persons and other organizations shall enter into a contract based on the rights and obligations of the parties prescribed by the relevant laws and administrative regulations. Article 39 Standard Terms; Duty to Call Attention Where a contract is concluded by way of standard terms, the party supplying the standard terms shall abide by the principle of fairness in prescribing the rights and obligations of the parties and shall, in a reasonable manner, call the other party's attention to the provision(s) whereby such party's liabilities are excluded or limited, and shall explain such provision(s) upon request by the other party. Standard terms are contract provisions which were prepared in advance by a party for repeated use, and which are not negotiated with the other party in the course of concluding the contract. Article 40 Invalidity of Certain Standard Terms A standard term is invalid if it falls into any of the circumstances set forth in Article 52 and Article 53 hereof, or if it excludes the liabilities of the party supplying such term, increases the liabilities of the other party, or deprives the other party of any of its material rights. Article 41 Dispute Concerning Construction of Standard Term In case of any dispute concerning the construction of a standard term, such term shall be interpreted in accordance with common sense. If the standard term is subject to two or more interpretations, it shall be interpreted against the party supplying it. If a discrepancy exists between the standard term and a non-standard term, the non-standard term prevails. Article 42 Pre-contract Liabilities Where in the course of concluding a contract, a party engaged in any of the following conducts, thereby causing loss to the other party, it shall be liable for damages:
A party may not disclose or improperly use any trade secret which it became aware of in the course of negotiating a contract, regardless of whether a contract is formed. If the party disclosed or improperly used such trade secret, thereby causing loss to the other party, it shall be liable for damages. Chapter Three Validity of Contracts Article 44 Effectiveness of Contract A lawfully formed contract becomes effective upon its formation. Where effectiveness of a contract is subject to any procedure such as approval or registration, etc. as required by a relevant law or administrative regulation, such provision applies. Article 45 Conditions Precedent; Conditions Subsequent; Improper Impairment or Facilitation The parties may prescribe that effectiveness of a contract be subject to certain conditions. A contract subject to a condition precedent becomes effective once such condition is satisfied. A contract subject to a condition subsequent is extinguished once such condition is satisfied. Where in order to further its own interests, a party improperly impaired the satisfaction of a condition, the condition is deemed to have been satisfied; where a party improperly facilitated the satisfaction of a condition, the condition is deemed not to have been satisfied. Article 46 Contract Term The parties may prescribe a term for a contract. A contract subject to a time of commencement becomes effective at such time. A contract subject to a time of expiration is extinguished at such time. Article 47 Contract by Person with Limited Capacity A contract concluded by a person with limited capacity for civil act is valid upon ratification by the legal agent thereof, provided that a contract from which such person accrues benefits only or the conclusion of which is appropriate for his age, intelligence or mental health does not require ratification by his legal agent. The other party may demand that the legal agent ratify the contract within one month. If the legal agent fails to manifest his intention, he is deemed to have declined to ratify the contract. Prior to ratification of the contract, the other party in good faith is entitled to cancel the contract. Cancellation shall be effected by notification. Article 48 Contract by Unauthorized Agent Absent ratification by the principal, a contract concluded on his behalf by a person who lacked agency authority, who acted beyond his agency authority or whose agency authority was extinguished is not binding upon the principal unless ratified by him, and the person performing such act is liable. The other party may demand that the principal ratify the contract within one month. Where the principal fails to manifest his intention, he is deemed to have declined to ratify the contract. Prior to ratification of the contract, the other party in good faith is entitled to cancel the contract. Cancellation shall be effected by notification. Article 49 Contract by Person with Apparent Agency Authority Where the person lacking agency authority, acting beyond his agency authority, or whose agency authority was extinguished concluded a contract in the name of the principal, if it was reasonable for the other party to believe that the person performing the act had agency authority, such act of agency is valid. Article 50 Contract Executed by Legal Representative Where the legal representative or the person-in-charge of a legal person or an organization of any other nature entered into a contract acting beyond his scope of authority, unless the other party knew or should have known that he was acting beyond his scope of authority, such act of representation is valid. Article 51 Unauthorized Disposal of Property through Contract Where a piece of property belonging to another person was disposed of by a person without the power to do so, such contract is nevertheless valid once the person with the power to its disposal has ratified the contract, or if the person lacking the power to dispose of it when the contract was concluded has subsequently acquired such power. Article 52 Invalidating Circumstances A contract is invalid in any of the following circumstances:
The following exculpatory provisions in a contract are invalid:
Either of the parties may petition the People's Court or an arbitration institution for amendment or cancellation of a contract if:
Where a party petitions for amendment of the contract, the People's Court or arbitration institution may not cancel the contract instead. Article 55 Extinguishment of Cancellation Right A party's cancellation right is extinguished in any of the following circumstances:
An invalid or canceled contract is not legally binding ab initio. Where a contract is partially invalid, and the validity of the remaining provisions thereof is not affected as a result, the remaining provisions are nevertheless valid. Article 57 Independence of Dispute Resolution Provision The invalidation, cancellation or discharge of a contract does not impair the validity of the contract provision concerning the method of dispute resolution, which exists independently in the contract. Article 58 Remedies in Case of Invalidation or Cancellation After a contract was invalidated or canceled, the parties shall make restitution of any property acquired thereunder; where restitution in kind is not possible or necessary, allowance shall be made in money based on the value of the property. The party at fault shall indemnify the other party for its loss sustained as a result. Where both parties were at fault, the parties shall bear their respective liabilities accordingly. Article 59 Remedies in Case of Collusion in Bad Faith Where the parties colluded in bad faith, thereby harming the interests of the state, the collective or a third person, any property acquired as a result shall be turned over to the state or be returned to the collective or the third person. Chapter Four Performance of Contracts Article 60 Full Performance; Performance in Good Faith The parties shall fully perform their respective obligations in accordance with the contract. The parties shall abide by the principle of good faith, and perform obligations such as notification, assistance, and confidentiality, etc. in light of the nature and purpose of the contract and in accordance with the relevant usage. Article 61 Indeterminate Terms; Supplementary Agreement If a term such as quality, price or remuneration, or place of performance etc. was not prescribed or clearly prescribed, after the contract has taken effect, the parties may supplement it through agreement; if the parties fail to reach a supplementary agreement, such term shall be determined in accordance with the relevant provisions of the contract or in accordance with the relevant usage. Article 62 Gap Filling Where a relevant term of the contract was not clearly prescribed, and cannot be determined in accordance with Article 61 hereof, one of the following provisions applies:
Article 63 Performance at Government Mandated Price Where a contract is to be implemented at a price mandated by the government or based on government issued pricing guidelines, if the government adjusts the price during the prescribed period of delivery, the contract price shall be the price at the time of delivery. Where a party delays in delivering the subject matter, the original price applies if the price has increased, and the new price applies if the price has decreased. Where a party delays in taking delivery or making payment, the new price applies if the price has increased, and the original price applies if the price has decreased. Article 64 Performance toward a Third Person Where the parties prescribed that the obligor render performance to a third person, if the obligor fails to render its performance to the third person, or rendered non-conforming performance, it shall be liable to the obligee for breach of contract. Article 65 Performance by a Third Person Where the parties prescribed that a third person render performance to the obligee, if the third person fails to perform or rendered non-conforming performance, the obligor shall be liable to the obligee for breach of contract. Article 66 Simultaneous Performance Where the parties owe performance toward each other and there is no order of performance, the parties shall perform simultaneously. Prior to performance by the other party, one party is entitled to reject its requirement for performance. If the other party rendered non-conforming performance, one party is entitled to reject its corresponding requirement for performance. Article 67 Consecutive Performance Where the parties owe performance toward each other and there is an order of performance, prior to performance by the party required to perform first, the party who is to perform subsequently is entitled to reject its requirement for performance. If the party required to perform first rendered non-conforming performance, the party who is to perform subsequently is entitled to reject its corresponding requirement for performance. Article 68 Right to Suspend Performance The party required to perform first may suspend its performance if it has conclusive evidence establishing that the other party is in any of the following circumstances:
Termination If a party suspends its performance in accordance with Article 68 hereof, it shall timely notify the other party. If the other party provides appropriate assurance for its performance, the party shall resume performance. After performance was suspended, if the other party fails to regain its ability to perform and fails to provide appropriate assurance within a reasonable time, the suspending party may terminate the contract. Article 70 Difficulty in Rendering Performance Due to Combination Where after effecting combination, division, or change of domicile, the obligee failed to notify the obligor, thereby making it difficult to render performance, the obligor may suspend its performance or place the subject matter in escrow. Article 71 Right to Reject Early Performance; Exception The obligee may reject the obligor's early performance, except where such early performance does not harm the obligee's interests. Any additional expense incurred by the obligee due to the obligor's early performance shall be borne by the obligor. Article 72 Right to Reject Partial Performance; Exception An obligee may reject the obligor's partial performance, except where such partial performance does not harm the obligee's interests. Any additional expense incurred by the obligee due to the obligor's partial performance shall be borne by the obligor. Article 73 Subrogation; Limitation Where the obligor delayed in exercising its creditor's right against a third person that was due, thereby harming the obligee, the obligee may petition the People's Court for subrogation, except where such creditor's right is exclusively personal to the obligor. The scope of subrogation is limited to the extent of the obligee's right to performance. The necessary expenses for subrogation by the obligee shall be borne by the obligor. Article 74 Obligee's Right to Cancel Manifestly Unreasonable Act by Obligor Where the obligor waived its creditor's right against a third person that was due or assigned its property without reward, thereby harming the obligee, the obligee may petition the People's Court for cancellation of the obligor's act. Where the obligor assigned its property at a low price which is manifestly unreasonable, thereby harming the obligee, and the assignee was aware of the situation, the obligee may also petition the People's Court for cancellation of the obligor's act. The scope of cancellation right is limited to the extent of the obligee's right to performance. The necessary expenses for the obligee's exercise of its cancellation right shall be borne by the obligor. Article 75 Time Limit for Exercising Obligee's Cancellation Right The obligee's cancellation right shall be exercised within one year, commencing on the date when it became, or should have become, aware of the cause for cancellation. Such cancellation right is extinguished if not exercised within five years, commencing on the date of occurrence of the obligor's act. Article 76 A Party's Internal Change Not Excuse for Nonperformance Once a contract becomes effective, a party may not refuse to perform its obligations thereunder on grounds of any change in its name or change of its legal representative, person in charge, or the person handling the contract. Chapter Five Amendment and Assignment of Contracts Article 77 Amendment; Amendment Subject to Approval A contract may be amended if the parties have so agreed. Where amendment to the contract is subject to any procedure such as approval or registration, etc. as required by a relevant law or administrative regulation, such provision applies. Article 78 Ambiguous Amendment Not Effective A contract term is construed not to have been amended if the parties failed to clearly prescribe the terms of the amendment. Article 79 Assignment of Rights; Exceptions The obligee may assign its rights under a contract in whole or in part to a third person, except where such assignment is prohibited:
Where the obligee assigns its rights, it shall notify the obligor. Such assignment is not binding upon the obligor if notice was not given. A notice of assignment of rights given by the obligee may not be revoked, except with the consent of the assignee. Article 81 Assumption of Incidental Right in Case of Assignment Where the obligee assigns a right, the assignee shall assume any incidental right associated with the obligee's right, except where such incidental right is exclusively personal to the obligee. Article 82 Assigned Rights Subject to Accrued Defenses of Obligor Upon receipt of the notice of assignment of the obligee's right, the obligor may, in respect of the assignee, avail itself of any defense it has against the assignor. Article 83 Availability of Set-off to Obligor Upon receipt of the notice of assignment of the obligee's right, if the obligor has any right to performance by the assignor which is due before or at the same time as the assigned obligee's right, the obligor may avail itself of any set-off against the assignee. Article 84 Delegation of Obligations Subject to Consent by Obligee Where the obligor delegates its obligations under a contract in whole or in part to a third person, such delegation is subject to consent by the obligee. Article 85 Availability of Defenses to New Obligor Where the obligor has delegated an obligation, the new obligor may avail itself of any of the original obligor's defenses against the obligee. Article 86 Assumption of Incidental Obligation in Case of Delegation Where the obligor delegates an obligation, the new obligor shall assume any incidental obligation associated with the main obligation, except where such incidental obligation is exclusively personal to the original obligor. Article 87 Assignment Subject to Approval Where the obligee's assignment of a right or the obligor's delegation of an obligation is subject to any procedure such as approval or registration, etc. as required by a relevant law or administrative regulation, such provision applies. Article 88 Concurrent Assignment and Delegation Upon consent by the other party, one party may concurrently assign its rights and delegate its obligations under a contract to a third person. Article 89 Provisions Applicable to Concurrent Assignment Where a party concurrently assigns its rights and delegates its obligations, the provisions in Article 79, Articles 81 to 83, and Articles 85 to 87 apply. Article 90 Effect of Combination or Division of Contract Party Where a party has effected combination after it entered into a contract, the legal person or organization of any other nature resulting from the combination assumes the rights and obligations thereunder. Where a party has effected division after it entered into a contract, unless otherwise agreed by the obligee and obligor thereunder, the legal persons or other organizations resulting from the division jointly and severally assume the rights and obligations thereunder. Chapter Six Discharge of Contractual Rights and Obligations Article 91 Conditions for Discharge The rights and obligations under a contract are discharged in any of the following circumstances:
Upon discharge of the rights and obligations under a contract, the parties shall abide by the principle of good faith and perform obligations such as notification, assistance and confidentiality, etc. in accordance with the relevant usage. Article 93 Termination by Agreement; Termination Right The parties may terminate a contract if they have so agreed. The parties may prescribe a condition under which one party is entitled to terminate the contract. Upon satisfaction of the condition for termination of the contract, the party with the termination right may terminate the contract. Article 94 Legally Prescribed Conditions Giving Rise to Termination Right The parties may terminate a contract if:
Where the law or the parties prescribe a period for exercising termination right, failure by a party to exercise it at the end of the period shall extinguish such right. Where neither the law nor the parties prescribe a period for exercising termination right, failure by a party to exercise it within a reasonable time after receiving demand from the other party shall extinguish such right. Article 96 Termination by Notification; Termination Subject to Approval The party availing itself of termination of a contract in accordance with Paragraph 2 of Article 93 and Article 94 hereof shall notify the other party. The contract is terminated when the notice reaches the other party. If the other party objects to the termination, the terminating party may petition the People's Court or an arbitration institution to affirm the validity of the termination. Where termination of a contract is subject to any procedure such as approval or registration, etc. as required by a relevant law or administrative regulation, such provision applies. Article 97 Remedies in Case of Termination Upon termination of a contract, a performance which has not been rendered is discharged; if a performance has been rendered, a party may, in light of the degree of performance and the nature of the contract, require the other party to restore the subject matter to its original condition or otherwise remedy the situation, and is entitled to claim damages. Article 98 Settlement and Winding-up Provisions Not Affected by Discharge Discharge of contractual rights and obligations does not affect the validity of contract provisions concerning settlement of account and winding-up. Article 99 Set-off; Set-off Not Subject to Condition Where each party owes performance to the other party that is due, and the subject matters of the obligations are identical in type and quality, either party may set off its obligation against the obligation of the other party, except where set-off is prohibited by law or in light of the nature of the contract. The party availing itself of set-off shall notify the other party. The notice becomes effective when it reaches the other party. Set-off may not be subject to any condition or time limit. Article 100 Set-off Involving Non-identical Subject Matters Where each party owes performance to the other party that is due, and the subject matters of the obligations are not identical in type and quality, the parties may effect set-off by mutual agreement. Article 101 Conditions Giving Rise to Right to Place Subject Matter in Escrow Where any of the following circumstances makes it difficult to render performance, the obligor may place the subject matter in escrow:
Article 102 Duty to Notify in Case of Escrow After placing the subject matter in escrow, the obligor shall timely notify the obligee or his heir or guardian, except where the obligee cannot be located. Article 103 Risk of Loss; Fruits of Subject Matter Accrued during Escrow Once the subject matter is in escrow, the risk of its damage or loss is borne by the obligee. The fruits of the subject matter accrued during escrow belong to the obligee. Escrow expenses shall be borne by the obligee. Article 104 Taking Delivery of Subject Matter in Escrow Conditional upon Performance; Time Limit The obligee may take delivery of the subject matter in escrow at any time, provided that if the obligee owes performance toward the obligor that is due, prior to the obligee's performance or provision of assurance, the escrow agent shall reject the obligee's attempt to take delivery of the subject matter in escrow as required by the obligor. The right of the obligee to take delivery of the subject matter in escrow is extinguished if not exercised within five years, commencing on the date when the subject matter was placed in escrow. After deduction of escrow expenses, the subject matter in escrow shall be turned over to the state. Article 105 Release Where the obligee released the obligor from performance in part or in whole, the rights and obligations under the contract are discharged in part or in whole. Article106 Merger of Rights and Obligations If the same party assumed all the rights and obligations under a contract, the rights and obligations thereunder are discharged, except where the contract involves the interests of a third person. Chapter Seven Liabilities for Breach of Contracts Article 107 Types of Liabilities for Breach If a party fails to perform its obligations under a contract, or rendered non-conforming performance, it shall bear the liabilities for breach of contract by specific performance, cure of non-conforming performance or payment of damages, etc. Article 108 Anticipatory Breach Where one party expressly states or indicates by its conduct that it will not perform its obligations under a contract, the other party may hold it liable for breach of contract before the time of performance. Article 108 Anticipatory Breach If a party fails to pay the price or remuneration, the other party may require payment thereof. Article 108 Anticipatory Breach Where a party fails to perform, or rendered non-conforming performance of, a non-monetary obligation, the other party may require performance, except where: (i) performance is impossible in law or in fact; (ii) the subject matter of the obligation does not lend itself to enforcement by specific performance or the cost of performance is excessive; (iii) the obligee does not require performance within a reasonable time. Article 108 Anticipatory Breach Where a performance does not meet the prescribed quality requirements, the breaching party shall be liable for breach in accordance with the contract. Where the liabilities for breach were not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, the aggrieved party may, by reasonable election in light of the nature of the subject matter and the degree of loss, require the other party to assume liabilities for breach by way of repair, replacement, remaking, acceptance of returned goods, or reduction in price or remuneration, etc. Article 112 Liability for Damages Notwithstanding Subsequent Performance or Cure of Non-conforming Performance Where a party failed to perform or rendered non-conforming performance, if notwithstanding its subsequent performance or cure of non-conforming performance, the other party has sustained other loss, the breaching party shall pay damages. Article b113 Calculation of Damages; Damages to Consumer Where a party failed to perform or rendered non-conforming performance, thereby causing loss to the other party, the amount of damages payable shall be equivalent to the other party's loss resulting from the breach, including any benefit that may be accrued from performance of the contract, provided that the amount shall not exceed the likely loss resulting from the breach which was foreseen or should have been foreseen by the breaching party at the time of conclusion of the contract. Where a merchant engages in any fraudulent activity while supplying goods or services to a consumer, it is liable for damages in accordance with the Law of the People's Republic of China on Protection of Consumer Rights. Article 114 Liquidated Damages; Adjustment; Continuing Performance Notwithstanding Payment of Liquidated Damages The parties may prescribe that if one party breaches the contract, it will pay a certain sum of liquidated damages to the other party in light of the degree of breach, or prescribe a method for calculation of damages for the loss resulting from a party's breach. Where the amount of liquidated damages prescribed is below the loss resulting from the breach, a party may petition the People's Court or an arbitration institution to increase the amount; where the amount of liquidated damages prescribed exceeds the loss resulting from the breach, a party may petition the People's Court or an arbitration institution to decrease the amount as appropriate. Where the parties prescribed liquidated damages for delayed performance, the breaching party shall, in addition to payment of the liquidated damages, render performance. Article 115 Deposit The parties may prescribe that a party will give a deposit to the other party as assurance for the obligee's right to performance in accordance with the Security Law of the People's Republic of China. Upon performance by the obligor, the deposit shall be set off against the price or refunded to the obligor. If the party giving the deposit failed to perform its obligations under the contract, it is not entitled to claim refund of the deposit; where the party receiving the deposit failed to perform its obligations under the contract, it shall return to the other party twice the amount of the deposit. Article 116 Election Between Deposit or Liquidated Damages Clauses If the parties prescribed payment of both liquidated damages and a deposit, in case of breach by a party, the other party may elect in alternative to apply the liquidated damages clause or the deposit clause. Article 117 Force Majeure A party who was unable to perform a contract due to force majeure is exempted from liability in part or in whole in light of the impact of the event of force majeure, except otherwise provided by law. Where an event of force majeure occurred after the party's delay in performance, it is not exempted from liability. For purposes of this Law, force majeure means any objective circumstance which is unforeseeable, unavoidable and insurmountable. Article 118 Duty to Notify in Case of Force Majeure If a party is unable to perform a contract due to force majeure, it shall timely notify the other party so as to mitigate the loss that may be caused to the other party, and shall provide proof of force majeure within a reasonable time. Article 119 Non-Breaching Party's Duty to Mitigate Loss in Case of Breach Where a party breached the contract, the other party shall take the appropriate measures to prevent further loss; where the other party sustained further loss due to its failure to take the appropriate measures, it may not claim damages for such further loss. Any reasonable expense incurred by the other party in preventing further loss shall be borne by the breaching party. Article 120 Bilateral Breach In case of bilateral breach, the parties shall assume their respective liabilities accordingly. Article 121 Breach Due to Act of Third Person Where a party's breach was attributable to a third person, it shall nevertheless be liable to the other party for breach. Any dispute between the party and such third person shall be resolved in accordance with the law or the agreement between the parties. Article 122 Election of Remedy in Tort or in Contract Where a party's breach harmed the personal or property interests of the other party, the aggrieved party is entitled to elect to hold the party liable for breach of contract in accordance herewith, or hold the party liable for tort in accordance with any other relevant law. Chapter Eight Other Provisions Article 123 Applicability of Other Laws Where another law provides otherwise in respect of a certain contract, such provisions prevail. Article 124 Applicability to Non-categorized Contracts Where there is no express provision in the Specific Provisions hereof or any other law concerning a certain contract, the provisions in the General Principles hereof apply, and reference may be made to the provisions in the Specific Provisions hereof or any other law applicable to a contract which is most similar to such contract. Article 125 Contract Interpretation; Language Versions In case of any dispute between the parties concerning the construction of a contract term, the true meaning thereof shall be determined according to the words and sentences used in the contract, the relevant provisions and the purpose of the contract, and in accordance with the relevant usage and the principle of good faith. Where a contract was executed in two or more languages and it provides that all versions are equally authentic, the words and sentences in each version are construed to have the same meaning. In case of any discrepancy in the words or sentences used in the different language versions, they shall be interpreted in light of the purpose of the contract. Article 126 Choice of Law in Foreign-related Contracts; Contracts Subject to Mandatory Application of Chinese Law Parties to a foreign related contract may select the applicable law for resolution of a contractual dispute, except otherwise provided by law. Where parties to the foreign related contract failed to select the applicable law, the contract shall be governed by the law of the country with the closest connection thereto. For a Sino-foreign Equity Joint Venture Enterprise Contract, Sino-foreign Cooperative Joint Venture Contract, or a Contract for Sino-foreign Joint Exploration and Development of Natural Resources which is performed within the territory of the People's Republic of China, the law of the People's Republic of China applies. Article 127 Role of Regulatory Authorities Within the scope of their respective duties, the authority for the administration of industry and commerce and other relevant authorities shall, in accordance with the relevant laws and administrative regulations, be responsible for monitoring and dealing with any illegal act which, through the conclusion of a contract, harms the state interests or the public interests; where such act constitutes a crime, criminal liability shall be imposed in accordance with the law. Article 128 Dispute Resolution The parties may resolve a contractual dispute through settlement or mediation. Where the parties do not wish to, or are unable to, resolve such dispute through settlement or mediation, the dispute may be submitted to the relevant arbitration institution for arbitration in accordance with the arbitration agreement between the parties. Parties to a foreign related contract may apply to a Chinese arbitration institution or another arbitration institution for arbitration. Where the parties did not conclude an arbitration agreement, or the arbitration agreement is invalid, either party may bring a suit to the People's Court. The parties shall perform any judgment, arbitral award or mediation agreement which has taken legal effect; if a party refuses to perform, the other party may apply to the People's Court for enforcement. Article 129 Time Limit for Action For a dispute arising from a contract for the international sale of goods or a technology import or export contract, the time limit for bringing a suit or applying for arbitration is four years, commencing on the date when the party knew or should have known that its rights were harmed. For a dispute arising from any other type of contract, the time limit for bringing a suit or applying for arbitration shall be governed by the relevant law. SPECIFIC PROVISIONS Chapter Nine Sales Contracts Article 130 Definition of Sales Contract A sales contract is a contract whereby the seller transfers title to the subject matter to the buyer, who pays the price. Article 130 Definition of Sales Contract In addition to the terms set forth in Article 12 hereof, a sales contract may include terms such as packing method, inspection standard and inspection method, method of settlement of account, and the language versions of the contract and the authenticity thereof, etc. Article 132 Title or Disposal Power; Prohibition of or Restriction on Transfer The seller shall have title to, or the power to dispose of, the subject matter for sale. Where a law or administrative regulation prohibits or restricts the transfer of the subject matter, such provision applies. Article 133 Passing of Title Title to the subject matter passes at the time of its delivery, except otherwise provided by law or agreed by the parties. Article 134 Conditional Sale The parties may prescribe in the sales contract that title to the subject matter remain in the seller until the buyer has paid the price or has performed other obligations. Article 135 Seller's Obligations with Respect to Title Transfer The seller shall perform the obligations of delivering to the buyer the subject matter or the document for taking delivery thereof, as well as transferring title to the subject matter. Article 136 Delivery of Related Materials by Seller In addition to the document for taking delivery, the seller shall deliver to the buyer documents and materials related to the subject matter in accordance with the contract or in accordance with the relevant usage. Article 137 Sales Involving Intellectual Property In a sale of any subject matter which contains intellectual property such as computer software, etc., the intellectual property in the subject matter does not vest in the buyer, except otherwise provided by law or agreed by the parties. Article 138 Time of Delivery The seller shall deliver the subject matter at the prescribed time. Where the contract prescribes a period during which delivery is to take place, the seller may deliver at any time during the delivery period. Article 139 AbSense of Provision for Time of Delivery Where the time for delivery of the subject matter was not prescribed or clearly prescribed, Article 61 and Item 4 of Article 62 apply. Article 140 Time of Delivery of Subject Matter Already in Buyer's Possession Where the subject matter was in buyer's possession prior to conclusion of the contract, the time when the contract becomes effective is the time of delivery. Article 141 AbSense of Provision for Place of Delivery The seller shall deliver the subject matter at the prescribed place. Where the place of delivery was not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, the following provisions apply:
The risk of damage to or loss of the subject matter is borne by the seller prior to delivery, and by the buyer after delivery, except otherwise provided by law or agreed by the parties. Article 143 Risk Allocation in Case of Delayed Delivery Where the subject matter was not delivered at the prescribed time due to any reason attributable to the buyer, the buyer shall bear the risk of damage to or loss of the subject matter as from the date of breach. Article 144 Risk Allocation for Subject Matter in Transit Where the seller sells the subject matter which has been delivered to a carrier for transportation and is in transit, unless otherwise agreed by the parties, the risk of damage or loss is borne by the buyer as from the time of formation of the contract. Article 145 Passing of Risk in Case of Seller Arranged Carriage Where the place of delivery was not prescribed or clearly prescribed, if the subject matter needs carriage as provided in Item (i) of Paragraph 2 of Article 141, the risk of damage to or loss of the subject matter is borne by the buyer as from the time the seller delivers the subject matter to the first carrier. Article 146 Risk Allocation in Case of Delay in Taking Delivery Where the seller placed the subject matter at the place of delivery in accordance with the contract or in accordance with Item (ii) of Paragraph 2 of Article 141 hereof and the buyer fails to take delivery in breach of the contract, the risk of damage to or loss of the subject matter is borne by the buyer as from the date of breach. Article 147 Passing of Risk Notwithstanding Failure to Deliver Documents Failure by the seller to deliver the documents and materials relating to the subject matter in accordance with the contract does not affect passing of the risk of damage to or loss of the subject matter. Article 148 Rejection on Grounds of Quality Non-compliance; Risk Allocation in Case of Rejection Where the purpose of the contract is frustrated due to failure of the subject matter to meet the quality requirements, the buyer may reject the subject matter or terminate the contract. If the buyer rejects the subject matter or terminates the contract, the risk of damage to or loss of the subject matter is borne by the seller. Article 149 Right to Remedy Notwithstanding Assumption of Risk Buyer's assumption of the risk of damage to or loss of the subject matter does not prejudice its right to hold the seller liable for breach of contract if the seller rendered non-conforming performance. Article 150 Third Party Claim Warranty The seller is obligated to warrant that the buyer will be free from any third party claim against it in respect of the subject matter delivered, except otherwise provided by law. Article 151 Buyer's Knowledge Releasing Third Party Claim Warranty Where the buyer knew or should have known that the subject matter was subject to a third party claim at the time of conclusion of the contract, the seller does not assume the obligation prescribed in Article 150 hereof. Article 152 Right to Withhold Payment in Case of Third Party Claim Where the buyer has conclusive evidence establishing that a third person may make a claim on the subject matter, it may withhold payment of the corresponding price, except where the seller has provided appropriate assurance. Article 153 Quality Specifications The seller shall deliver the subject matter in compliance with the prescribed quality requirements. Where the seller gave quality specifications for the subject matter, the subject matter delivered shall comply with the quality requirements set forth therein. Article 154 AbSense of Prescribed Quality Requirements Where the quality requirements for the subject matter were not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, Item (i) of Article 62 hereof applies. Article 155 Quality Non-compliance Giving Rise to Claims If the subject matter delivered by the seller fails to comply with the quality requirements, the buyer may hold the seller liable for breach of contract in accordance with Article 111 hereof. Article 156 Packing Method The seller shall deliver the subject matter packed in the prescribed manner. Where a packing method was not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, the subject matter shall be packed in a customary manner, or, if there is no customary manner, in a manner adequate to protect the subject matter. Article 157 Inspection upon Receipt of Subject Matter Upon receipt of the subject matter, the buyer shall inspect it within the prescribed inspection period. Where no inspection period was prescribed, the buyer shall timely inspect the subject matter. Article 158 Consequence of Failure to Inspect; Exceptions Where an inspection period was prescribed, the buyer shall notify the seller of any non-compliance in quantity or quality of the subject matter within such inspection period. Where the buyer delayed in notifying the seller, the quantity or quality of the subject matter is deemed to comply with the contract. Where no inspection period was prescribed, the buyer shall notify the seller within a reasonable period, commencing on the date when the buyer discovered or should have discovered the quantity or quality non-compliance. If the buyer fails to notify within a reasonable period or fails to notify within 2 years, commencing on the date when it received the subject matter, the quantity or quality of the subject matter is deemed to comply with the contract, except that if there is a warranty period in respect of the subject matter, the warranty period applies and supersedes such two year period. Where the seller knew or should have known the non-compliance of the subject matter, the buyer is not subject to the time limits for notification prescribed in the previous two paragraphs. Article 159 AbSense of Price Provision The buyer shall pay the price in the prescribed amount. Where the price was not prescribed or clearly prescribed, the provisions of Article 61 and Item of Article 62 apply. Article 160 Place of Payment The buyer shall pay the price at the prescribed place. Where the place of payment was not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, the buyer shall make payment at the seller's place of business, provided that if the parties agreed that payment shall be conditional upon delivery of the subject matter or the document for taking delivery thereof, payment shall be made at the place where the subject matter, or the document for taking delivery thereof, is delivered. Article 161 Time of Payment The buyer shall pay the price at the prescribed time. Where the time for payment was not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, the buyer shall make payment at the same time it receives the subject matter or the document for taking delivery thereof. Article 162 Buyer's Option in Case Delivered Quantity Exceeds Prescribed Amount Where the seller delivered the subject matter in a quantity greater than that prescribed in the contract, the buyer may accept or reject the excess quantity. Where the buyer accepts the excess quantity, it shall pay the price based on the contract rate; where the buyer rejects the excess quantity, it shall timely notify the seller. Article 163 Title to Fruits Before and After Delivery The fruits of the subject matter belong to the seller if accrued before delivery, and to the buyer if accrued after delivery. Article 164 Effect of Termination on Grounds of Non-compliance of Main or Ancillary Components Where a contract is terminated due to non-compliance of any main component of the subject matter, the effect of termination extends to the ancillary components. Where the contract is terminated due to non-compliance of any ancillary component of the subject matter, the effect of termination does not extend to the main components. Article 165 Termination in Part or in Whole Where the subject matter comprises of a number of components, one of which does not comply with the contract, the buyer may terminate the portion of the contract in respect of such component, provided that if severance of such component with the other components will significantly diminish the value of the subject matter, the party may terminate the contract in respect of such number of components. Article 166 Effect of Termination in Case of Delivery in Installments Where the seller is to deliver the subject matter in installments, if the seller's failure to deliver or non-conforming delivery of one installment frustrates the purpose of the contract in respect of such installment, the buyer may terminate the portion of the contract in respect thereof. If the seller's failure to deliver or non-conforming delivery of one installment frustrates the purpose of the contract in respect of all subsequent installments notwithstanding their delivery, the buyer may terminate the portion of the contract in respect of such installment as well as any subsequent installment. If the buyer is to terminate the portion of the contract in respect of a particular installment which is interdependent with all other installments, it may terminate the contract in respect of all delivered and undelivered installments. Article 167 Termination in Case of Sale by Installment Payment In a sale by installment payment, where the buyer failed to make payments as they became due, if the delinquent amount has reached one fifth of the total price, the seller may require payment of the full price from the buyer or terminate the contract. If the seller terminates the contract, it may require the buyer to pay a fee for its use of the subject matter. Article 168 Quality Provisions in Case of Sale by Sample In a sale by sample, the parties shall place the sample under seal, and may specify the quality of the sample. The subject matter delivered by the seller shall comply with the sample as well as the quality specifications. Article 169 Latent Defect in Sample In a sale by sample, if the buyer was not aware of a latent defect in the sample, the subject matter delivered by the seller shall nevertheless comply with the normal quality standard for a like item, even though the subject matter delivered complies with the sample. Article 170 Sale by Trial In a sale by trial, the parties may prescribe the trial period. Where a trial period was not prescribed or clearly prescribed, and cannot be determined in accordance with Article 61 hereof, it shall be determined by the seller. Article 171 Purchase or Rejection During Trial Period In a sale by trial, the buyer may either purchase or reject the subject matter during the trial period. At the end of the trial period, the buyer is deemed to have made the purchase if it fails to manifest its intention to purchase or reject the subject matter. Article 172 Sale by Tender Governed by Relevant Laws In a sale by tender, matters such as the rights and obligations of the parties and the tendering procedure, etc. are governed by the relevant laws and administrative regulations. Article 173 Sale by Auction Governed by Relevant Laws In a sale by auction, matters such as the rights and obligations of the parties and the auctioning procedure, etc. are governed by the relevant laws and administrative regulations. Article 174 General Applicability to Contracts for Value For any other contract for value, if the law provides for such contract, such provisions apply; absent any such provision, reference shall be made to the relevant provisions governing sales contracts. Article 175 Applicability to Barter Transaction Where the parties agree on a barter transaction involving transfer of title to the subject matters, such transaction shall be governed by reference to the relevant provisions governing sales contracts. Chapter Ten Contracts for Supply of Power, Water, Gas , Or Heat Article 176 Definition of Power Supply Contract A power supply contract is a contract whereby the power supplier supplies power to the power customer, who pays the electricity charge. Article 177 Terms of Power Supply Contract A power supply contract includes terms such as the method, quality, and time of power supply, and the capacity, location and nature of power use, and the metering method, electricity rate, the method of settlement of electricity charge, and the responsibility for maintenance of the power supply and power use facilities, etc. Article 178 Place of Performance of Power Supply Contract The place of performance of a power supply contract shall be the place prescribed by the parties, and if not prescribed or clearly prescribed, the place of performance shall be the boundary where ownership of the power supply facilities is divided. Article 179 Obligations of Power Supplier The power supplier shall supply power in a safe manner in accordance with the power supply quality standard mandated by the state and in accordance with the contract. Where the power supplier failed to supply power in a safe manner in accordance with the power supply quality standard mandated by the state and in accordance with the contract, thereby causing loss to the power customer, it shall be liable for damages. Article 180 Obligation to Notify in Case of Scheduled Suspension Where the power supplier needs to suspend power supply due to reasons such as periodical maintenance or provisional maintenance of the power supply facilities, legally required power rationing, or illegal use of power by the power customer, etc., it shall notify the power customer in advance in accordance with the relevant stipulations of the state. Where the power supplier suspended power supply without notifying the power customer in advance, thereby causing loss to the power customer, it shall be liable for damages. Article 181 Obligation to Make Emergency Repair in Case of Power Outage Where a power outage is caused by reasons such as natural disasters, etc., the power supplier shall timely make emergency repair in accordance with the relevant stipulations of the state. Where the power supplier failed to timely make emergency repair, thereby causing loss to the power customer, it shall be liable for damages. Article 182 Payment of Electricity Charge The power customer shall timely pay the electricity charge in accordance with the relevant stipulations of the state and in accordance with the contract. Where the power customer delayed in paying the electricity charge, it shall pay liquidated damages in accordance with the contract. Where the power customer failed to pay the electricity charge and liquidated damages within a reasonable time after receiving demand for payment, the power supplier may shut off the power supply in accordance with the procedure prescribed by the state. Article 183 Power Customer's Obligation of Proper Use The power customer shall use power in a safe manner in accordance with the relevant stipulations of the state and in accordance with the contract. Where the power customer failed to use power in a safe manner in accordance with the relevant stipulations of the state and in accordance with the contract, thereby causing loss to the power supplier, it shall be liable for damages. Article 184 Applicability to Contract for Supply of Water, Gas or Heat A contract for the supply of water, gas or heat shall be governed by reference to the relevant provisions governing power supply contracts. Chapter Eleven Gift Contracts Article 185 Definition of Gift Contract A gift contract is a contract whereby the donor conveys his property to the donee without reward and the donee manifests his acceptance of the gift. Article 186 Revocation Prior to Transfer of Rights; Exception Prior to the transfer of rights to the gift property, the donor may revoke the gift. The previous paragraph does not apply to any gift contract the nature of which serves public interests or fulfills a moral obligation, such as disaster relief, poverty relief, etc., or any gift contract which has been notarized. Article 187 Observance of Conveyance Procedure Where conveyance of the gift property is subject to any procedure such as registration, etc. under the law, the relevant procedure shall be carried out. Article 188 Donee's Right to Require Delivery in Certain Cases In the case of a gift contract the nature of which serves public interests or fulfills a moral obligation, such as disaster relief, poverty relief, etc., or a gift contract which has been notarized, if the donor fails to deliver the gift property, the donee may require delivery. Article 189 Liability of Donor for Misconduct or Gross Negligence Where the gift property is damaged or lost due to any intentional misconduct or gross negligence of the donor, he shall be liable for damages. Article 190 Gift May Be Subject to Obligations A gift may be subject to obligations. Where the gift is subject to obligations, the donee shall perform his obligations in accordance with the contract. Article 191 Donor Not Liable for Defect; Exceptions The donor is not liable for any defect in the gift property. Where the gift is subject to obligations, and the gift property is defective, the donor has the same warranty obligations as a seller to the extent of the prescribed obligations. Where the donor intentionally omitted to inform the donee of the defect or warranted the abSense of any defect, thereby causing loss to the donee, he shall be liable for damages. Article 192 Circumstances Giving Rise to Revocation Right Where the donee is in any of the following circumstances, the donor may revoke the gift:
Article 193 Exercise of Revocation Right by Heir Where the donor is deceased or incapacitated due to the donee's illegal act, his heir or legal agent may revoke the gift. The heir or legal agent of the donor shall exercise the right of revocation within six months after he became, or should have become, aware of the cause for revocation. Article 194 Remedies in Case of Revocation Upon revocation of the gift, the person with the revocation right may claim restitution of the gift property from the donee. Article 195 Economic Hardship Releases Gift Obligation If the donor's economic situation has deteriorated significantly, thereby seriously impacting on his business operation or family life, he may be released from the gift obligations. Chapter Twelve Contracts for Loan of Money Article 196 Definition of Contract for Loan of Money A contract for loan of money is a contract whereby the borrower borrows a sum of money from the lender, and returns the sum borrowed and pays interest thereon at the prescribed time. Article 197 Writing Requirement; Terms A contract for loan of money shall be in writing, except where the loan is between natural persons who have agreed otherwise. A contract for loan of money includes terms such as the loan's type, currency, purpose, amount, interest rate, term and method of repayment, etc. Article 198 Assurance by Borrower In entering into a contract for loan of money, the lend |