Chapter 20 Chapter 19 Sales Signing and Contract Management
Sales activities are the most active and extensive form of economic activities in the market, so sales contracts are also very commonly used in daily life.However, in real life, the incidents of using contracts to commit fraud continue to increase, and the fraudulent means are also various. The scammers carefully weave one trap after another, making it difficult for the contract signer to guard against it. If you are not careful, you will fall into the contract. The trap, leading to high debts of enterprises or individuals, even on the verge of bankruptcy.
Therefore, it is particularly important for sales managers to understand the relevant knowledge of sales contracts, know how to see through fraud in signing contracts, avoid unnecessary losses, and protect their legitimate rights and interests.Obviously, a sales contract is a sales contract in contract law.This chapter will introduce the relevant knowledge of the sales contract based on the relevant provisions of the contract law, and discuss the problems that are likely to occur when signing the sales contract and how to prevent them.
A sales contract is a contract in which both parties agree that one party delivers the subject matter and transfers the ownership of the subject matter to the other party, and the other party receives the subject matter and pays the price.Among them, the party that delivers the subject matter and transfers its ownership is called the seller, which is customarily called Party A in contract practice, and the party that receives the subject matter and pays the price is called the buyer. It is called Party B above.The parties to the sale may be natural persons, legal persons or other organizations.
Sales is the most common form of commodity exchange, and sales contracts are the norms of sales behavior. The equality and voluntariness of the contract coincides with the principle of equality, voluntariness and mutual benefit in sales behavior in the commodity economy.Therefore, the sales contract is the most effective and common way to regulate the sales behavior, and it is also the legal basis of the market economy.
1. The sales contract is a paid contract
The purpose of the seller's delivery of the subject matter and transfer of its ownership to the buyer is to obtain the corresponding price paid by the buyer; They are mutual consideration and have obvious compensatory nature.This is the basic feature of a sales contract, and it is also a distinctive sign that distinguishes a sales contract from a gift contract.
2. The sales contract is a bilateral contract
The rights and obligations of the two parties to a sales contract correspond to each other as conditions. The rights of one party are exactly the obligations of the other party, and the obligations of one party are exactly the rights of the other party.The right of the seller is to obtain the corresponding price, which is the obligation of the buyer; it is the obligation of the seller to deliver the subject matter and transfer its ownership, which is the right of the buyer. Therefore, the sales contract is a typical bilateral contract.
3. The sales contract is a promise contract
Generally, when the parties reach an agreement on the purchase and sale, the sales contract is established, and the actual delivery of the subject matter or the price is not the prerequisite for its establishment.This is clearly stipulated in the laws of some countries. For example, the French Civil Code stipulates that when the parties agree on the subject matter and its price, even if the subject matter has not been delivered and the price has not been paid, the sale is established.However, the parties to the sales contract may also make such an agreement in the contract that the sales contract shall be established when the subject matter or the price is delivered.The sales contract at this time is the practical contract or the contract of essentials.
4. The sales contract is an unnecessary contract
The establishment of a sales contract does not stipulate that it must conform to a certain form. It can be a mandatory contract or an optional contract, such as a written form. As long as the two parties agree, the contract will be declared established.Therefore, the sales contract is a non-required contract, and it is not necessary to perform a certain form.That is to say, the sales contract can be in oral form, written form or other legal forms.Written form refers to contracts, letters and data messages (including telegrams, telexes, facsimiles, electronic data interchange and e-mails) and other forms that can tangibly express the contents contained therein.
1. General sales contract and special sales contract
General sales contracts refer to sales contracts carried out under normal circumstances, and most of the sales contracts in daily life are general sales contracts.
Special sales contracts may include the following types: one is a sales contract with buy-back clauses, that is, the seller and the buyer agree that under certain conditions or within a time limit, the seller can buy back the subject matter, and the buyer must sell it.The second is the sales contract with the retention of ownership clause, that is, within a certain period of time, although the subject matter has been delivered by the seller to the buyer, the seller still holds the ownership of the subject matter.The third is the sales contract of installment payment, that is, the price is not paid in one lump sum, but in several installments.The fourth is the sample sales contract, that is, the two parties determine a sample, the quality of the sample is the quality of the subject matter, and the future performance is based on the sample.The fifth is a continuous sales contract, that is, the buyer continuously purchases the same type of subject matter from the same seller.
2. Non-competitive sales contracts and competitive sales contracts
A non-competitive sales contract refers to an agreement reached between the two parties through the stages of offer and acceptance.A competitive sales contract refers to a contract in which the buyer concludes a transaction with the seller through competition, such as the way of bidding and auction.
3. Instant sale contract and non-instant sale contract
An instant sale contract refers to a contract in which money is paid and goods are paid at that time.Non-immediate sales contract means that payment and delivery will not be made at that time, but payment and delivery will be made at a certain period in the future.
4. Sales contracts for specific items and sales contracts for generic items
A contract for buying and selling a specific thing is a sales contract for a specific thing, and a contract for buying and selling a kind of thing is a sales contract for a kind of thing.Specific objects can include two types: one is that the item itself is unique, such as a painting by a famous painter;
5. Sales contracts for general procedures and sales contracts for special procedures
Sales contracts with special procedures are the above-mentioned contracts concluded through auction and bidding, and also include contracts that must go through specific procedures such as approval and registration before they can become effective.
6. Industrial and mining product sales contracts and agricultural and sideline products sales contracts
Industrial and mining product sales contract refers to the clear mutual rights and obligations reached by the buyer and the seller for a certain amount of industrial product production materials and industrial product living materials.Contracts for the sale and purchase of industrial and mining products involve a wide range of areas and a large amount, and have an important impact on economic life.
The agricultural and sideline products sales contract refers to the agreement between the buyer and the seller to sell the agricultural and sideline products to the buyer according to the consensus reached by both parties, and the buyer will pay the agreed price after accepting the agricultural and sideline products.
1. The parties to the sales contract
The parties to a sales contract include the seller and the buyer.
For buyers and sellers, according to the provisions of the contract law, they must have the corresponding capacity for civil conduct.In addition, according to the basic principles of civil law, the provisions of other laws, and the nature of specific sales contracts, certain persons with special identities shall not be the buyer in a specific sales contract.For example, the guardian shall not be the buyer of the ward's property, and the auction company and its staff shall not purchase the property entrusted for auction, etc.
As for the seller, in addition to having the corresponding capacity for civil conduct, according to the provisions of the contract law, it should be the owner of the subject matter of the sales contract or other persons with the right to dispose.This provision is an advocacy provision, which shows that the seller's qualifications should meet the special restrictions of the law.The owner is a person who has the right to possess, use, benefit from, and dispose of his own property according to the law; the person with the right to dispose is a person who is authorized by the owner or based on the law to sell the property of others.The persons who have the right of disposition mainly include: the mortgagee and the pledgee, the lien holder, the legal priority holder, the brokerage person, the management right holder, the people's court, etc. in the current legislation of our country.
If the seller who concludes the sales contract is neither the owner of the subject matter nor the person with the right to dispose of the subject matter, the contract between the seller and the buyer is a sales contract for the sale of another person's property.The civil law of our country adopts the real right change model of creditor's right formalism, and the buyer's acquisition of the ownership of the subject matter is the legal effect of the seller's performance of contractual obligations, not the legal effect of the sales contract.The failure of the buyer to obtain the ownership of the subject matter is due to the failure of the seller to perform its contractual obligations, which does not affect the validity of the sales contract. Therefore, a sales contract for the sale of another person's property should also be recognized as a valid contract.
2. The subject matter of the sales contract
Regarding the scope of the subject matter of the sales contract, the regulations of various countries and regions are not consistent.The commercial sales laws of countries with common law systems generally limit it to the sale of goods, that is, the sale of things (articles 2 to 105 of the American Consent Commercial Code).In the Japanese Civil Code and the Civil Code of my country's Taiwan region, the subject matter of the sales contract includes both physical objects and other property rights (Article 555 of the Civil Code of Japan and Article 345 of the Civil Code of Taiwan Region of my country).In my country's contract law, the subject matter of a sales contract shall be recognized as a real object according to the provisions of Article 130 of the "Contract Law".
The subject matter of a sales contract can be something that exists in reality or something that will be produced in the future; it can be a specific thing or an unspecified thing.Of course, if an unspecified item is the subject matter of a sales contract, the subject matter should also be specified when the contract is performed.
If the subject matter of the sales contract is prohibited circulation, the sales contract shall be deemed as an invalid contract (Article 52, item 5 of the "Contract Law" of our country); if the subject matter of the sales contract is restricted circulation, the validity of the sales contract shall be In terms of difference: if the parties to the sales contract have no possibility of obtaining the operating qualification of the subject matter, the sales contract should be deemed as an invalid contract due to the impossibility of the subject matter; , the contract is not yet fully effective (paragraph 2, Article 44 of my country's "Contract Law"); the parties to the contract are obliged to go through the examination and approval procedures to facilitate the full entry into force of the sales contract.If the parties fail to fulfill their obligations to go through the examination and approval procedures, resulting in the failure of the sales contract to take full effect, they shall bear the liability for contract negligence.
The content of the sales contract is mainly agreed upon by the parties. In addition to the subject matter, quantity and quality, price, performance period, place of performance, performance method, liability for breach of contract, and methods of dispute resolution, the parties to the sales contract may also agree on packaging methods, inspection standards, etc. Agreements shall be made on content such as payment methods, settlement methods, and the applicable text and effectiveness of the contract.
In a sales contract, the subject matter is the object to which the rights and obligations of the parties to the sales contract are directed.If the sales contract does not specify the subject matter, it will lose its purpose and meaning.Therefore, the subject matter is a necessary clause of the sales contract.The subject clause must clearly state the name of the subject matter; quantity is one of the specific conditions for determining the subject matter of a sales contract, and is also a necessary clause for the establishment of a sales contract.
Under normal circumstances, the lack of terms such as quality, time limit for performance, place and method, price, liability for breach of contract, packaging method, inspection standards and methods, settlement method, language used in the contract and its validity does not affect the establishment of the sales contract. It can be determined through supplementary determination methods recognized by the contract law.For example, if the parties have not agreed on the quality clause or the agreement is not clear, it can be determined in accordance with Article 61 and Item 1 of Article 62 of my country's "Contract Law".
The effectiveness of a sales contract refers to the legal effect of a sales contract that has come into force.In a broad sense, the validity of a sales contract includes both the external validity and the internal validity of the sales contract.The core of the external effectiveness of a sales contract is the inviolability of contract claims, which is mainly adjusted through the provisions of the Tort Law (Article 106, Paragraph 2 of the General Principles of Civil Law).The internal effectiveness of the sales contract is based on the content of the sales contract, which is mainly manifested in the rights and obligations enjoyed by both the seller and the buyer.In the narrow sense, the effectiveness of the sales contract only refers to the internal effectiveness of the sales contract.The internal effectiveness of a sales contract can be reflected by the contractual obligations borne by both parties.
1. Obligations of the seller
(1) Delivery of the subject matter and transfer of ownership of the subject matter to the buyer.Delivering the subject matter and transferring the ownership of the subject matter to the buyer is the main contractual obligation of the seller, which consists of two aspects:
One is delivery of the subject matter.In a sales contract, the seller shall deliver the subject matter of the sales contract to the buyer.The method of delivering the subject matter may be actual delivery, or conceptual delivery such as simple delivery, possession modification, and instruction delivery.The seller shall meet the following requirements when delivering the subject matter:
When the seller delivers the subject matter, if the subject matter has accessories, unless otherwise agreed by the parties, the seller shall also deliver the accessories.The seller's obligation to deliver the subject matter may be performed personally or by a third party.When a third party delivers on behalf of the seller, the third party shall not be liable for the breach of the contract in case of breach of contract during the delivery, and the seller shall still bear the liability for breach of contract.
The seller shall deliver the subject matter within the agreed time limit.If a delivery period is agreed upon, the seller may deliver at any time within the delivery period, but shall notify the buyer before delivery.If the seller delivers the subject matter in advance, it shall obtain the consent of the buyer, otherwise the buyer has the right to refuse, except that the seller's early delivery does not damage the interests of the buyer (Article 71, Paragraph 1 of the Contract Law) ).The seller shall bear the additional expenses for the advance delivery to the buyer (Article 71, Paragraph 2 of the Contract Law).If the parties have not agreed on the time limit for the delivery of the subject matter or the agreement is not clear, they may supplement it by agreement; Preparation time.
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 supplement it by agreement; if a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or trading practices; if it is still uncertain, the following two provisions shall apply: The buyer shall hand over the subject matter to the first carrier for delivery to the buyer.Second, 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; The place of business of the seller at the time of conclusion of the contract delivers the subject matter (Article 141 of the Contract Law).
The seller shall deliver the subject matter in accordance with the agreed quantity.If the seller delivers more bids, the buyer may accept or refuse to accept the excess.If the buyer accepts the overpaid part, the price shall be paid according to the price in the original contract; if the seller delivers less of the subject matter, the buyer may refuse to accept it unless it does not harm the interests of the buyer.If the buyer refuses to accept the subject matter, it shall promptly notify the seller.If the buyer fails to notify, it shall be liable for the resulting damages.However, if the quantity of the subject matter delivered by the seller is within a reasonable pound difference or tail difference, it shall be deemed that the delivered quantity meets the agreed standard.If it is agreed in the contract to deliver in batches, the seller shall deliver in batches according to the agreed batch.If the seller fails to deliver in accordance with the agreed time and quantity, it shall be liable for breach of contract for each improper delivery.
The seller shall deliver the subject matter according to the agreed packaging method.If there is no agreement on the packaging method or the agreement is not clear, it can be supplemented by agreement; if a supplementary agreement cannot be reached, it should be determined in accordance with the relevant terms of the contract or transaction practices; The method of packaging to protect the subject matter (Article 156 of the Contract Law).
The second is to transfer the ownership of the subject matter to the buyer.Obtaining the ownership of the subject matter is the main transaction purpose of the buyer. Therefore, transferring the ownership of the subject matter to the buyer is a major obligation of the seller.Transferring the ownership of the subject matter is to realize the transfer of the ownership of the subject matter on the basis of delivering the subject matter, so that the buyer can obtain the ownership of the subject matter.Pursuant to Article 133 of the Contract Law, the ownership of the subject matter shall be transferred upon delivery of the subject matter, unless otherwise stipulated by law or otherwise agreed upon by the parties.This shows that the method of transfer of ownership of the subject matter can vary:
As far as chattels are concerned, unless otherwise specified by law or otherwise agreed by the parties, ownership is transferred upon delivery.This shows that the contract law establishes the real right change mode of the formalism of creditor's right with regard to the transfer of movable property ownership through legally arbitrarily regulated.The so-called other agreement of the parties includes that the parties may agree that the seller shall deliver the subject matter first, and if the buyer fails to perform the payment or other obligations, the ownership of the subject matter shall still belong to the seller, so as to guarantee the performance of the buyer's contractual obligations, This is the so-called retention of title regime (Article 134 of the Contract Law).For special types of movable property such as ships, aircraft, vehicles, etc., the ownership is generally transferred from the time of delivery, but if the registration procedures have not been completed in accordance with the law, the transfer of ownership has no effect against third parties.
The transfer of real estate ownership must be registered in accordance with the law.If the registration is not completed, the ownership of the subject matter will not be transferred even though the contract has come into force.This shows that the contract law has established the real right change mode of the formalism of creditor's rights through the mandatory provisions of the law on the transfer of real estate ownership.
According to Article 137 of the "Contract Law", when selling subject matter such as computer software with intellectual property rights, unless otherwise stipulated by law or otherwise agreed by the parties, the intellectual property rights of the subject matter are not accompanied by the ownership of the subject matter. and transferred to the buyer.
(2) Defect guarantee obligation of the subject matter.According to Article 153 of the Contract Law, the seller shall deliver the subject matter in accordance with the agreed quality requirements.If the seller provides a description on the quality of the subject matter, the delivered subject matter shall meet the quality requirements of the description.This obligation is called the defect guarantee obligation of the subject matter.The seller's obligation to guarantee the defect of the subject matter is determined by the compensation nature of the sales contract.In my country's contract law, the guarantee obligation for the defect of the subject matter is expressed as the quality guarantee obligation, that is, the seller should guarantee that the subject matter delivered to the buyer meets the quality standards stipulated in the contract or determined by law.Therefore, determining the quality standard of the subject matter is the prerequisite for judging whether the seller fully fulfills the obligation.In a sales contract, if the parties have not agreed on the quality standard of the subject matter or the agreement is not clear, they may supplement it by agreement; if a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or trading practices; if it still cannot be determined, the seller shall deliver the subject matter, The general standard that something should have or the specific standard that the thing should have in order to fulfill the contract.
If the subject matter delivered by the seller does not meet the quality standards, it is a violation of the guarantee obligation for the defect of the thing, and it belongs to the assumption of the guarantee liability for the defect of the thing in traditional civil law.In my country's contract law, due to the principle of liability for breach of contract, the principle of strict liability is generally adopted (especially for commercial contracts), and the distinction between liability for breach of contract and liability for defect guarantees in traditional civil law has lost its basis.Therefore, the seller should bear the liability for breach of contract in accordance with the agreement of the parties.If there is no agreement on the liability for breach of contract or the agreement is not clear, nor can a supplementary agreement be reached or cannot be determined according to the relevant terms of the contract and trading practices, the injured party may reasonably choose to request repair, replacement, or return of the goods based on the nature of the subject matter and the size of the loss. Or reduce the price (Article 155 of the Contract Law).
The buyer requires the seller to bear the liability for breach of contract for the breach of the guarantee obligation for the defect of the object, unless the law provides otherwise, on the condition that the buyer notifies the seller of the unqualified quality of the subject matter in a timely manner (Article 158 of the Contract Law).If the buyer knew or should have known that the quality of the subject matter was unqualified when the contract was concluded, the buyer shall not claim against the seller the liability for breach of contract for breach of the guarantee obligation for defects of the matter.
The buyer shall pay the price according to the agreed time.If the payment time is not stipulated in the contract or the agreement is not clear, the parties may agree to supplement it; if no agreement can be reached, it shall be determined in accordance with the relevant terms of the contract or transaction practices; payment at the same time as the certificate (Article 161 of the Contract Law).
2. Obligations of the buyer
(1) Pay the price.The price is the consideration for the transfer of ownership of the subject matter, therefore, paying the price is the main obligation of the buyer.
The buyer shall pay the price according to the agreed amount.If there is no agreement on the price in the contract or the agreement is not clear, the parties may agree to supplement it; if no supplementary agreement can be reached, it shall be determined in accordance with the relevant terms of the contract or trading practices; If the price is set by the government or guided by the government, it shall be performed in accordance with the regulations (Article 159 of the Contract Law).If government pricing or government guidance price is implemented, when the government price is adjusted within the delivery period agreed in the contract, the price at the time of delivery shall be used for pricing.If the subject matter is overdue, the original price will be used if the price rises; and the new price will be used if the price falls.If the subject matter is withdrawn or the payment is overdue, if the price rises, the new price will be used; if the price falls, the original price will be used (Article 63 of the Contract Law).
The buyer shall pay the price at the agreed place.If the place of payment is not stipulated in the contract or the agreement is not clear, the parties may agree to supplement it; if no supplementary agreement can be reached, it shall be determined in accordance with the relevant terms of the contract or transaction practices; if it still cannot be determined, the buyer shall pay at the place of business of the seller If it is agreed that the payment of the price is conditional on the delivery of the subject matter or the delivery of the subject matter documents, payment shall be made at the place where the subject matter is delivered or the documents for taking the subject matter are located (Article 160 of the Contract Law).
The buyer shall pay the price according to the agreed time.If the payment time is not stipulated in the contract or the agreement is not clear, the parties may agree to supplement it; if a supplementary agreement cannot be reached, it shall be determined in accordance with the relevant terms of the contract or transaction practices; Simultaneous payment of documents (Article 161 of the Contract Law).
(2) Receive the subject matter.The buyer has the obligation to accept the subject matter in accordance with the contract or transaction practice.The buyer has the right to refuse to accept the subject matter that the seller fails to deliver in accordance with the conditions stipulated in the contract, such as over-delivery, early delivery, or defects in the delivered subject matter.
(3) Timely inspect the subject matter delivered by the seller.When the buyer receives the subject matter, he has the obligation to inspect it in time.If the parties agree on an inspection period, the buyer shall, within the agreed period, notify the seller of the failure of the quantity or quality of the subject matter to meet the agreement. If the buyer fails to notify, it shall be deemed that the quantity or quality of the subject matter conforms to the agreement.If the parties have not agreed on a period, the buyer shall notify the seller within a reasonable period of time when it discovers or should have discovered that the quantity or quality of the subject matter does not conform to the agreement.If the buyer fails to notify within a reasonable period or fails to notify the seller within 2 years from the date of receipt of the subject matter, it shall be deemed that the quantity or quality of the subject matter meets the agreement; however, if there is a quality guarantee period for the subject matter, the quality guarantee period shall apply , the 2-year rule does not apply (Articles 157 and 158 of the Contract Law).
If within the above-mentioned period, the buyer fails to notify that the quantity and quality of the subject matter does not conform to the agreement, after the notification period expires, the quantity and quality of the subject matter is deemed to be in compliance with the agreement, but the seller knows or should know that the subject matter provided does not meet the agreement. Except as agreed.
Timely inspection of the subject matter delivered by the seller is a false obligation of the buyer.The breach of this obligation does not lead to the assumption of liability for breach of contract, but the resulting losses shall be borne by the buyer.
(4) Temporary storage and emergency disposal of objects refused to be accepted.Under certain circumstances, although the buyer may express his intention to refuse to accept the subject matter delivered by the seller, he has the obligation to temporarily store and dispose of the subject matter in an emergency.This obligation is an incidental obligation borne by the buyer.
The storage obligation when the buyer refuses to accept can only be established when the following conditions are met:
First of all, it must be delivered in a different place. When the goods arrive at the place of delivery, the buyer discovers that the quality of the subject matter is defective and expresses his intention to refuse to accept it.
Secondly, the seller has no agent at the place where the subject matter is accepted for delivery, that is, the subject matter is legally in a state of no management.
Thirdly, general items are temporarily kept by the buyer, but when the seller receives the buyer's refusal notice, the seller should immediately return the subject matter at its own expense or make other disposals, and pay the buyer's storage fee.
Finally, for perishable items that are not easy to keep, such as fruits and vegetables, the buyer can sell them urgently, but the proceeds from the sale must be returned to the seller after deducting the sale fee.
When the buyer refuses to accept the delivery, the act of keeping and urgently selling the subject matter for the seller must be based on good intentions and must not expand the loss of the seller.The seller also cannot be exempted from the buyer's custody or urgent sale under the above circumstances.
Before signing a contract, it is very important to check whether the signing partner has the main qualifications to sign the contract, but this issue is often overlooked when signing the contract, which is mainly reflected in the following aspects:
(1) When signing the contract, not paying attention to reviewing the business license of the party concerned.Whether one of the parties has the qualifications to sign the contract, whether the business license of the party has expired, whether it has undergone an annual review, whether it has been revoked, etc., signed a contract in a hurry without careful review.In this way, it is easy to cause the signed contract to have no legal effect or it is difficult to investigate the party's breach of contract liability in the event of a dispute.
(2) Failure to pay attention to reviewing the production or business capacity and behavioral capacity of one of the parties, causing the content of the signed contract to fail to comply with the provisions of laws or administrative regulations.For example, the production and operation of some products must be specially licensed or approved by the relevant state departments to obtain the production and operation qualifications before they can have the operation ability stipulated by law; otherwise, the contract will be invalid due to the lack of this ability.
(3) Not paying attention to reviewing the qualifications of the legal representative.For example, do not pay attention to comparing the legal representative qualification certificate and business license submitted by the other party, and sign a contract with the other party without knowing whether the legal representative is in office or whether the official seal of the legal person is authentic.In real life, there are often criminals who attempt to defraud by contracts using stolen official seals or invalid seals to sign contracts.
(4) Not paying attention to examining the qualifications and authority of the entrusted agent.For example, whether the power of attorney held by the entrusting agent is true, whether the authorized limit is consistent with the authority stipulated in the contract, whether the agency right has expired or been cancelled, etc., if you do not pay attention to these issues, it is easy for criminals to take advantage of them. It is easy to cause the signed contract to be invalid.
On May 28, 2000, M County Building Material Factory and D City Construction Engineering Team signed a contract for the purchase and sale of aluminum alloy windows.The contract stipulates: M County Building Materials Factory supplies 250 pieces of aluminum alloy windows of five different models and specifications to the construction engineering team of D City, with a total amount of 250,000 yuan. The engineering team, the construction engineering team of City D shall pay the payment within 15 days after receiving the goods.In addition, the contract also stipulates the terms of product quality, acceptance method, packaging and transportation method. On July 18, 2000, after receiving the aluminum alloy windows from M county building material factory, the construction engineering team of D city immediately issued a receipt to the building material factory for receiving 250 pieces of aluminum alloy windows, and indicated that the total amount was 25 ten thousand yuan.Afterwards, the construction engineering team of City D only paid 130,000 yuan to the building materials factory in County M on July 29, 2000, leaving the balance of 120,000 yuan unpaid.At the same time, the construction team of city D entrusted all the received aluminum alloy windows to C city trading co. All aluminum alloy windows entrusted by the Municipal Construction Engineering Team to be sold shall be retained.
In order to recover the payment, the M County Building Material Factory appealed to the People's Court of D City, demanding that the Construction Engineering Team of D City pay the money it owed and compensate the bank interest; the Construction Engineering Team of D City argued: "The aluminum alloy windows we received It has been detained by the city C trading company, and the M county building materials factory should demand money from the C city trading company, and we are not responsible for the payment.”
The People's Court of D City found out after the trial that: Although the construction engineering team of D City has the "Enterprise Legal Person Business License", it does not have the business scope of distributing aluminum alloy windows. It also found out that the M County Building Material Factory signed the products without national standards as the first and second level standards when signing the contract, and believed that the M County Building Material Factory should also bear secondary responsibility for its own wrong behavior.The court made the following judgment:
(1) The construction engineering team of D city returns the owed payment of 120,000 yuan to M county building material factory.
(2) The interest loss of the 120,000 yuan payment in this case is 1723.3 yuan, 1206.3 yuan shall be borne by the construction engineering team of D city, and 517 yuan shall be borne by the M county building materials factory.The litigation fee in this case is 5,500 yuan, of which 3,850 yuan shall be borne by the construction engineering team of D city, and 1,650 yuan shall be borne by the M county building materials factory.
Therefore, before signing the contract, we must do a good job of reviewing the contracting partners.The review work before signing the contract mainly includes these four aspects: the qualification review of the subject, the credit review, the performance ability review and the qualification review of the contract undertaker.
(1) Subject qualification review.Before signing a sales contract, it is necessary to carefully examine whether the subject of the contract is qualified.If you want to check the business license of the unit, you should pay attention to whether the business license is a counterfeit or stolen product, whether it is issued by the administrative department for industry and commerce, and whether it has the behavioral capacity and rights capacity for production and operation.According to the provisions of my country's "General Principles of Civil Law" and other civil laws, a legal person shall be established according to law. First, it must have a name, organizational structure and articles of association; second, it must have a fixed business place and necessary facilities; The amount of funds and the number of employees commensurate with the scale of operation and service; fourth, the ability to operate independently, be responsible for its own profits and losses, and independently bear civil liabilities; fifth, it must be approved and registered by the competent authority.When reviewing the civil capacity of a legal person, it is necessary to see whether the above-mentioned five legally established elements are complete.
(2) Credit review.In practice, the qualification of the subject of the contract does not mean that they will be able to perform their obligations in full accordance with the contract after signing the sales contract.If the other party's contractual obligations cannot be fully and correctly fulfilled, the parties will not be able to achieve the purpose of signing the sales contract.Especially when one party uses fraudulent means to sign a contract with the other party, the defrauded party often suffers losses.In order to reduce unnecessary losses, before signing a sales contract, it is necessary to investigate the business reputation of the other party.Parties with better reputations are generally able to consciously abide by the contract, while parties with poor reputations often break their promises.Through credit review, choose the party with better reputation as the contracting partner.
(3) Examination of performance ability.Whether it is signing a sales contract with a citizen or a legal person; whether it is signing a contract for the sale of industrial and mining products or a contract for the sale of agricultural and sideline products, it is necessary to investigate the ability of the other party to perform the contract; otherwise, it is easy to be deceived if you listen to one-sided words.
As far as the seller is concerned, according to the contract of sale, he should bear the obligation to deliver the goods and the obligation to guarantee the quality of the goods.The review of the seller's ability to perform the contract can be carried out by reviewing the other party's business scope and mode of operation, or on-site inspection.
As far as the buyer is concerned, according to the stipulations in the sales contract, the main obligation is to pay for the goods.To examine the buyer's ability to perform the contract, the buyer's registered capital and property owned by it can be examined.
For citizens (including individual industrial and commercial households and rural contracted business households), they can investigate the person's ability to perform contracts through their unit and their relatives, neighbors, classmates, friends and other acquaintances.
For a legal person, it is possible to find out whether it has the ability to perform the contract through various channels such as the local industrial and commercial administrative department and the higher-level competent department.
(4) Qualification examination of the contract undertaker.Individual industrial and commercial households, rural contracted operations, and citizens generally sign sales contracts by themselves, while the business activities of legal persons are usually carried out by legal representatives, and sometimes other people are entrusted to handle the specific matters of signing sales contracts.Whether the undertaker of the sales contract is a legal representative, a person entrusted by him, or an individual citizen, the legal consequences of signing the contract shall be borne by the contracting unit or individual.This gives some criminals an opportunity to fraudulently use or embezzle the names of other units or individuals to sign sales contracts, causing unnecessary losses to relevant units or individuals.Therefore, before signing the sales contract, it is necessary to review the qualifications of the contract undertaker.
The qualification examination of the contract undertaker mainly includes the examination of the legal representative, the examination of the staff of the legal person and the qualification examination of the entrusted agent.In the signing of sales contracts, lawbreakers often pretend to be agents to sign contracts and damage the interests of the parties to the contract. Therefore, if the sales contract is signed by an entrusted agent, it is necessary to focus on examining the entrusted agent's signing qualifications.According to national law, an entrusted agent who signs a sales contract on behalf of an agent must meet three conditions, so the entrusted agent must be examined in three aspects: examine its entrustment certificate, examine its agency authority, and examine whether it is based on the principal's authority when signing the contract. in name.
In a sales contract, the product name is one of the most important clauses in the contract.产品的品名与产品的质量是密切相关连的，产品因其品质而得名，产品品名反映了质量，产品品名不同，其品质也是不同的。
在签订买卖合同时，尤其是农副产品买卖合同，有的当事人往往不注意准确表述产品的名称。有时使用当地的俗称，发生纠纷时不好区别。例如，马鲛鱼，沿海很多地方称之为“黑鱼”，而内地有些城市却另有叫法；香菇，有干有鲜，水果有鲜有冻等，不作具体准确的表述，在发生纠纷时，会出现难以说清的局面；在工矿产品买卖合同中，有的当事人不注意填写产品的用途；某一些医药、化工试剂、食品等由于用途不一，质量要求不同，不写清楚可能导致在履行中发生纠纷；同一产品由于用途不同，生产的工艺和品位不一样，如果不标明，可能会造成供货不符合使用要求，或者给卖方提供粗劣产品的机会。此外，有的当事人还可能出现不注意写明产品的识别标志的情况。如产品名称不注明牌号、商标以及品种规格、型号、等级、花色等只写简称，不注明全称或随意省略。这些都会导致在发生合同纠纷的时候无从下手。因此，在签订买卖合同时一定要写清楚产品的名称。
产品的技术标准是合同中对产品的质量要求，根据技术标准，卖方安排产品的生产，买方在接受产品时对产品进行验收，在发生纠纷时判定产品质量的责任归属。但是，在签订合同的时候，合同双方当事人往往不注意写明产品的技术标准和质量要求，由于对技术质量标准不作具体规定，经常在履行中引起很多纠纷。在现实生活中，许多不法分子都是利用买卖合同中质量条款的漏洞，以达到骗取对方财物的目的。
某手推车制造厂与某施工队于2000年4月签订了一份购销工用手推车100辆的合同。双方在合同中对标的、数量、规格、价款、履行期限、提货方式和地点都作了约定，但对质量要求和违约责任没有做具体要求。手推车制造厂按合同条款规定于同年6月1日将其中60辆手推车交付施工队，施工队试用后发现组装车子的材料有问题，且焊接处又有开焊现象，便将其中的20辆手推车退给手推车制造厂。7月1日，当推车制造厂通知施工队将余下的车子提走时，施工队以手推车质量不合格为由拒绝受领，双方发生纠纷，诉至法院。
在上面的案例中，买卖双方所签订合同显然是条款不完备。虽然在本案中发生纠纷是由于手推车制造厂生产的手推车质量不合格造成的，但是合同中无质量条款也是发生纠纷的另一个重要原因；如果买卖双方当初签订合同时明确约定手推车的具体质量标准，那么手推车制造厂也会严格履行其义务，发生纠纷之后也便于协商解决。
在签订买卖合同的时候，必须在合同中把产品的技术标准明确规定下来。另外，在合同中要明确规定卖方对产品质量负责的条件和期限。对成套产品，在合同中要明确规定附件的质量要求。对某些必须安装运转后才能发现内在质量缺陷的产品，除主管部门另有规定者外，合同中应具体规定提出质量异议的条件和时间。实行抽样检验质量的产品，所采用的抽样标准或抽检方法比例也应该在合同中注明。同时要认真审核合同中的质量条款。审查质量条款要看产品的质量标准是否模糊不清，有无缺陷和错误。质量标准分为强制性质量标准和推荐性标准。保障人体健康、人身财产安全的标准和法律法规规定强制执行的标准是强制性标准，其他标准为推荐性标准。在家用电器、饮料酒类等产品的买卖合同中，必须审查有无规定强制性的质量标准。在有些农副产品的买卖合同中，如果质量标准以样品为准，也要在合同中注明，并且把样品保存好。这样既可以避免产生欺诈现象，又可以在发生合同纠纷时便于解决。
产品的数量是卖方应当交付给买方产品的总量，也包括在连续供货合同中每一批的数量，产品的数量是买卖合同中最核心、最基本的条款，没有产品的数量就无法进行交易。
在实践中，订立数量条款时，一般存在以下几个问题。
1.约定的数量不符合实际
标的数量是决定合同总金额的主要因素之一，数量越多，总金额就越大；相反，数量越少，金额也越少。对于合同当事人来说，在订立合同时要确定数量，数量的多少，除了要考虑价格或酬金的因素外，还要根据各自的需要与可能，并不是数量越多越好。买卖合同的标的数量，卖方要考虑自己的供货能力，如生产经营规模或货源有没有保证等多方面因素，而买方则应考虑该批货物的销路以及货款的支付能力等。在实践中，有的当事人不注意合同约定的数量是否符合实际，盲目签订数量很大的合同，脱离了自己的需要与可能，造成不良后果。一方面，合同标的数量超过了自有资金或已有资源，又没有正当渠道筹集到资金和货源保证，这样的合同就会因当事人一方无实际履行能力而被确认为无效合同；另一方面，即使合同有效，但所订的数量与自己履行能力不相适应，在合同规定的履行期限内，卖方不能按期供货或买方收了货付不了款，也会构成违约，要承担违约责任，达不到签合同的预期效果。
近年来，在经济领域发生的诈骗犯罪当中，经常出现通过签订数量大、金额大的合同，骗取大笔预付定金、预付货款，这是需要引起注意的。
2.数量不具体
数量是衡量标的大小的计量尺度，必须是具体的、明确的。
在实践中，约定数量不符合要求的情况时有发生，一般有以下几种情形：
(1)采用模糊的提法，如“按库存数量交货”、“买方要多少交多少”，这样的约定是不确定的，容易发生扯皮现象。
(2)数字误写。如有的合同本来数量为1000箱，却误写为10000箱，如果这种情况没有其他条款或证据表明，在发生纠纷的时候会出现有口难辩的情况。
3.数量条款不使用法定的计量单位
计量单位是标的数量的构成要件，只有数字而没有计量单位，没有办法确定数量。在实践中，有很多合同纠纷是由于合同中使用不符合国家规定的计量标准和方法，或者含混抽象的计量概念。
某贸易公司与实业公司于2000年6月5日经双方充分商讨，签订了旧西服买卖合同。合同规定：由某贸易公司向某实业公司销售旧西服，数量200包，质量为八成新，无破口，每包500元，共计价款100000元。交货日期为2001年8月8日前分两批交清。交货地点为XX车站，双方交接顺利，实业公司在7月20日通过银行汇款50000元。同年12月5日，贸易公司第二批货到，实业公司在验收时发现第二批西服不但达不到合同中规定的八成新的标准，而且每包都比原来第一批所交的包小。为此，实业公司中拒绝接收货物，双方协商未决，诉至法庭。
在上面的案例中在数量条款中，“包”不是一个符合国家规定的计量单位。因为包有大有小，容量不一，在质量条款中，双方的协定只简单笼统地写了“八成新，无破口”，对于一般的质量要求也没做规定。这样的合同很明显是存在漏洞的。
在签订合同的时候要注意审查数量条款。审查数量条款，主要审查数字、计量单位、计量方法。要审查数字是否准确，计量单位是否属于国家法定计量单位，计量器具是否经过合格检定。对于有些产品根据自身的性质要审查在数量条款中有无规定正负尾差，合理磅差、在途自然增减量和超欠幅度。对于机电设备，要审查在数量条款中有无规定主机的辅件、附件、配套产品、易损耗备品、配件和安装修理工具。对于成套产品，要审查有没有写清楚成套供应范围，对方是否提供了成套供应清单。
出卖人包装标的物的方式是否适当引起纠纷，其解决的关键在于确定该标的物应当采用的包装方式的标准。如果在合同中约定了采用不适合于标的物的包装方式，则在出卖人依约定进行包装并发运后，即使标的物因包装不当而受损坏，买受人也不能要求出卖人就此负责，因此对买受人而言，很有必须在买卖合同中约定合适的包装条款。
买卖合同标的物的包装与运输的关系紧密。在异地交货的情况下，必然涉及标的物的运输问题，而在运输过程中，如果标的物包装方式不够妥当，则难免会造成标的物受损。但也有些货物不需要包装，如矿石、煤炭、木材等往往散装即可；车辆、船舶、飞机等通常也可以裸装运输。而食品、易燃易爆物品或家用电器等类别的物品则需要采用与其性质、特点相适应的包装方式。此外，运输方式不同，对包装方式的要求也有所不同。陆路、水路或航空运输各自都对承载货物应采用的包装方式有不完全一致的要求，货物的包装也应符合相应的要求条件。
买卖合同当事人在约定包装方式时，采用的运输方式是一个重要因素，同时，还应注意根据运输距离的远近，在途日期的长短，标的物本身的特点和性质等诸因素确定包装方式。在一般情况下，在订立包装条款时，还应该考虑到包装材料和包装标志、包装牢固程度等问题。根据不同的标的物的性质和不同运输方式的要求，应采用不同的包装材料。根据正常装卸和运输的需要，还应注意其外部的包装标志，即在包装外部用醒目的字体标明标的物的名称、规格、目的地和装卸注意事项等，以使承运人在运送过程中根据货物运输的需要适当的注意，避免误装误卸或者损坏标的物。
买卖合同的标的物毁损或灭失事关重大，其风险负担的确定往往是实践中双方当事人争议的焦点，因此应注意以我国有关法律就标的物风险负担所作的原则性规定和特定情形下确定风险负担的具体规定为依据，确定标的物风险转移的具体时间。
我国《民法通则》第72条第2款规定：“按照合同或其他合法方式取得财产的，财产所有权自财产交付时转移……”《合同法》第142条也规定：“标的物毁损、灭失的风险，在标的物交付之前由出卖人承担，交付之后由买受人承担，但法律另有规定或者当事人另有约定的除外。”可见，我国立法对买卖合同标的物的风险转移是以“交付转移风险”为一般原则的。标的物的风险负担，在标的物交付前由出卖人承担，交付后由买受人承担。但在法律另有规定或当事人另有约定时，则应依该种约定来确风险负担的转移时间。
《合同法》第142条的规定应属任意性规范，即除法律另有规定之外，买卖合同当事人可以自行经协商对风险负担的转移另作约定。法律另有规定或当事人另有约定包括两种情形：一种情形是在标的物交付之前，风险负担即由买受人承担，如在标的物交付给买受人之前，其毁损、灭失的风险即由买受人承担；另一种情形是，在买卖合同标的物交付之后一定时间内出卖人仍然承担风险。
例如，某甲公司向某电脑公司乙购买电脑50台，双方在合同中约定，使用乙电脑公司提供的杀毒软件，甲公司在电脑交付1年后因“感染病毒”而造成的损失由乙电脑公司承担。这样，乙电脑公司作为出卖人，在标的物电脑交付1年后，仍应承担该批电脑因病毒侵袭而造成损失的风险。
产品的交货期限就是卖方交付产品，买方接受产品的期限。实践中出卖人与买受人常常围绕出卖人是否构成逾期交付发生争议。因此，产品的交(提)货期限必须在合同中明确规定，不能言词模糊，避免产生纠纷。同时应当注意在当事人约定交付期限或交付期间的情况下，该期限如何确定或该期间如何计算。
W市机床厂与W市钢窗厂于2001年12月签订一份购销合同，合同规定：机床厂为钢窗厂制造直径250高率焊管机1台，价格34万元；2002年5月底交货，预付货款30万元，提货时付4万元；产品质量实行三包，安装机器时机床厂帮助调试等。合同签订后，钢窗厂预付机床厂货款30万元，机床厂自2002年7月上旬陆续交货，到同年11月20日，主机和辅机等配套设备全部交完。钢窗厂安装时，因牛皮垫件不够用，于2003年3月下旬和4月7日，两次去机床厂取牛皮垫件700多个。机床厂多次催促钢窗厂给付余欠货款，钢窗厂以机床厂延期交货138天造成严重损失为由，拒绝给付。
机床厂于2003年9月诉诸W市中级人民法院，要求钢窗厂偿付货款不足部分和银行利息，机床厂承认未按合同规定时间交货，但又提出直径250高率焊管机是单台制造，配套设备有委托其他单位加工部分，故拖延了工期，合同又未规定提前或延期交货的奖惩条款，钢窗厂余欠的4万元货款应予承付。钢窗厂则提出反诉，认为购买机床厂该设备的资金来源是建设银行专项贷款，计划投产后以盈利偿还，由于机床厂不按期交货，造成计划落空，损失很大，故以机床厂4万元贷款弥补损失。
W市中级人民法院认为；机床厂对延期交货应承担违约金；机床厂预收贷款30万元，在延期交货期间，属于占用钢窗厂资金，应按流动资金贷款利率计算利息，返还钢窗厂。经调解，机床厂认识到了延期交货的责任。经双方协商，机床厂同意承担延期交货违约金17646元；返还延期交货期间占用钢窗厂资金30万元的利息18660元；偿付牛皮垫件延期交货的违约金3694元。以上三项合计为4万元，与钢窗厂反诉要求赔偿损失的款额相等。在此情况下，机床厂申请撤诉，钢窗厂亦表示同意。W市中级人民法院考虑到双方争议的事实已经查清，是非责任已经明确，纠纷实际已经解决，故书面裁定准予机床厂撤诉。
关于交付期限，如前所述，它是指合同当事人约定的一个具体的时间，如买卖双方在合同中约定，出卖人应于3月5日在某车站向买方交付买方所购化肥，则3月5口即为交付期限，不能提前或者延期交货。
买卖合同当事人约定了交付期间的，则应依据有关法律规定的方法计算该期间。根据我国《民法通则》第154条规定，民法所称的期间按照公历年、月、日、小时计算。规定按照小时计算期间的，开始的当天不算入，从下一天开始计算。期间的最后一天是星期日或者其他法定休假日的，以休假日的次日为期间的最后一天。期间最后一天的24∶00点为截止时间。有业务时间的，到停止业务活动的时间截止。此外，当事人约定的期间不是以月、年的第一天起算的，1个月为30日，1年为365日。期间的最后一天是星期日或者其他法定休假日，而星期日或者其他法定休假日有变通的，以实际休假日的次日为期间的最后一天，按照日、月、年计算期间，当事人对起算时间有约定的，按约定办理。
产品的交货地点是合同中的履行地点，它在合同中具有十分重要的意义：
(1)履行地点直接关系到合同履行的时间、履行的费用开支，合同约定了履行地点，如一方不按约定的地点履行，自变更履行地点造成了经济损失要承担责任，卖方发货到错误的地点由此产生的一切费用应由卖方承担。履行地点不明确或者搞错往往也会拖延合同的履行期限。
(2)履行地点是判断合同当事人是否违约的一种标志。如果合同一方不按约定的地点履行义务，对方可以追究其违约责任。
(3)履行地点还关系到合同发生纠纷由哪个法院管辖。《民事诉讼》法第24条规定：“因合同纠纷提起的诉讼，由被告所在地或合同履行地人民法院管辖”，可见，履行地点是确定合同案件管辖的标志之一，最高人民法院有关司法解释进一步明确，合同约定履行地的，约定优先。因此，一旦合同双方约定了合同履行地点，也就确定了合同纠纷的管辖地。相反，如果合同没有约定履行地点或约定履行地点不明确，双方有可能发生管辖权的争议。在实践中，当事人相互争管辖权，主要原因就在于合同没有明确约定履行地点。
在约定合同履行地点时应注意两点：
(1)应选择对自己有利的履行地点，在买卖合同，当作为卖方当事人时，你应争取把履行地点放在发货地；作为买方也一样，应争取以收货地点作为合同履行地点。这样即使在价款或运杂费上自己多承担一点，但对于避免承担标的物的风险责任以及争取案件的管辖权是有很大的益处的。
(2)履行地点应写详细。切莫简写，跨省、地、县时，应在履行地点前面分别冠上省名、地区或市名、县名，在一定范围内有重复地名站名的，更不能简写，否则搞错交货地点，造成不必要的损失。
买卖合同双方当事人之间常常因为出卖人交付的标的物是否符合约定问题而发生纠纷，尤其是在当事人在合同中就检验条款疏于约定，买受人收货后怠于检验，或检验后怠于通知的情况下，双方更易发生争议，因此，在买卖合同订立及履行过程中，为了保证合同标的物的质量达到规定标准，必须进行产品的验收。在约定验收条款时，应当注意以下几方面的问题。
1.在买卖合同中就标的物检验作出约定
毫无疑问，只有经过检验，买受人才能知道出卖人所交付的标的物是否符合约定。除双方当事人另有约定外，买受人有检验所收到的标的物的权利，而检验的结果对双方当事人利益影响也至关重要。为避免履行中，其内容和履行后双方发生不必要的纠纷，买卖合同的双方当事人应在合同中明确