Chapter 8: Miscellaneous Provisions


Article 123     If there are provisions as otherwise stipulated in respect to contracts in other laws, such provisions shall be followed.

Article 124     Any contract which is not addressed explicitly in the Specific Provisions of this Law or in other laws shall apply the provisions of the General Provisions of this Law. The most similar provisions in the Specific Provisions of this Law or in other laws may be applied mutatis mutandis.

Article 125     With regard to disputes between the parties to a contract arising from the understanding of any clause of the contract, the true intention of such clause shall be determined according to the terms and expressions used in the contract, the contents of the relevant clauses of the contract, the purpose for concluding the contract, the transaction practices and the principle of good faith.

Where two or more languages are adopted in the text of a contract and it is agreed that both texts are equally authentic , it shall be presumed that the terms and expressions in various versions have the same meaning. In case that the terms and expressions in different versions are inconsistent, they shall be interpreted according to the purpose of the contract.

Article 126     The parties to a contract involving foreign interests may choose the law applicable to the settlement of their contract disputes, except as otherwise stipulated by law. If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied.

The contracts for Chinese-foreign equity joint ventures, for Chinese-foreign contractual joint ventures and for Chinese-foreign cooperative exploration and development of natural resources to be performed within the territory of the People's Republic of China shall apply the laws of the People's Republic of China.

Article 127     The departments of administration for industry and commerce and other competent departments shall, within the scope of their respective competence and functions, be responsible for supervision over and dealing with illegal acts in taking advantage of contracts to endanger and harm the State interests and public interests. In case that a crime is constituted, criminal responsibility shall be investigated.

Article 128     The parties may settle their disputes relevant to the contract through conciliation or mediation.

The parties may, if unwilling to settle their disputes through conciliation or mediation or failing in the conciliation or mediation, apply to an arbitration institution for arbitration according to their arbitration agreement. The parties to a contract involving foreign interests may, according to their arbitration agreement, apply for arbitration to a Chinese arbitration institution or other arbitration institutions. If there is no arbitration agreement between the parties or the arbitration agreement is null and void, they may bring a lawsuit before the people's court. The parties shall perform the court judgements, arbitration awards or mediation documents with legal effectiveness. In case any refusal in respect to the performance, the other party may request the people's court for execution.

Article 129     The time limit for action before the people's court or for arbitration before an arbitration institution regarding disputes relating to contracts for international sales of goods and contracts for technology import and export shall be four years , calculating from the date on which the party knows or ought to know the infringement on its rights. The time limits for action before the people's court or for arbitration before an arbitration institution regarding other contracts disputes shall be in accordance with the provisions of the relevant laws.

Article 130     A sales contract is a contract whereby the seller transfers the ownership of an object to the buyer and the buyer pays the price for it.

Article 131     Other than those as stipulated in Article 12 of this Law, a sales contract may also contain such clauses as package manner, inspection standards and method, method of settlement and clearance, language adopted in the contract and its authenticity.

Article 132     An object to be sold shall be owned by the seller or of that the seller is entitled to dispose.

Where the transfer of an object is prohibited or restricted by the laws and administrative regulations, the provisions thereof shall be followed.

Article 133     The ownership of an object shall be transferred upon the delivery of the object, except as otherwise stipulated by law or agreed upon by the parties.

Article 134     The parties to a sales contract may agree that the ownership shall belong to the seller if the buyer fails to pay the price or perform other obligations.

Article 135     The seller shall perform the obligation to deliver to the buyer the object or the documents to take delivery of the object, and to transfer the ownership of the object.

Article 136     The seller shall, according to the terms of the contract or transaction practices, deliver to the buyer relevant documents and materials other than the documents to take delivery of the object.

Article 137     When an object such as computer software with intellectual property rights is sold, the intellectual property rights of such object shall not belong to the buyer except as otherwise stipulated by law or agreed upon by the parties.

Article 138     The seller shall deliver the object according to the agreed time limit. If a time limit of delivery is agreed upon, the seller may deliver at any time within the said time limit.

Article 139     Where there is no agreement in the contract between the parties as to the time limit to deliver the object or such agreement is unclear, the provisions of Article 61 and Sub-Paragraph (4), Article 62 of this Law shall be applied.

Article 140     If an object has been possessed by the buyer before the contract is concluded, the delivery time shall be the time when the contract goes into effect.

Article 141     The seller shall deliver the object according to the agreed place. Where there is no agreement in the contract between the parties as to the place to deliver the object or such agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, the following provisions shall be applied:

  1. In case the object needs carriage , the seller shall deliver the object to the first carrier so as to hand it over to the buyer; or

  2. In case the object does not need carriage, and the seller and buyer know the place of the object when concluding the contract, the seller shall deliver the object at such place; if the place is unknown, the object shall be delivered at the business place of the seller when concluding the contract.

Article 142     The risk of damage to or missing of an object shall be borne by the seller before the delivery of the object and by the buyer after the delivery, except as otherwise stipulated by law or agreed upon by the parties.

Article 143     Where the object cannot be delivered according to the agreed time limit due to causes of the buyer, the buyer shall bear the risk of damage to or missing of the object as of the agreed date of delivery.

Article 144     Where the seller sells an object delivered to a carrier for carriage and en route of carriage, the risk of damage to or missing of the object shall be borne by the buyer as of the time of establishment of the contract, except as otherwise agreed upon by the parties.

Article 145     Where there is no agreement in the contract between the parties as to the place of delivery or such agreement is unclear, and the object needs carriage according to the provisions of Sub-paragraph (1), Paragraph 2, Article 141 of this Law, the risk of damage to or missing of the object shall be borne by the buyer after the seller has delivered the object to the first carrier.

Article 146     Where the seller has put an object at the place of delivery according to the provisions of Sub- paragraph (2), Paragraph 2, Article 141 of this Law, while the buyer fails to take delivery of the object by violating the terms of the contract, the risk of damage to or missing of the object shall be borne by the buyer as of the date of breach.

Article 147     The buyer's failure in delivering the documents and materials relating to the object according to the terms of the contract may not affect the risk transfer of the damage to or missing of the object.

Article 148     Where it is not able to realize the purpose of a contract because the quality of the object has not satisfied the quality requirements, the buyer may refuse to accept the object or may rescind the contract. Where the buyer refuses to accept the object or rescinds the contract, the seller shall bear the risk of damage to or missing of the object.

Article 149 In case that the buyer bears the risk of damage to or missing of the object, the buyer's right may not be affected to claim the assumption by the seller of the liabilities for breach of contract because of the seller's performance failing to conform with the terms of the contract.

Article 150     The seller shall, in respect of the object delivered, assume the obligation to guarantee that no third party may claim any right to the buyer, except as otherwise stipulated by law.

Article 151     Where the buyer knows or ought to know, when concluding the contract, that a third party has rights on the object to be sold, the seller may assume no obligation as stipulated in Article 150 of this Law.

Article 152     Where the buyer has conclusive evidence to demonstrate that a third party may probably claim rights on the object, the buyer may suspend to pay the corresponding price, unless the seller provides a proper guaranty.

Article 153     The seller shall deliver the object according to the agreed quality requirements. In case that the seller provides with the quality specifications concerning the object, the delivered object shall satisfy the quality requirements in such specifications.

Article 154     Where there is no agreement between the parties in the contract on the object quality requirements or such agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, the provisions of Sub-paragraph (1), Article 62 of this Law shall be applied.

Article 155     Where the object delivered by the seller fails to conform with the quality requirements, the buyer may claim the assumption by the seller of the liabilities for breach of contract according to the provisions of Article 111 of this Law.

Article 156 The seller shall deliver the object in the agreed package manner. Where there is no agreement on package manner in the contract or the agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, the object shall be packed in a general manner, and if no general manner, a package manner enough to protect the object shall be adopted.

Article 157     The buyer shall inspect the object within the agreed inspection period after receiving the object. In case there is no such period agreed upon in the contract, the inspection shall be made in time.

Article 158     Where the parties have agreed upon the inspection period in the contract, the buyer shall, within the period for inspection, make a notice to the seller that the object quantity or quality fails to conform with the terms of the contract. If the buyer is indolent in making such a notice, it shall be deemed that the object quantity or quality has conformed with the terms of the contract.

Where there is no agreement between the parties in the contract on the inspection period, the buyer shall make a notice to the seller within a reasonable time period after it finds or ought to find that the object quantity or quality fails to conform with the terms of the contract. If the buyer fails in making a notice within such reasonable time period or within two years as of the date of receiving the object, it shall be deemed that the object quantity or quality has conformed with the terms of the contract. However, if there is a quality guarantee period on the object, the said quality guarantee period shall be applied instead of the above said two years.

Where the seller knows or ought to know the object to be supplied does not conform with the terms of the contract, the buyer may not be restricted by the time limit as stipulated in the preceding paragraph.

Article 159     The buyer shall pay the price according to the agreed amount in the contract. If there is no agreement in the contract on the price or such agreement is unclear, the provisions of Article 61 and Sub-paragraph (2), Article 62 of this Law shall be applied.

Article 160     The buyer shall pay the price at the agreed place. If there is no agreement in the contract on the place of payment or the agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, the buyer shall pay at the seller's business place. However, if it is agreed that the delivery of the object or the documents to take delivery of the object is set as a prerequisite to the payment of the price, the payment shall be made at the place where the object or the documents to take delivery of the object are delivered.

Article 161     The buyer shall pay the price at the agreed time. If there is no agreement in the contract on the time of payment or such agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, the buyer shall pay at the same time when receiving the object or the documents to take delivery of the object.

Article 162     Where the seller delivers excessive objects, the buyer may accept or refuse to accept the excess part. In case the buyer accepts the excess part, the buyer shall pay for it at the price in the original contract; if he refuses to accept the excess part, the buyer shall make a notice to the seller promptly.

Article 163     Any fruits generated by the object before delivery shall be owned by the seller, while those generated after delivery shall be owned by the buyer.

Article 164 If a contract is rescinded resulting from that the principal part of the object fails to satisfy the terms of the contract, the effectiveness of rescinding the contract shall extend to the collateral part. Where the collateral part of the object fails to satisfy the terms of the contract so that it has been rescinded, the effectiveness of its rescinding may not extend to the principal part.

Article 165     Where the object contains several items and one of them fails to satisfy the terms of the contract, the buyer may rescind the contract with respect to such item. However, if its separation from other items will damage the object value obviously, the parties may rescind the contract with respect to such several items.

Article 166     Where the seller delivers the object in batches, if the seller fails to deliver one batch of the object or the delivery fails to satisfy the terms of the contract so that the said batch can not realize the contract purpose, the buyer may rescind the contract with respect to such batch of object.

If the seller fails to deliver one batch of object or the delivery fails to satisfy the terms of the contract so that the delivery of the subsequent batches of objects can not realize the contract purpose, the buyer may rescind the contract with respect to such batch and the subsequent batches of objects.

If the buyer has rescinded the contract with respect to one batch of object and such batch of object is indispensable to other batches of the objects, the buyer may rescind the contract with respect to the various batches of objects delivered and undelivered.

Article 167     Where the buyer making payment by installments fails to pay the price due and the amount unpaid accounts for one fifth of the whole price, the seller may request the buyer to pay the whole price or may rescind the contract.

Where the seller rescinds the contract, the seller may request the buyer to pay for the use of such object.

Article 168     The parties to a sales transaction based upon the sample shall seal up the sample, and may make specifications on the sample quality. The object delivered by the seller shall have the same quality as the sample and the specifications.

Article 169     Where the buyer to a sales transaction based upon the sample does not know that the sample has a hidden defect, even if the object delivered is the same as the sample, the object delivered by the seller shall still meet the normal standards of the kind.

Article 170     The parties to a sales transaction on trial use may agree on the period of trial use of the object. If there is no agreement in the contract on such period or such agreement is unclear, nor can it be determined according to the provisions of Article 61 of this Law, it shall be determined by the seller.

Article 171     The buyer to a sales transaction on trial use may, during the period of trial use, buy the object or refuse to buy it. Upon the expiry of the period of trial use, if the buyer fails to express whether or not to buy the object, the purchase shall be deemed.

Article 172     The rights and obligations of the parties to a sales transaction in the form of inviting and making tenders and the procedures therefor, shall be in accordance with the provisions of relevant laws and administrative regulations.

Article 173     The rights and obligations of the parties to an auction and the procedures therefor, shall be in accordance with the provisions of relevant laws and administrative regulations.

Article 174     Where there is any provision on other non- gratuitous contracts in the laws, such provisions shall be followed; if no such provisions, the relevant provisions on sales contracts shall be applied mutatis mutandis.

Article 175 Where the parties make an agreement on a barter trade, and the ownership of the object is to be transferred, the relevant provisions on sales contracts shall be applied mutatis mutandis.




Doing Business with China
Doing Business with China
ISBN: 1905050089
EAN: 2147483647
Year: 2003
Pages: 648
Authors: Lord Brittan

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