Building materials sale contract legal risk case study
Any sale contract, the other party's understanding of the basic information is to assess the signing of this contract risk factor is the most fundamental elements. The following is my legal risk case study for you to share the contract for the sale of building materials, welcome to read and browse.
First, effectively identify the buyer's subject
Any contract of sale, the other party's understanding of the basic information is to assess the risk of signing the contract the most fundamental elements. And building materials sales contract is often due to the construction of the prevailing subcontracting, subcontracting and other issues lead to the buyer as the subject of identity is more complex. In the case of disputes over the purchase and sale of building materials, the buyer is often the main body of the operator (such as materials or warehouse managers), project managers, contractors, subcontractors, general contractors, etc., so in the signing of the contract, some stamped with the official seal of the project department; some stamped with the material seal; some are contractors; some are contractors; some contractors are dependent on the construction unit; some only have the signature of the materials officer. These irregularities directly lead to the difficulty of identifying the subject of the debt, increasing the risk of building materials operators to collect arrears.
[ Case ]
A construction company contracted a district project part of the construction project subcontracted to the B construction company, the B construction company and the project's water and electricity project subcontracted to the foreman Xu responsible for the construction of the construction, in the process of construction, Xu in the name of a building materials and a building materials business signed a building materials sales contract and has been to the name of the personal and building materials business settlement. And building materials business settlement. On a certain date in a certain month, Xu Mou in his personal name to the building materials business issued a note, writing that owed a building materials business building materials X million yuan, for a certain site, by himself on a certain date in a certain month to repay. After the completion of the project, xu mou does not pay the materials owed, don't know where to go. The building materials business has not been able to find Xu, so to the court sued Xu and asked A, B two construction companies to assume joint and several liability. After the court hearing, the building materials business has no evidence to prove that Xu is the person in charge of a community project and its purchase of materials used for a community project, the judgment of Xu to a building materials business to repay the arrears of X million yuan; dismissed the building materials business of the other litigation requests.
[Lawyer's Advice]
In the above case, the building materials merchant could not prove that Xu was the person in charge of a neighborhood project, and Xu's note alone could not prove that the building materials he supplied were used in the neighborhood project, so according to the principle of relativity of contract, the building materials merchant could only look for Xu to claim the above outstanding amount. Such cases are often more difficult to implement.
Encountered the above situation, the contract of sale or delivery note only the signature of the contractor, and the contractor is not the legal significance of the project leader (if the project leader can be to the construction bureau archives management department to confirm its identity), then the building materials business, if the construction unit denies that the project will be subcontracted to the contractor, denies that it is to the building materials business to buy building materials, the building materials business, the building materials business, the building materials business, the building materials business, the building materials business, the building materials business, the building materials business, the building materials business, the building materials business. According to civil litigation? Who claims, who proves? According to the provisions of the civil litigation, it is necessary for the building materials supplier to prove the fact of supply, which makes it very difficult for the building materials supplier to prove.
In summary, the building materials business in the day-to-day transactions to standardize the internal management, carefully audit the buyer subject. Generally speaking, the claim to the unit payment than to the individual claim payment to be easier, so in the course of the transaction to clarify the direction of the material, if the unit is indeed the use of materials, it is best to sign a contract of sale and purchase of the unit, and the contractor example for the operator, specified in the contract. Subsequent delivery but if there is no unit seal, the contractor's signature is also legally effective. This practice can effectively prevent the construction unit from not recognizing the fact of receipt of the goods as well as questioning the authenticity of the signature after the foreman has left or in case of dispute between the foreman and the construction unit. Other personnel (such as materials clerk, etc.) sign on the delivery note or when the operator changes, you should let the unit issue a power of attorney, and the operator will sign on the power of attorney.
Second, carefully read the contract, strict control of the main terms of the contract
First, the sale of building materials should be entered into a written contract, in practice, often many of the parties involved due to acquaintances, buyers and sellers are often verbal agreement, and then in the delivery note, the bill of sale on a simple record of the name of the goods, the number of prices, etc. as a contract voucher. This unstandardized operation, often in the event of disputes lead to many facts more difficult to prove.
Secondly, as the main terms of all contracts of sale, in the building materials category of the contract of sale should also be given sufficient attention, including the following terms:
1, specification terms: for a variety of specifications of the product more attention. When signing a contract of sale with the customer, the contract must indicate the customer to purchase a variety of product models and quantities, so as to avoid duplication of supply.
2, price terms: price terms as an important provision of the contract for the sale of building materials, in the signing of the contract must be indicated in the contract of various products, the total price of the contract, as well as whether or not it contains the cost of freight accessories.
3, quality terms: according to the quality of the building materials supplied by the agreed quality inspection standards, quality inspection period.
4, payment terms: building construction is often a long construction period, which requires building materials suppliers to pay enough attention to the contract agreed payment terms. We often see a lot of sales contracts on the payment term of the agreement is not clear. For example:? Acceptance of payment; to be used by the buyer payment; monthly settlement of 30 days; to be paid when the project is completed 30% of how much to pay, to be paid after the completion of the project? And so on. These are not clear agreement is there is a certain legal risk.
[ Case ]
A concrete company and B construction company signed a concrete sales contract, the contract in the payment term so agreed:? 10% of the total contract price as a prepayment, to be completed 40% of the total volume of work paid to 30% of the total contract price, to be completed 80% of the total volume of work paid to 70% of the total contract price, the balance of 20% of the project to be completed and acceptance of payment. After a variety of reasons, the project was delayed through the completion of acceptance, B construction company also delayed payment of 20% of the purchase price, A company had no choice but to sue the court to order B construction company to immediately pay 20% of the purchase price. The court found that the contract for the parties to the true meaning of the contract, the contract payment conditions have not yet been achieved, rejected the A company's request.
[Lawyer's Advice]
Article 45 of the Contract Law provides that: ? The parties may agree to attach conditions to the effectiveness of the contract. A contract with conditions for its entry into force shall enter into force when the conditions are fulfilled. The contract with conditions for termination shall expire when the conditions are fulfilled. In the above case, the completion of the project is often affected by many factors, and often does not go smoothly according to the pre-conceived deadlines, so many seem to agree on a clear deadline is often uncertain, which is extremely unfavorable to the building materials suppliers. We recommend that the supplier must agree on a definite when signing the contract of sale. Payment term: such as in a certain year, a certain month, a certain date to pay how much; in the buyer to receive the buyer's goods within a few days after the payment and so on.
5, the default liability provisions: focus on the review of whether there is an unfair default liability provisions and whether there is an increase in our default liability, etc..
6, the handling of disputes: try to agree in the contract on their side of the favorable jurisdiction. If you agree to resolve disputes by arbitration, the choice of arbitration organization must be clear.
Third, save the relevant information, timely collection of accounts receivable
The building materials category of the contract payment cycle is relatively long, delivery orders and other information is relatively more, which requires our building materials business in a timely manner to do a good job of each contract receivables ledger, indicating the payment term and properly stored delivery orders and other related information. In practice, we see a lot of enterprises due to poor storage of information and fall into passive, and even some companies did not pay attention to the payment term of the contract and lead to more than the statute of limitations. As a businessman, in order to grasp the accounts receivable of their own enterprises, we suggest that one is to pay close attention to the management, safekeeping of the relevant information; secondly, we should always pay attention to the operating conditions of the defaulting party, to avoid a serious deterioration of the operating conditions of the defaulting party, the occurrence of a major economic dispute or even bankruptcy and loss of ability to repay.
Four, bright eyes, beware of contract fraud
With the development of the market economy, the fraudsters use the phenomenon of contract fraud has become more prominent. They often first obtain the trust of the operator, and then use the contract to fraud. This unlawful behavior often with a strong hidden and complexity. Many companies tend to make a business, with a certain degree of luck, or gullible can avoid the upcoming risk, which often gives the fraudsters to take advantage of the opportunity.
[ Case ]
Zhao Mou was once a construction company's materials, responsible for the management of some of the building materials leasing matters, a long time he is not only familiar with the entire process of leasing, but also recognize some of the building materials by the operators. He found that some building materials as long as the name of the project department to set a contract can be rented. Zhao Mou then teamed up with his friend Jiang Mou forged? A construction engineering company limited a district project department? The official seal, and before doing business with a building materials operators signed a "construction equipment leasing contract", rented some building materials, and then sold at low prices by the two. Taste the sweetness, the two again with the same means of cheating several times, the amount of more than 300,000 yuan. After the two have not been paid for a long time, and building materials operators can not contact them, after the lawsuit found that the project department chapter is a forgery, only to know cheated, and finally the case, although the case is quickly solved, but the loss is not fully recovered.
[Lawyer's Advice]
In a large number of criminal cases of contract fraud, we found that the victim as long as a little attention, a little investigation, in fact, can be avoided to be cheated. Many operators may pay attention to the judgment of the commercial value of the contract as well as the review of the contract terms, and often ignore the review of the qualifications and credentials of the subject. We suggest that operating companies are best able to do the following before signing a contract with the other party.
First, check the other company's business information. As in the case above, some of the fraudsters tend to sign contracts with fictitious units or in the name of others, and they mostly perform small contracts or partially perform contracts to gain the seller's trust, lure the seller to continue to sign and perform large contracts, and then escape immediately after the successful fraud. When encountering the above situation, enterprises can prevent being cheated by checking business information. Enterprises can query the registration information of the other company through the network, the Trade and Industry Bureau or commissioned lawyers, timely contact with the other company to verify the true identity of the salesman. If the building materials businessman through the query, found that the crooks said the unit does not exist, or come to negotiate the contract personnel is not the other unit, then you can decisively terminate the transaction.
Second, the operator can query the other unit of the litigation and enforcement to determine and the other unit of the transaction may have legal risks. A bad credit unit, there is bound to be a lot of litigation and implementation of the difficult situation, if the operator in the contract before the signing of the court system can be queried to the other unit of litigation and implementation of the confidence, to prevent the risk of future occurrences will play a vital role. If the counterparty has multiple outstanding cases listed online, it is advisable for the operator not to trade. On the contrary, if the other unit has never appeared in litigation or none of the executed cases, then generally such a unit can be trusted.
In addition, the operator must pay special attention to the credibility of long-term partners fraud: If and their own has been a good working relationship with the enterprise has recently appeared late payment phenomenon, and increased the amount of orders, should be taken seriously. It is likely that the other side of serious financial difficulties, facing bankruptcy and other situations. At this time as an operator should inquire about the other side of the unit's recent situation, and to the other side of the company to do a good job of investigation, rather than just listen to the other side of the word. Beware of the other side to take advantage of the independent status of the company and the limited liability of shareholders, cheating money.
Finally, building materials operators once found cheated, should be reported immediately.
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