1. Risk prevention during the contract signing process

Once contract risks occur, it will bring serious consequences to the enterprise, so it is necessary to do a good job in preventing and controlling contract risks in advance.

(1) Review the subject qualifications of the cooperation partners before signing.

Comprehensive and accurate understanding of the basic situation of the cooperation partner will help to take appropriate countermeasures when signing a contract, prepare for rainy days, and avoid risks.

1. Review the basic situation of the partner. First, you need to understand whether the other party has legal person or agent qualifications and whether it has the right to sign a contract. Otherwise, the contract will often be invalid due to the subject's ineligibility. The most effective way to review the qualifications of the contract subject is to check the other party's business license and the company's certification documents for participating in annual inspections. You cannot just rely on your business card, letter of introduction, work permit, official seal, power of attorney, copy of business license and other documents, because from actual work cases we found that some companies have had their business licenses revoked by the industrial and commercial department because they did not participate in annual inspections for two consecutive years. If you are a little careless, you may fall into a trap set by some criminals.

2. Check whether the partner has the corresponding professional qualifications. Our country's laws have restrictive provisions on the qualifications for certain industries. Units and individuals without qualifications are not allowed to engage in specific businesses. Signing such contracts with unqualified entities will bring economic losses to the enterprise.

3. Investigate the business reputation and performance capabilities of the partner. Conduct on-site inspections of partners as much as possible, or entrust a professional investigation agency to investigate their credit status. Do not simply believe the words of the partner's negotiators.

(2) Do a good job in reviewing the main terms of the contract.

The signing of the contract should be in writing, with accurate wording, clear expressions, and clear agreements to avoid ambiguity. For important contract terms, you must carefully consider every word. It is best to refer to some standard texts and add or delete them based on the actual situation of the transaction. For important contracts, you should hire a professional lawyer to review them to prevent problems before they occur.

1. The agreement on the subject matter of the contract should be as detailed as possible.

(1) The name and model of the subject matter must be accurate. When negotiating with customers for multi-specification products, it is necessary to explain the specific specifications of each model of product and understand the customer's needs in detail. Avoid discrepancies between supply and demand.

(2) The subject matter must be clear and will not infringe the intellectual property rights of others.

For enterprises, if they are purchasing products with trademarks, they should pay attention to whether the other party legally owns the trademark rights of the products; if they are producing and processing products for the other party, they should pay attention to whether the products will infringe others' rights. trademarks and patent rights. At the same time, it is best to ask the other party to make a commitment that it will not infringe the intellectual property rights of others.

(3) The quantity of the subject matter must be clear.

The quantity of the subject matter should be as detailed as possible to its smallest unit of measurement, because the same product may have different results if its packaging methods are different. For example: a bag of rice may weigh 10 kilograms, or it may weigh 20 kilograms.

(4) When the subject matter needs to be packaged, the packaging standards should be clearly defined, including the material of the outer packaging, inner packaging or filling, as well as the requirements for moisture-proof, fire-proof and impact-proof, etc., and the packaging standards should also be determined. How packaging costs are borne.

(5) Pay attention to listing each product or the unit price of each product, rather than just listing a total price.

(6) The delivery time of the subject matter should be clear.

2. The delivery method terms should be clear.

If the goods are sent to the local area, the delivery location must be clearly agreed. If the goods are sent to other places, try to indicate that the goods are consigned by an agency. This is related to the jurisdiction of the court when handling disputes. In addition, the name of the person in charge of the consignee should be listed in the contract. Construction company personnel change frequently. When the other party replaces a new person in charge, the other party should be required to provide a power of attorney. This prevents the other party from denying that the person in charge is its staff, which would cause difficulty in producing evidence in the lawsuit.

3. The agreement on quality terms should be clear

In contract disputes, because quality issues account for a large proportion of disputes, it is recommended to agree on a clear quality inspection standard in the contract. . In addition, both parties should also clearly stipulate in the contract the time and period for assuming quality responsibility.

5. The payment terms should clearly stipulate the payment time. Ambiguous agreements can give partners reasons to delay payment.

For example, "Party A pays after receiving the goods" should be corrected to "Party A pays within 10 days after receiving the goods."

6. Things to note when agreeing on liability for breach of contract.

(1) Pay attention to the difference between deposit and "deposit". Deposit is a form of contract guarantee. According to the provisions of the Contract Law: "After the debtor performs the debt, the deposit shall be used as the price or recovered. If the party paying the deposit fails to perform the agreed debt, it has no right to request the return of the deposit; the party receiving the deposit fails to perform If the debt is stipulated, the deposit should be returned twice. However, the "deposit" is legally recognized as an advance payment and does not have a guarantee function.

(2) Deposit and breach of contract. The terms and conditions cannot be applied at the same time. Otherwise, it may conflict with the law and lead to invalidity.

7. The method of resolving contract disputes should be specific and clear.

(1) Agree on the jurisdiction of the litigation and strive to be in the place of litigation.

(2) If arbitration is chosen to resolve the dispute, the arbitration clause must clearly stipulate an arbitration institution, and the arbitration institution must exist objectively, otherwise the clause will be invalid. .

8. Pay attention to review and revise the format contract provided by the other party, and do not fully apply its terms to avoid damaging the interests of the enterprise.

2. Risk prevention during the performance of the contract< /p>

There are many uncertain factors during the performance of the contract. Both parties may make changes to the contract; one party may breach the contract; the contract may not be performed due to force majeure, etc. Therefore, active measures must be taken. Effective measures to prevent the company from suffering losses during the performance of the contract.

(1) Pay attention to retaining relevant supporting documents when performing the contract.

1. When performing the contract. It is best to have relatively complete written documents, and they must be confirmed by the other party. When delivering goods, the supplier should pay attention to the delivery note and ask the other party's receiving personnel to sign for it and stamp it with the company's receipt seal. If it is not stamped, it will be received. If the goods are stamped, the settlement should be made every month, and the other party should stamp the official seal or financial seal for confirmation. Otherwise, once the other party is sued for default, since there is only a delivery note, the other party will deny the consignee on the delivery note. If the person is an employee of his company, the case may be lost without other relevant evidence.

2. If the payment for the goods is not paid in full when the invoice is issued, it should be noted on the invoice. , often the supplier first issues an invoice to the other company, and then asks the other party to collect the payment. However, when delivering the invoice to the other company, it often does not indicate that the payment for the invoice has not been received. If the other party uses the receipt of an invoice as proof of payment, the supplier may lose the case if the supplier cannot provide contrary evidence to prove that the other party has not paid.

(2) . Use the right of defense in the performance of the contract to prevent risks according to the law. When encountering legal conditions or situations where the partner's breach of contract may harm our interests, we can suspend the performance or terminate the contract in accordance with the law to protect the rights and interests of the enterprise.

(3) Actively resolve disputes and defend the legitimate rights and interests of enterprises in accordance with the law.

1. When disputes arise, the issue should be handled in a friendly consultation manner, which will help collect favorable evidence. . Once conflicts and disputes arise, the other party often adopts an uncooperative attitude, causing the matter to reach a deadlock.

2. When signing a repayment agreement, all terms must be clear. The agreement should state the amount of debt recognized by the other party and the specific time for repayment. It can be agreed that if the first repayment period expires and the repayment is not made in accordance with the agreement, the entire amount owed will be deemed due. It should also be agreed that if the other party fails to repay the amount as agreed, Payment shall be under the jurisdiction of the court where the enterprise is located, and the agreement shall be affixed with the official seal of the debtor unit.

3. When seeking judicial relief, you should pay attention to the statute of limitations. my country's "General Principles of Civil Law" clearly stipulates the statute of limitations: the statute of limitations for petitioning the People's Court for protection of civil rights is 2 years. For example: after a purchase and sale contract is signed, if one party delays payment or delivery, the party should file a lawsuit within two years from the expiration of the performance period stipulated in the contract. However, special attention should be paid to the following statute of limitations: one year: ① late payment or refusal to pay rent; ② selling goods with substandard quality without declaration; ③ storage property being lost or damaged. If you claim contractual rights after the statute of limitations has passed, you will lose your right to win the lawsuit, and your original legitimate rights and interests will not be supported by the law.

7. Risks of contract transaction entities

(1) The risk that the agent (such as a salesperson) does not have the authority to act as an agent or exceeds the authority of agency.

If the actor has no agency power, exceeds the agency power, or enters into a contract in the name of the principal after the agency power is terminated, and the counterparty has reason to believe that the actor has the agency power, the agency act is valid. This kind of agent is called an apparent agent, and it poses a threat to many companies. This is mainly manifested in the fact that after the company's salesperson leaves the company, he still has the original company's power of attorney, blank contract, work permit and other materials that can make people think that he is still an employee of the company, and then uses these materials to sign contracts with others in the name of the company. There are also situations where employees in an enterprise use such materials in their hands to sign contracts with others out of personal interests. In the end, the consequences of these contracts will be borne by the enterprise.

(2) If the legal representative or responsible person of a legal person or other organization enters into a contract beyond his authority, the representative act shall be valid unless the counterparty knows or should know that he or she has exceeded his authority. This means that the company’s internal binding documents on the legal representative are not legally binding on the outside world. The consequences should ultimately be borne by the company, but they are binding between the company and the legal representative. Therefore, within the company In the management of a company, when there are restrictions on the authority of the legal representative, the responsibilities that the legal representative should bear after breach of contract must be clarified, so as to achieve the purpose of complete restraint. This is a risk arising from the legal representative.

The above two types of risks are mainly caused by loopholes in contract management. Strengthening contract management is an effective way to avoid such risks.

IV. Contract Terms

The subject matter, quantity, quality, performance terms, breach of contract clauses, etc. of the contract at the time of signing should be accurate and should not be ambiguous. Any ambiguity will Cause unnecessary disputes.

1. Target clauses

The target clauses mainly include the quantity of the target and the quality of the target. The unit of measurement, measurement method, quantity and other contents that may affect the quantity should be specified in the quantity of the target; The quality assurance clauses of the subject matter should include rights guarantee (guaranteeing that the subject matter has complete right to dispose of it), integrity guarantee (guaranteeing that the subject matter and its supporting facilities are complete and complete), including effectiveness guarantee (guaranteeing that the subject matter complies with the pre-agreed index parameters). , capable of achieving the intended use and purpose), quality inspection (the agency, method, and method of inspecting quality), maintenance guarantee and warranty period, etc. The benchmarking terms should be as accurate as possible, specifically based on the principle of ensuring that there is no ambiguity, and it is best to be able to Provide a format standard contract according to the characteristics of the industry, and make adjustments based on the contract according to the specific situation, which can reduce the arbitrariness in the contract signing process.

2. Price terms

When signing price terms, you should pay attention to the following points:

(1) The amount should be in the same case and cannot be Alterations have occurred to avoid ambiguity;

(2) If the amount involves taxes, the method of bearing the taxes should be indicated;

(3) The payment conditions for the goods should be clear to reduce Transaction risks;

(4) The method of payment should be clear.

3. Performance clauses

The performance clauses of the contract should specify the place where the contract will be performed, the time of contract performance, the obligor for contract performance and the content of contract performance; for contract performance The time should be clear, whether it is a point in time or a time limit, and strive to be precise, and the calculation method of time should be clear; the place where the contract is performed should be as detailed as possible, including the city, street and its number, and even the room if possible. number; the content of performance requires the obligor to do what, how to do it, and what standards to meet, etc., which is the core content of the performance clause, because the performance clause is related to the breach of contract clause, risk sharing separation point, and dispute jurisdiction. Therefore, we should strive to be accurate when signing, and should consider it systematically and make a decision only after comprehensive measurement. Performance risk is the most common type of contract risk, which stems from two points: one is that the other party is weak in performance; the other is that the other party takes advantage of loopholes in the performance terms or the parties misunderstand the performance terms, leading to the final risk .

4. Quality clauses

Nowadays, many people are using contracts to make money, and the most used point is quality clauses. When stipulating quality clauses in the contract, you must pay attention to quality assurance. Ability, do not sign contracts beyond your ability to win the contract; once the final quality cannot be guaranteed, various forms of claims may result. In the quality clause:

(1) Agree on the quality standards;

(2) Agree on the quality inspection period.

In practice, you should learn to check the quality of the product in a timely manner during the inspection period to see if it meets the standards to prevent losses to yourself.

5. Default clause

A contract without a breach clause is a contract with no guarantee of performance and a non-binding contract. Therefore, the breach clause must be made clear in the contract. Breach of contract takes the form of one party not performing its contractual obligations or performing its contractual obligations inconsistently with the agreement. In this case, the defaulting party shall generally bear the liability for breach of contract such as continuing to perform, taking remedial measures, or compensating for losses. The most important thing here is to agree on the amount of liquidated damages that one party should pay to the other party for breach of contract or the calculation method of the compensation for losses due to breach of contract. This can effectively avoid the two parties getting entangled in liquidated damages when disagreements arise. A special point to note here is the difference between deposits and deposits. Legally, only deposits are subject to double returns, while others are only obligated to return the principal.

6. Risk of loss of the subject matter

The risk of damage or loss of the subject matter shall be borne by the seller before the delivery of the subject matter and by the buyer after delivery, unless otherwise provided by law. Unless there are provisions or otherwise agreed by the parties. In order to distinguish the risk of loss during the delivery process, the time, place, and performance standards must be clarified when signing the contract to avoid being unable to determine liability in the event of accidental loss.

5. Legality of the contract

The contract is invalid mainly for one of the following reasons:

(1) One party uses fraud or coercion to Entering into a contract to harm national interests;

(2) Malicious collusion to harm the interests of the country, the collective or a third party;

(3) Covering illegal purposes in legal forms;

(4) Harm the interests of the public;

(5) Violate the mandatory provisions of laws and administrative regulations.

Signing an invalid contract will bring great risks to the party performing in good faith, and will also give the malicious party many excuses to terminate the contract at will. The risk is very high, so when signing a contract, you should pay special attention to whether there is any situation where the contract is invalid, so as to avoid the risk caused by the invalid contract.

6. Legal Risks of Terminating the Contract

The termination of the contract is divided into statutory termination and agreed termination.

Statutory termination means that the parties can terminate the contract as long as one of the following circumstances occurs:

(1) The purpose of the contract cannot be achieved due to force majeure;

(2) Before the expiration of the performance period, one party expressly expresses or shows by its own behavior that it will not perform its major obligations;

(3) One party delays the performance of its major obligations and fails to perform within a reasonable period after being urged. ;

(4) One party delays the performance of its debts or commits other breaches of contract, resulting in the inability to achieve the purpose of the contract;

(5) Other circumstances stipulated by law.

It is agreed that the termination shall be subject to the termination conditions agreed in the contract between the parties.

There is a time limit for rescission of a contract and must be requested within the legal provisions (usually one year) or the time limit for the exercise of the right to terminate agreed upon by the parties. If the party does not exercise the right to terminate the contract upon expiration of the time limit, the right will be extinguished.

The most likely risk in the process of terminating a contract is the understanding of the procedures for terminating the contract and the conditions for terminating the contract. To terminate the contract, the other party should generally be notified in writing, and the contract will be terminated when the notice reaches the other party. You must pay special attention when terminating the contract. Terminating the contract at will will bring great risks to the enterprise. If the other party has objections when terminating the contract, it can request the people's court or arbitration institution to confirm the validity of the contract termination. In the process of exercising the right to terminate the contract, the notice of contract termination must be delivered to the other party and evidence must be retained. To avoid any dispute on whether it has been lifted.

After the contract is terminated, if it has not yet been performed, the performance shall be terminated; if it has been performed, based on the performance and the nature of the contract, the parties may request restoration to the original status, take other remedial measures, and have the right to demand compensation for losses.

The termination of the rights and obligations of the contract will not affect the validity of the settlement and liquidation clauses in the contract.

7. Cancellable Contract

(1) Major misunderstanding: a contract entered into when one party has a major misunderstanding of the background, purpose, and content of the contract due to his own fault;

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(2) Obviously unfair contract: both parties enter into a contract that is obviously disadvantageous to themselves due to lack of experience;

(3) Taking advantage of others: both parties take advantage of others The critical situation or urgent need to force the other party to accept a contract against its will.

The above three types of contracts are revocable contracts. The injured party can request to cancel the above-mentioned contracts within one year from the time when it knows or should know that one of the above circumstances exists.

8. Several special circumstances during the performance of the contract

1. Simultaneous performance of defense

Both parties to the contract bear mutual debts, and there is no order of performance. If the other party fails to perform or performs incompletely, the other party has the right to refuse corresponding performance.

2. Right of uneasiness defense

If the party that performs the debt first has definite evidence that the other party may lose the ability to perform, it can suspend performance and require the other party to provide a guarantee, otherwise it may not perform the contract. .

3. Right of defense for subsequent performance

If the party performing later discovers that the performance of the party performing earlier does not meet the requirements of the contract, the party performing later may suspend performance.

4. Right of subrogation

When the debtor fails to exercise its due creditor's rights and causes damage to the creditor, the creditor requests the court to subrogate the creditor's rights in his own name.

5. Right of cancellation

If the debtor gives up its due creditor's rights or transfers property for free or at a low price, causing losses, the creditor may request the court to cancel the bank.

The above five are common remedial measures when one party discovers that the creditor's rights may be damaged during the performance of the contract. If used properly, it can effectively avoid losses and reduce legal risks. Among the first three performance methods mentioned above, strive to perform the obligations after the contract is assumed, because the risk in the contract is the smallest at this time. If this is not possible, you can strive for simultaneous performance (the first method above). For the second method, when performing obligations first, it should be based on the fact that the other party is an old customer of one's own, has very good credit, and has no bad performance behavior, but even so, one should be cautious Be careful and avoid causing unnecessary losses to yourself.

9. Change of situation

During the performance of the contract, if the objective circumstances on which the parties concluded the contract have undergone significant changes, which affects the performance of the contract, they may apply for a change. Price Terms. The most common ones are caused by huge changes in material prices or major changes in the market. If an enterprise makes effective use of this during its business operation, it will also greatly reduce the enterprise's losses.

10. Post-contractual obligations

Enterprises should agree on confidentiality clauses in the contract, which can effectively prevent the leakage of business secrets, which is very beneficial to protecting the interests of the enterprise.

11. When signing the contract, you should also note the following details

1. Keep a copy of the business license, identity certificate of the legal representative, power of attorney, and copy of the ID card and other relevant materials that can prove your identity.

2. When stamping the official seal, it must be clear.

3. Any modifications in the contract must be confirmed with a seal.

In short, the majority of small and medium-sized enterprises should firmly establish an awareness of risk prevention during the signing and implementation process, and take effective measures to actively respond, so as to safeguard the legitimate rights and interests of the enterprise and avoid undue losses.