The project cost after construction contract is invalid is decided really, according to " construction contract judicatory explains one " regulation, can consult the agreement of the contract pays a project cost. Because design feature of change, project to not agree with, project volume detailed list leaks, equal in value style makes machine of project amount deviation, artificial stuff the category that attributes contract price, reason can consult the agreement of the contract. But how is the claim for compensation after disabling to construction contract operated? And the risk in original contract partakes whether does the clause still have sanction to both sides, party whether be based on original contract venture to allocate a clause to hold the right? The invalid to construction contract law consequence in contract law of article general union and explanation of construction contract judicatory undertakes discussing.
One, the common law with invalid contract is sequential
Our country " contract law " fiftieth 6 the first section provision: "Invalid contract or by the contract of cancel from only then without legal sanction. " fiftieth 7: "The contract is invalid, perhaps be stopped by cancel, do not affect the self-existent concerns the provision that settles controversy method effectiveness in the contract. " namely after the contract is affirmed to disable, from only then invalid, have go against the river and the effectiveness that go to already, the effectiveness that settles controversy provision except the contract is insusceptible besides, of concerned contract award, amount, quality, money paid for something purchased or received for something sold or pay, fulfill the conventional due to such as means and responsibility of breach of contract to disable, party also must not be based on original contract to hold the right.
" contract law " fiftieth 8 basic principles that stipulated invalid contract is handled, the effectiveness that settles controversy provision is divided in original contract provision namely insusceptible besides, other item is invalid, and the law of invalid contract is sequential above all applicable return restorably return a principle, next applicable convert into money compensates a principle; At the same time invalid contract returns applicable fault to compensate for a principle.
2, the claim for compensation of invalid construction contract
Item of construction contract claim for compensation basically involves a contract relatively square break a contact, and the risk that agree of contract appearance opposite party carries. To active contract, one party break a contact, according to " contract law " of the 107th establish without fault responsibility principle, want state of existence party break a contact only, break a contact just ought to undertake corresponding responsibility of breach of contract; If break a contact just thinks, the other side fails to adopt measure to avoid a loss actively to expand, but according to " contract law " the 119th, fail to adopt measure to avoid a loss to expand with respect to the other side assume quote responsibility, with respect to the loss share that expands because of this, break a contact just need not grant to compensate for; If both sides all is put in break a contact, the case of break a contact that proves the other side severally exists can.
To invalid construction contract, " construction contract judicatory explains (2) " the 3rd regulation: Contract of construction project construction is invalid, one party party requests the other side to compensate for losing, ought to with respect to size of fault of the other side, loss, fault and loss between causal assume quote responsibility. Loss size cannot decide, one party party requests what cost of time limit for a project of the quality standard that the contract agrees, construction, project pays the content such as time affirmatory loss bulk to consult, people court can combine bilateral fault degree, fault and loss between causal wait for an element to make a judgment. This establish the fault liability to pay compensation after construction contract is invalid. In this kind of responsibility allocation mode falls, not with differentiating break a contact just acknowledges quote responsibility, the person that need claim for compensation however has a proof to the fault of the other side.
Specific clause of the quality that consults to place, time limit for a project, money paid for something purchased or received for something sold: With respect to project quality character, " building law " fiftieth 8 regulations: Building construction company is responsible to the construction quality of the project. Building construction company must design blueprint and construction of construction technology standard according to the project, must not jerry. The modification that the project designs is in charge of by original design unit, building construction company does not get do sth without authorization to revise a project to design. If the construction company of afore-mentioned clausal place regulations is opposite the contractor,the law with project responsible quality defines Wu, its fault is self-evident; And if the contractor can prove the person that send a package is unqualified to building a project also put in fault, send packet of person to offer the armour that has quality drawback to lay capable person for example, offer the blueprint that has design flaw, make known to lower levels to work inconsequently the instruction, send packet of person to also ought to assume corresponding responsibility.
With respect to time limit for a project character, although the contract is medium,disable about agreeing the clause of time limit for a project also is attributed to, about " conventional time limit for a project " state also no longer appropriate. But, when been fulfill actually when invalid contract, be based on honest credence principle, and party must not be obtained because of invalid contract relatively the legal principle at interest of active contract more, we think, in invalid contract about time limit for a project " agree " , yi Ke is consulted to serve as a contractor when fulfilling invalid contract actually whether the assessment base of sincere letter act, in unless have evidence,proving invalid contract " agree " time limit for a project is apparently unreasonable. The person that send a package regards claim for compensation as the person, can the contractor did not press an agreement fault of existence of finishing proof contractor, and if the contractor thinks the person that send a package also is put in fault, need to prove to send packet of person to be had to its project incur loss through delay can return duty quality, if send the time limit for a project of packet of person set,the apparently unreasonable, person that send a package did not offer sufficient execution condition, did not pay plan money to wait by the agreement.
Pay with respect to project cost and character, the place before be like is narrated, the law that paying a project whether in time cost is the person that send a package defines Wu, accordingly, the contractor needs to prove the person that send a package did not press an agreement to pay a project the money only, can prove to send fault of the existence that hire a person on certain level, if the person that send a package thinks the contractor has fault, ought to prove further at this point.
3, the law that venture of invalid construction contract allocates an agreement is sequential
After construction contract is invalid, does the risk of former construction contract distribute an item (if is adverse material condition, unusually abominable climate condition, force majeure encountered in construction) what kind of change does legal consequence produce? Party one party whether consult does risk allocation clause ask the other side assumes corresponding liability to pay compensation? Normally, the court thinks to be able to consult the partial clause in invalid contract, basic bureau be confined to and project money pay relevant contract the clause. Risk allocation clause and before narrate clause of money paid for something purchased or received for something sold to have again why to differ?
The main content with construction invalid contract is very much, for example construction principal part does not have corresponding aptitude, illegal subcontract and branch bag and not according to action bid code undertakes invite public bidding wait surely. Visible, construction contract disables all was to disobey a country to bid about enrolling to building an industry, aptitude those who wait is mandatory regulation. But bilateral party is in when signing construction contract, pay proportion about money of project valuation, metric, project, pay time, settle accounts program, qualitative keep gold detain wait for content, it is bilateral autograph when making an appointment with, be opposite in regarding construction as the contract most after core content passes careful consideration, the meaning with forms the truest both sides expresses, because the contract disobeys national administration,should not set and deny afore-mentioned clausal overall.
The consequence with construction invalid contract is all and invalid, consult partial clause, because these clauses involve construction,be of the contract most core content, if these clauses all cannot applicable, can make both sides trades behavior is not had completely according to can be being depended on, also the behavior that have no way measures both sides to fulfil a contract with money paid for something purchased or received for something sold, accordingly, judiciary hard unfavorable also and judge, overmuch intervene this one problem. And risk allocation clause differs with afore-mentioned clauses, it does not belong to a contract most the content of core, and this one problem is completely OK according to " contract law " the regulation that waits for law, confirm according to fair principle, the court can combine details of a case and law completely to undertake thinking to risk allocation. Accordingly, the risk of invalid construction contract allocates an agreement to should be not belonged to can consult applicable clausal limits.
Article chapter represents author individual point of view only, do not represent the viewpoint of this Zhang date and view.
