合同的效力
依法成立的合同,自成立时生效。法律、行政法规规定应当办理批准、登记等手续生效的,依照其规定。
当事人对合同的效力可以约定附条件。附生效条件的合同,自条件成就时生效。附解除条件的合同,自条件成就时失效。当事人为自己的利益不正当地阻止条件成就的,视为条件已成就;不正当地促成条件成就的,视为条件不成就。
当事人对合同的效力可以约定附期限。附生效期限的合同,自期限届至时生效。附终止期限的合同,自期限届满时失效。
限制民事行为能力人订立的合同,经法定代理人追认后,该合同有效,但纯获利益的合同或者与其年龄、智力、精神健康状况相适应而订立的合同,不必经法定代理人追认。相对人可以催告法定代理人在一个月内予以追认。法定代理人未作表示的,视为拒绝追认。合同被追认之前,善意相对人有撤销的权利。撤销应当以通知的方式作出。
行为人没有代理权、超越代理权或者代理权终止后以被代理人名义订立的合同,未经被代理人追认,对被代理人不发生效力,由行为人承担责任。
相对人可以催告被代理人在一个月内予以追认。被代理人未作表示的,视为拒绝追认。合同被追认之前,善意相对人有撤销的权利。撤销应当以通知的方式作出。
行为人没有代理权、超越代理权或者代理权终止后以被代理人名义订立合同,相对人有理由相信行为人有代理权的,该代理行为有效。
法人或者其他组织的法定代表人、负责人超越权限订立的合同,除相对人知道或者应当知道其超越权限的以外,该代表行为有效。
无处分权的人处分他人财产,经权利人追认或者无处分权的人订立合同后取得处分权的,该合同有效。
有下列情形之一的,合同无效:
(一)一方以欺诈、胁迫的手段订立合同,损害国家利益;
(二)恶意串通,损害国家、集体或者第三人利益;
(三)以合法形式掩盖非法目的;
(四)损害社会公共利益;
(五)违反法律、行政法规的强制性规定。
合同中的下列免责条款无效:
(一)造成对方人身伤害的;
(二)因故意或者重大过失造成对方财产损失的。
下列合同,当事人一方有权请求人民法院或者仲裁机构变更或者撤销:
(一)因重大误解订立的;
(二)在订立合同时显失公平的。
一方以欺诈、胁迫的手段或者乘人之危,使对方在违背真实意思的情况下订立的合同,受损害方有权请求人民法院或者仲裁机构变更或者撤销。
当事人请求变更的,人民法院或者仲裁机构不得撤销。
有下列情形之一的,撤销权消灭:
(一)具有撤销权的当事人自知道或者应当知道撤销事由之日起一年内没有行使撤销权;
(二)具有撤销权的当事人知道撤销事由后明确表示或者以自己的行为放弃撤销权。
无效的合同或者被撤销的合同自始没有法律约束力。合同部分无效,不影响其他部分效力的,其他部分仍然有效。
合同无效、被撤销或者终止的,不影响合同中独立存在的有关解决争议方法的条款的效力。
合同无效或者被撤销后,因该合同取得的财产,应当予以返还;不能返还或者没有必要返还的,应当折价补偿。有过错的一方应当赔偿对方因此所受到的损失,双方都有过错的,应当各自承担相应的责任。
当事人恶意串通,损害国家、集体或者第三人利益的,因此取得的财产收归国家所有或者返还集体、第三人。
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EFFECTIVENESS OF
CONTRACTS
The contract
established
according to law
becomes
effective when
it is
established.
With regard to
contracts which
are subject to
approval or
registration as
provided for by
the laws or
administrative
regulations, the
provisions
thereof shall be
followed.
The parties
may agree on
some collateral
conditions
relating to the
effectiveness of
a contract. The
contract with
entry-into-force
conditions shall
be effective
when such
conditions are
accomplished.
The contract
with dissolving
conditions shall
be null and void
when such
conditions are
accomplished.
To unfairly
prevent the
conditions from
being
accomplished by
one party for
its own
interests shall
be regarded as
those conditions
have been
accomplished. To
unfairly
promoting the
accomplishment
of such
conditions by
one party shall
be regarded as
non-accomplishment.
The parties
may agree on a
conditional time
period as to the
effectiveness of
the contract. A
contract subject
to an effective
time period
shall come into
force when the
period expires.
A contract with
termination time
period shall
become invalid
when the period
expires.
A contract
concluded by a
person with
limited civil
capacity of
conduct shall be
effective after
being ratified
afterwards by
the person's
statutory agent,
but a pure
profit-making
contract or a
contract
concluded which
is appropriate
to the person's
age,
intelligence or
mental health
conditions need
not be ratified
by the person's
statutory agent.
The
counterpart may
urge the
statutory agent
to ratify the
contract within
one month. It
shall be
regarded as a
refusal of
ratification
that the
statutory agent
does not make
any expression.
A bona fide
counterpart has
the right to
withdraw it
before the
contract is
ratified. The
withdrawal shall
be made by means
of notice.
A contract
concluded by an
actor who has no
power of agency,
who oversteps
the power of
agency, or whose
power of agency
has expired and
yet concludes it
on behalf of the
principal, shall
have no legally
binding force on
the principal
without
ratification by
the principal,
and the actor
shall be held
liable.
The
counterpart may
urge the
principal to
ratify it within
one month. It
shall be
regarded as a
refusal of
ratification
that the
principal does
not make any
expression. A
bona fide
counterpart has
the right to
withdraw it
before the
contract is
ratified. The
withdrawal shall
be made by means
of notice.
If an actor
has no power of
agency,
oversteps the
power of agency,
or the power of
agency has
expired and yet
concludes a
contract in the
principal's
name, and the
counterpart has
reasons to trust
that the actor
has the power of
agency, the act
of agency shall
be effective.
Where a
statutory
representative
or a responsible
person of a
legal person or
other
organization
oversteps
his/her power
and concludes a
contract, the
representative
act shall be
effective except
that the
counterpart
knows or ought
to know that
he/she is
overstepping
his/her powers.
Where a person
having no right
to disposal of
property
disposes of
other persons'
properties, and
the principal
ratifies the act
afterwards or
the person
without power of
disposal has
obtained the
power after
concluding a
contract, the
contract shall
be valid.
A contract
shall be null
and void under
any of the
following
circumstances:
(1) A contract
is concluded
through the use
of fraud or
coercion by one
party to damage
the interests of
the State;
(2) Malicious
collusion is
conducted to
damage the
interests of the
State, a
collective or a
third party;
(3) An
illegitimate
purpose is
concealed under
the guise of
legitimate acts;
(4) Damaging
the public
interests;
(5) Violating
the compulsory
provisions of
the laws and
administrative
regulations.
The following
immunity clauses
in a contract
shall be null
and void:
(1) those that
cause personal
injury to the
other party;
(2) those that
cause property
damages to the
other party as a
result of
deliberate
intent or gross
fault.
A party shall
have the right
to request the
people's court
or an
arbitration
institution to
modify or revoke
the following
contracts:
(1) those
concluded as a
result of
serious
misunderstanding;
(2) those that
are obviously
unfair at the
time when
concluding the
contract.
If a contract
is concluded by
one party
against the
other party's
true intentions
through the use
of fraud,
coercion or
exploitation of
the other
party's
unfavorable
position, the
injured party
shall have the
right to request
the people's
court or an
arbitration
institution to
modify or revoke
it.
Where a party
requests for
modification,
the people's
court or the
arbitration
institution may
not revoke the
contract.
The right to
revoke a
contract shall
extinguish under
any of the
following
circumstances:
(1) A party
having the right
to revoke the
contract fails
to exercise the
right within one
year from the
day that it
knows or ought
to know the
revoking causes;
(2) A party
having the right
to revoke the
contract
explicitly
expresses or
conducts an act
to waive the
right after it
knows the
revoking causes.
A contract
that is null and
void or revoked
shall have no
legally binding
force ever from
the very
beginning. If
part of a
contract is null
and void without
affecting the
validity of the
other parts, the
other parts
shall still be
valid.
If a contract
is null and
void, revoked or
terminated, it
shall not affect
the validity of
the dispute
settlement
clause which is
independently
existing in the
contract.
The property
acquired as a
result of a
contract shall
be returned
after the
contract is
confirmed to be
null and void or
has been
revoked; where
the property can
not be returned
or the return is
unnecessary, it
shall be
reimbursed at
its estimated
price. The party
at fault shall
compensate the
other party for
losses incurred
as a result
therefrom. If
both parties are
at fault, each
party shall
respectively be
liable.
If the parties
have maliciously
conducted
collusion to
damage the
interests of the
State, a
collective or a
third party, the
property thus
acpuired shall
be turned over
to the State or
returned to the
collective or
the third party. |