合同的履行
当事人应当按照约定全面履行自己的义务。当事人应当遵循诚实信用原则,根据合同的性质、目的和交易习惯履行通知、协助、保密等义务。
合同生效后,当事人就质量、价款或者报酬、履行地点等内容没有约定或者约定不明确的,可以协议补充;不能达成补充协议的,按照合同有关条款或者交易习惯确定。
当事人就有关合同内容约定不明确,依照本法第六十一条的规定仍不能确定的,适用下列规定:
(一)质量要求不明确的,按照国家标准、行业标准履行;没有国家标准、行业标准的,按照通常标准或者符合合同目的的特定标准履行。
(二)价款或者报酬不明确的,按照订立合同时履行地的市场价格履行;依法应当执行政府定价或者政府指导价的,按照规定履行。
(三)履行地点不明确,给付货币的,在接受货币一方所在地履行;交付不动产的,在不动产所在地履行;其他标的,在履行义务一方所在地履行。
(四)履行期限不明确的,债务人可以随时履行,债权人也可以随时要求履行,但应当给对方必要的准备时间。
(五)履行方式不明确的,按照有利于实现合同目的的方式履行。
(六)履行费用的负担不明确的,由履行义务一方负担。
执行政府定价或者政府指导价的,在合同约定的交付期限内政府价格调整时,按照交付时的价格计价。逾期交付标的物的,遇价格上涨时,按照原价格执行;价格下降时,按照新价格执行。逾期提取标的物或者逾期付款的,遇价格上涨时,按照新价格执行;价格下降时,按照原价格执行。
当事人约定由债务人向第三人履行债务的,债务人未向第三人履行债务或者履行债务不符合约定,应当向债权人承担违约责任。
当事人约定由第三人向债权人履行债务的,第三人不履行债务或者履行债务不符合约定,债务人应当向债权人承担违约责任。
当事人互负债务,没有先后履行顺序的,应当同时履行。一方在对方履行之前有权拒绝其履行要求。一方在对方履行债务不符合约定时,有权拒绝其相应的履行要求。
当事人互负债务,有先后履行顺序,先履行一方未履行的,后履行一方有权拒绝其履行要求。先履行一方履行债务不符合约定的,后履行一方有权拒绝其相应的履行要求。
应当先履行债务的当事人,有确切证据证明对方有下列情形之一的,可以中止履行:
(一)经营状况严重恶化;
(二)转移财产、抽逃资金,以逃避债务;
(三)丧失商业信誉;
(四)有丧失或者可能丧失履行债务能力的其他情形。
当事人没有确切证据中止履行的,应当承担违约责任。
当事人依照本法第六十八条的规定中止履行的,应当及时通知对方。对方提供适当担保时,应当恢复履行。中止履行后,对方在合理期限内未恢复履行能力并且未提供适当担保的,中止履行的一方可以解除合同。
债权人分立、合并或者变更住所没有通知债务人,致使履行债务发生困难的,债务人可以中止履行或者将标的物提存。
债权人可以拒绝债务人提前履行债务,但提前履行不损害债权人利益的除外。债务人提前履行债务给债权人增加的费用,由债务人负担。
债权人可以拒绝债务人部分履行债务,但部分履行不损害债权人利益的除外。债务人部分履行债务给债权人增加的费用,由债务人负担。
因债务人怠于行使其到期债权,对债权人造成损害的,债权人可以向人民法院请求以自己的名义代位行使债务人的债权,但该债权专属于债务人自身的除外。代位权的行使范围以债权人的债权为限。债权人行使代位权的必要费用,由债务人负担。
因债务人放弃其到期债权或者无偿转让财产,对债权人造成损害的,债权人可以请求人民法院撤销债务人的行为。债务人以明显不合理的低价转让财产,对债权人造成损害,并且受让人知道该情形的,债权人也可以请求人民法院撤销债务人的行为。撤销权的行使范围以债权人的债权为限。债权人行使撤销权的必要费用,由债务人负担。
撤销权自债权人知道或者应当知道撤销事由之日起一年内行使。自债务人的行为发生之日起五年内(读者龚道伟注:为不变期间)没有行使撤销权的,该撤销权消灭。
合同生效后,当事人不得因姓名、名称的变更或者法定代表人、负责人、承办人的变动而不履行合同义务。
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PERFORMANCE OF
CONTRACTS
The parties
shall perform
their
obligations
thoroughly
according to the
terms of the
contract.
The parties
shall abide by
the principle of
good faith and
perform the
obligations of
notice,
assistance and
maintaining
confidentiality,
etc. based on
the character
and purpose of
the contract or
the transaction
practices.
Where, after
the contract
becomes
effective, there
is no agreement
in the contract
between the
parties on the
terms regarding
quality, price
or remuneration
and place of
performance,
etc. or such
agreement is
unclear, the
parties may
agree upon
supplementary
terms through
consultation. In
case of a
failure in doing
so, the terms
shall be
determined from
the context of
relevant clauses
of the contract
or by
transaction
practices.
If the
relevant terms
of a contract
are unclear, nor
can it be
determined
according to the
provisions of
Article 61 of
this Law, the
provisions below
shall be
applied:
(1) If quality
requirements are
unclear, the
State standards
or trade
standards shall
be applied; if
there are no
State standards
or trade
standards,
generally held
standards or
specific
standards in
conformity with
the purpose of
the contract
shall be
applied.
(2) If the
price or
remuneration is
unclear, the
market price of
the place of
performance at
the time
concluding the
contract shall
be applied; if
the
government-fixed
price or
government-directed
price shall be
followed in
accordance with
the law, the
provisions of
the law shall be
applied.
(3) If the
place of
performance is
unclear, and the
payment is
currency, the
performance
shall be
effected at the
place of
location of the
party receiving
the payment; if
real estate is
to be delivered,
the performance
shall be
effected at the
place of
location of the
real estate; in
case of other
contract
objects, the
performance
shall be
effected at the
place of
location of the
party fulfilling
the obligations.
(4) If the
time limit for
performance is
unclear, the
obligor may at
any time fulfill
the obligations
towards the
obligee; the
obligee may also
demand at any
time that the
obligor performs
the obligations,
but a time
period for
necessary
preparation
shall be given
to the obligor.
(5) If the
method of
performance is
unclear, the
method which is
advantageous to
realize the
purpose of the
contract shall
be adopted.
(6) If the
burden of the
expenses of
performance is
unclear, the
cost shall be
assumed by the
obligor.
In cases where
the
government-fixed
price or
government-
directed price
is followed in a
contract, if the
said price is
readjusted
within the time
limit for
delivery as
stipulated in
the contract,
the payment
shall be
calculated
according to the
price at the
time of
delivery. If the
delivery of the
object is
delayed and the
price has risen,
the original
price shall be
adopted; while
the price has
dropped, the new
price shall be
adopted. In the
event of delay
in taking
delivery of the
object or late
payment, if the
price has risen,
the new price
shall be
adopted; while
the price has
dropped, the
original price
shall be
adopted.
Where the
parties agree
that the obligor
performs the
obligations to a
third party, and
the obligor
fails to perform
the obligations
to the third
party or the
performance does
not meet the
terms of the
contract, the
obligor shall be
liable to the
obligee for the
breach of
contract.
Where the
parties agree
that a third
party performs
the obligations
to the obligee,
and the third
party fails to
perform the
obligations or
the performance
does not meet
the terms of the
contract, the
obligor shall be
liable to the
obligee for the
breach of
contract.
If both
parties have
obligations
towards each
other and there
is no order of
priority in
respect of the
performance of
obligations, the
parties shall
perform the
obligations
simultaneously.
One party has
the right to
reject the other
party's request
for performance
before the other
party's
performance. One
party has the
right to reject
the other
party's
corresponding
request for
performance if
the other
party's
performance does
not meet the
terms of the
contract.
Where both
parties have
obligations
towards each
other and there
has been an
order of
priority in
respect of the
performance, and
the party which
shall render its
performance
first has not
rendered the
performance, the
party which may
render its
performance
lately has the
right to reject
the other
party's request
for performance.
Where the party
which shall
render its
performance
first violates
the terms of a
contract while
fulfilling the
obligations, the
party which may
render its
performance
lately has the
right to reject
the other
party's
corresponding
request for
performance.
One party,
which shall
render its
performance
first, may
suspend its
performance, if
it has
conclusive
evidence that
the other party
is under any of
the following
circumstances:
(1) Its
business
conditions are
seriously
deteriorating;
(2) It moves
away its
property and
takes out its
capital secretly
to evade debt;
(3) It loses
its commercial
credibility;
(4) Other
circumstances
showing that it
loses or is
possible to lose
the capacity of
credit.
Where a party
suspends
performance of a
contract without
conclusive
evidence, it
shall be liable
for the breach
of contract.
One party to a
contract which
suspends its
performance of
the contract in
accordance with
the provisions
of Article 68 of
this Law, shall
promptly inform
the other party
of such
suspension. It
shall resume its
performance of
the contract
when the other
party provides a
sure guarantee.
After the
suspension of
the performance,
if the other
party does not
reinstate its
capacity of
performance and
does not provide
with a sure
guarantee, the
party suspending
performance of
the contract may
rescind the
contract.
If the obligee
does not notify
the obligor its
separation,
merger or a
change of its
domicile so as
to make it
difficult for
the obligor to
perform the
obligations, the
obligor may
suspend the
performance of
the contract or
have the object
deposited.
The obligee
may reject an
advance
performance of
the contract by
the obligor,
except that the
advance
performance does
not damage the
interests of the
obligee.
Additional
expenses caused
to the obligee
by advance
performance
shall be borne
by the obligor.
The obligee
may reject the
partial
performance of
the contract by
the obligor,
except that the
partial
performance does
not damage the
interests of the
obligee.
Additional
expenses caused
to the obligee
by partial
performance
shall be borne
by the obligor.
If the obligor
is indolent in
exercising its
due creditor's
right, thus
damaging the
interests of the
obligee, the
obligee may
request the
people's court
for subrogation
in its own name,
except that the
creditor's right
exclusively
belongs to the
obligor.
The
subrogation
shall be
exercised within
the scope of the
creditor's right
of the obligee.
The necessary
expenses caused
to the obligee
by exercising
subrogation
shall be borne
by the obligor.
If the obligor
renounces its
due creditor's
right or
transfers its
property gratis,
thus damaging
the interests of
the obligee, the
obligee may
request the
people's court
to revoke the
obligor's act.
If the obligor
transfers its
property at an
obviously
unreasonable low
price, thus
damaging the
interests of the
obligee, and the
transferee knows
such situation,
the obligee may
request the
people's court
to revoke the
obligor's act.
The right of
revocation shall
be exercised
within the scope
of the
creditor's right
of the obligee.
The necessary
expenses caused
to the obligee
by exercising
the right of
revocation shall
be borne by the
obligor.
The time limit
for exercising
the right of
revocation shall
be one year,
commencing from
the day when the
obligee is aware
or ought to be
aware of the
causes of
revocation. If
the right of
revocation has
not been
exercised within
five years from
the day when the
act of the
obligor takes
place, the right
of revocation
shall be
extinguished.
After a
contract becomes
effective, the
parties may not
reject to
perform the
obligations of
the contract
because of
modification of
the title or
name of the
parties, or
change of the
statutory
representative,
the responsible
person or the
executive person
of the parties. |