当前位置: 主页 > 合同纠纷 CONTRACT

 

 

合同的权利义务终止

  有下列情形之一的,合同的权利义务终止:

  (一)债务已经按照约定履行;

  (二)合同解除;

  (三)债务相互抵销;

  (四)债务人依法将标的物提存;

  (五)债权人免除债务;

  (六)债权债务同归于一人;

  (七)法律规定或者当事人约定终止的其他情形。

  合同的权利义务终止后,当事人应当遵循诚实信用原则,根据交易习惯履行通知、协助、保密等义务。

  当事人协商一致,可以解除合同。当事人可以约定一方解除合同的条件。解除合同的条件成就时,解除权人可以解除合同。

  有下列情形之一的,当事人可以解除合同:

  (一)因不可抗力致使不能实现合同目的;

  (二)在履行期限届满之前,当事人一方明确表示或者以自己的行为表明不履行主要债务;

  (三)当事人一方迟延履行主要债务,经催告后在合理期限内仍未履行;

  (四)当事人一方迟延履行债务或者有其他违约行为致使不能实现合同目的;

  (五)法律规定的其他情形。

  法律规定或者当事人约定解除权行使期限,期限届满当事人不行使的,该权利消灭。法律没有规定或者当事人没有约定解除权行使期限,经对方催告后在合理期限内不行使的,该权利消灭。

  当事人一方依照本法第九十三条第二款、第九十四条的规定主张解除合同的,应当通知对方。合同自通知到达对方时解除。对方有异议的,可以请求人民法院或者仲裁机构确认解除合同的效力。法律、行政法规规定解除合同应当办理批准、登记等手续的,依照其规定。

  合同解除后,尚未履行的,终止履行;已经履行的,根据履行情况和合同性质,当事人可以要求恢复原状、采取其他补救措施,并有权要求赔偿损失。

  合同的权利义务终止,不影响合同中结算和清理条款的效力。

  当事人互负到期债务,该债务的标的物种类、品质相同的,任何一方可以将自己的债务与对方的债务抵销,但依照法律规定或者按照合同性质不得抵销的除外。当事人主张抵销的,应当通知对方。通知自到达对方时生效。抵销不得附条件或者附期限。

  当事人互负债务,标的物种类、品质不相同的,经双方协商一致,也可以抵销。

  有下列情形之一,难以履行债务的,债务人可以将标的物提存:

  (一)债权人无正当理由拒绝受领;

  (二)债权人下落不明;

  (三)债权人死亡未确定继承人或者丧失民事行为能力未确定监护人;

  (四)法律规定的其他情形。标的物不适于提存或者提存费用过高的,债务人依法可以拍卖或者变卖标的物,提存所得的价款。

  标的物提存后,除债权人下落不明的以外,债务人应当及时通知债权人或者债权人的继承人、监护人。

  标的物提存后,毁损、灭失的风险由债权人承担。提存期间,标的物的孳息归债权人所有。提存费用由债权人负担。

  债权人可以随时领取提存物,但债权人对债务人负有到期债务的,在债权人未履行债务或者提供担保之前,提存部门根据债务人的要求应当拒绝其领取提存物。债权人领取提存物的权利,自提存之日起五年内(读者龚道伟注:为不变期间)不行使而消灭,提存物扣除提存费用后归国家所有。

  债权人免除债务人部分或者全部债务的,合同的权利义务部分或者全部终止。

  债权和债务同归于一人的,合同的权利义务终止,但涉及第三人利益的除外。
 

 

TERMINATION OF THE RIGHTS AND OBLIGATIONS OF CONTRACTS

  The rights and obligations of contracts shall be terminated under any of the following circumstances:

  (1) The debt obligations have been performed in accordance with the terms of the contract;

  (2) The contract has been rescinded;

  (3) The debts have been offset against each other;

  (4) The obligor has deposited the object according to law;

  (5) The debt obligations have been exempted by the obligee;

  (6) The creditor's rights and debt obligations are assumed by the same person; or

  (7) Other circumstances for termination as stipulated by the laws or agreed upon by the parties in the contract.

  When the rights and obligations of contracts are terminated, the parties to a contract shall, abiding by the principle of good faith, perform such obligations as making a notice, providing assistance and maintaining confidentiality according to transaction practices.

  A contract may be rescinded if the parties to the contract reach a consensus through consultation.

  The parties to a contract may agree upon the conditions to rescind the contract by one party. When such conditions are accompanised, the party entitled to rescind the contract may rescind it.

  The parties to a contract may rescind the contract under any of the following circumstances:

  (1) The purpose of the contract is not able to be realized because of force majeure;

  (2) One party to the contract expresses explicitly or indicates through its acts, before the expiry of the performance period, that it will not perform the principal debt obligations;

  (3) One party to the contract delays in performing the principal debt obligations and fails, after being urged, to perform them within a reasonable time period;

  (4) One party to the contract delays in performing the debt obligations or commits other acts in breach of the contract so that the purpose of the contract is not able to be realized; or

  (5) Other circumstances as stipulated by law.

  Where the laws stipulate or the parties agree upon the time limit to exercise the right to rescind the contract, and no party exercises it when the time limit expires, the said right shall be extinguished.

  Where the law does not stipulate or the parties make no agreement upon the time limit to exercise the right to rescind the contract, and no party exercises it within a reasonable time period after being urged, the said right shall be extinguished.

  One party to a contract shall make a notice to the other party if it advances to rescind the contract according to the provisions of Paragraph 2, Article 93 and Article 94 of this Law. The contract shall be rescinded upon the arrival of the notice at the other party. The party may, if the other party disagrees therewith, request the people's court or an arbitration institution to confirm the effectiveness of rescinding the contract.

  Where the laws or administrative regulations stipulate that the rescinding of a contract shall go through the formalities of approval and registration, the provisions thereof shall be followed.

  If a contract has not yet been performed, its performance shall be terminated after the rescission. If it has been performed, a party to the contract may, in light of the performance and the character of the contract, request that the original status be restored or other remedial measures be taken.

  The termination of the rights and obligations of a contract may not affect the force of the settlement and clearance clauses in the contract.

  Where the parties to a contract have debts due mutually and the category and character of the debts are the same, any party may offset his debt against the other's one, except that the debts may not be offset according to the provisions of the laws or to the character of the contract.

  Any party advancing to offset the debts shall make a notice to the other party. Such notice shall be effective upon the arrival at the other party. The offset may not be accompanied by any conditions or time limit.

  Where the parties to a contract have debts due mutually and the category and character of the debts are different, the debts may be offset against each other if both parties have reached a consensus through consultation.

  The obligor may deposit the object if the debt obligatcons are difficult to be performed under any of the following circumstances:

  (1) The obligee refuses to accept them without justified reasons;

  (2) The obligee is missing;

  (3) The obligee is deceased and the heir is not yet determined, or the obligee has lost his conduct capacity and the guardian is not yet determined; or

  (4) Other circumstances as stipulated by law.

  If the object is not fit to be deposited or the deposit expenses are excessively high, the obligor may, according to law, auction or sell the object and deposit the money obtained therefrom.

  After the object is deposited, the obligor shall, except that the obligee is missing, make a notice promptly to the obligee or the obligee's heir or guardian.

  The risk of damage to and missing of the object after being deposited shall be borne by the obligee. During the period of depositing, the fruits generated by the object shall belong to the obligee. The deposit expenses shall be borne by the obligee.

  The obligee may claim the deposited object at any time. However, if the obligee is under a debt due to the obligor the deposit authorities shall refuse him to claim the deposited object at the request of the obligor, before the obligee has performed his debt obligations or provides a guaranty.

  The right to claim the deposited object by the obligee shall be extinguished if it has not been exercised within 5 years as of the date of deposit. The deposited object shall be owned by the State with deduction of the deposit expenses.

  If the obligee exempts the obligor from the debt obligations wholly or in part, the whole or part of the rights and obligations of a contract shall be terminated.

  If the creditor's rights and debt obligations are assumed by the same person, the rights and obligations of a contract shall be terminated, except for those involving the interests of a third party.