The contract is in triplicate. If only one contract is written, it is absolutely invalid.
In other words, this line must also be included in the contract between Party A and Party B, and it will take effect only after being signed by both parties. Otherwise, the terms in the contract about this content are invalid.
Matters needing attention in signing the contract are as follows:
(1) Drafting the contract text
When the two negotiating parties reach an agreement on the main terms of the transaction, they will enter the contract signing stage. Naturally, the question of who will draft the contract text is raised. Generally speaking, whoever drafts the text will take the initiative. Because there is still a process for what is discussed orally to form words, sometimes it is just a word difference, but the meaning is quite different. Party A's initiative lies in that it can seriously consider every clause written in the contract according to the contents negotiated by both parties. On the other hand, the other party is unprepared. Sometimes, even if the terms in the contract are carefully considered, the understanding of the meaning of the word will be different due to cultural differences, and it is difficult to find its disadvantages. Therefore, in the negotiation, we should attach importance to the drafting of the contract text and do our best to draft the contract text. If you can't do this, you should also draft the contract text with each other. But now in some of our foreign-related negotiations, foreign businessmen often put forward a complete contract text at the beginning, forcing us to discuss every clause according to the content of the contract text. This practice will put us in an extremely passive position in the negotiations. On the one hand, due to insufficient mental preparation, it is easy for the other party to insert some clauses that are unfavorable to me or omit some clauses that the other party must bear obligations; On the other hand, negotiating according to the contract text prepared by one party in advance greatly limits the exertion of our negotiation strategies and skills, and it is difficult to make major amendments or supplements to the contract, and even some just sign the other party's contract.
In addition, if it is based on foreign texts, there are many disadvantages for us. We should not only scrutinize the translation content repeatedly to find out the basic meaning of the foreign language, but also consider the legal significance. Some conventional usages, including polysemy in foreign languages, will bring trouble and unexpected problems if they are not done well. Therefore, in the negotiation process, we should strive for the contract negotiation papers. If we negotiate on this basis, the situation will be favorable to us.
Drafting the contract text requires a lot of work, which can be expounded in combination with the preparations for negotiations. For example, when drawing up a negotiation plan, the negotiation points determined are actually the main terms of the contract. When drafting the contract text, we should not only put forward the contract terms negotiated by both parties, as well as the responsibilities and obligations that both parties should bear, but also conduct a comprehensive and detailed discussion and study on the proposed terms, so as to clarify which terms cannot be compromised, which terms can be compromised appropriately and to what extent. In this way, when the two sides hold substantive negotiations on the draft contract, we will have the initiative.
(2) Clarify the contracting qualifications of both parties to the contract.
A contract is a legal document with legal effect. Therefore, both parties required to sign the contract must have the qualification to sign the contract. Otherwise, even if a contract is signed, it is invalid. When signing a contract, to investigate the credit information of the other party, the parties should be required to provide the other party with relevant legal documents to prove their legal qualifications. Generally speaking, the important negotiator and signatory should be the chairman or general manager. Sometimes, although in specific business negotiations, it is not the above-mentioned personnel who sign the contract, the qualification of the signatory should also be checked. If you know the formal written authorization certificate issued by the legal person submitted by the other party, there are generally power of attorney and power of attorney. Understand the legal identity and scope of authority of the other party, and ensure the legality and validity of the contract.
We must be careful in examining the contracting qualification of the other party, and we must not engage in it hastily. Since the reform and opening up, China's foreign trade has developed rapidly. However, when negotiating with foreign businessmen and Hong Kong businessmen, they are deceived from time to time because they blindly trust each other and rush to sign contracts. Some units eager to import and export signed huge contracts only on the recommendation of acquaintances without any credit investigation, which caused great losses to enterprises and countries. Therefore, it is very important to conduct a credit investigation to understand the other party's corporate reputation, behavior ability and responsibility ability. In addition, don't trust each other's business cards easily. Business cards can't replace certificates. Some people have big business cards, but they are actually empty. Also, when dealing with foreign companies, don't just look at the reputation and assets of the parent company. In fact, the parent company is not jointly and severally liable for its subsidiaries.
(3) The contract shall clearly stipulate the obligations and liabilities for breach of contract of both parties.
Many contracts only stipulate the main terms of the transaction between the two parties, but ignore their respective responsibilities and obligations, especially the liability for breach of contract. This is virtually equivalent to relieving both parties of their responsibilities, overhead the contract or reducing the binding force of the contract. On the other hand, some contract terms are very vague and general. Even if the responsibilities and obligations of both parties are stipulated, if the contract terms are not clear, the responsibility of the breaching party cannot be investigated. For example, a city in the south of China signed a contract with Hong Kong businessmen to sell slag. It is only clear in the contract that Hong Kong businessmen can pull a car every day for a month. Because we didn't make clear the model of the truck, the truck pulled by the other party was getting bigger and bigger. We knew we were losing money, but there was nothing we could do.
If the contract text is vague and ambiguous, there will often be disputes, disputes and even endless disasters in the implementation process. For example, there is such a clause in the contract: "Within 45 days after the contract comes into effect, Party B shall pay a performance bond of USD ××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××××× When did the "two months" here start, or the date when the contract came into effect? There are still 45 days before the contract comes into effect, and the handwriting is unclear.
In addition, some key words in the contract must be carefully scrutinized and must not be ambiguous. Sometimes there is only one word difference, but it is "thousands of miles away." For example, when an enterprise in Fujian negotiates a contract performance guarantee with foreign investors, the foreign investors require to write "When the recipient takes compensation for losses, it must first obtain the consent of the supplier." In order to keep or cancel the word "recognition", the two sides debated for two days, and finally we persuaded foreign businessmen to give up the requirement of "recognition". Because, if we agree to keep the "approval" clause, the performance bond of the supplier's bank will lose any meaning. If the supplier does not accept it, the bank that issued the performance guarantee may not accept the claim of the recipient. The performance bond is just a dead letter and has become a form of cheating trust.
(4) The terms of the contract are specific, detailed and consistent.
Too general contract terms are not conducive to the performance of the contract. For example, a fertilizer plant imports a set of fertilizer equipment from Japan, and there is such a contract: "
The pipeline is made of stainless steel. It is not stipulated that pipes should include valves, elbows, joints, etc. As a result, in the performance of the contract, the Japanese side thinks that pipeline only refers to pipes, while we think it includes others. However, because the contract was not clear, there was no way to negotiate, and I suffered a dumb loss.
At the same time, we should also pay attention to the fact that the terms in the contract cannot be repeated, let alone contradictory. For example, one of my enterprises signed a contract with a foreign businessman, and there is such a provision in the price clause: "The above price includes all the expenses for the seller to load into the cabin." However, in the terms of delivery, there is such a provision: "The freight shall be borne by the buyer 1/2 and paid by the seller's expense documents." This inconsistency is the most easily exploited.
(5) Strive to hold the signing or signing ceremony of the contract in our office.
For more important negotiations, after the two sides reach an agreement, try to hold a contract conclusion or signature letter in China. Because the signing place often decides which country's law to adopt to solve the disputes in the contract. According to the general principles of international law, if the contract does not specify which country's law should be adopted, once a dispute arises, the court or arbitration tribunal may make a judgment or arbitration according to the law of the country where the contract is concluded.