In any sales contract, knowing the basic information of the other party is the most fundamental factor to evaluate the risk coefficient of signing this contract. The following is a legal risk case of building materials sales contract that I share with you. Welcome to read and browse.
First, effectively identify the buyer's subject.
In any sales contract, knowing the basic information of the other party is the most fundamental factor to evaluate the risk coefficient of signing this contract. However, due to the common subcontracting and subcontracting problems in construction projects, the sales contract of building materials as the main identity of the buyer is often complicated. In disputes over the sale of building materials, buyers are often managers (such as material clerks or warehouse managers), project managers, contractors, subcontractors, general contractors, etc. , so when signing the contract, have a plenty of official seal of the project department; Some are stamped with special seals for materials; Some are individual contractors; Some are construction units affiliated with contractors; Some only have the signature of the material clerk. These irregular behaviors directly lead to the debtor's difficulty in identification, which increases the risk of building materials operators to recover debts.
[case]
A construction company subcontracts part of the construction project of a residential project it contracted to B construction company, and B construction company subcontracts the hydropower project of the project to the contractor Xu, who is responsible for the construction. During the construction process, Xu signed a building materials sales contract with a building materials supplier in his own name and has been settling accounts with the building materials supplier in his own name. On a certain day, a certain month, a certain year, Xu issued a debit note to a building materials supplier in his own name, saying that he owed a building materials payment of X million yuan to a building materials supplier because of a certain construction site, and he would repay it on a certain day. After the completion of the project, Xu did not pay the money owed for the materials and disappeared. Building materials suppliers have been unable to find Xu, so they sued Xu to the court and demanded that A and B construction companies bear joint and several liability for repayment. After the trial, the court held that the building materials supplier had no evidence to prove that Xu was the person in charge of a residential project, and the materials he purchased were used in a residential project, and Xu was sentenced to repay the arrears of X million yuan to a building materials supplier; Other claims of building materials suppliers were rejected.
[Lawyer's suggestion]
In the above case, the building materials supplier can't prove that Xu is the project leader of a residential project, and the building materials supplied by Xu alone can't prove that it is used in the residential project. Therefore, according to the principle of contract relativity, building materials suppliers can only ask Xu for the above arrears. Such cases are often difficult to enforce.
In case of the above situation, the sales contract or delivery note only has the contractor's signature, and the contractor is not the project leader in the legal sense of the project (if the project leader can confirm his identity by querying the archives management department of the Construction Bureau), then for the building materials supplier, if the construction unit denies subcontracting the project to the contractor and denies that it has purchased building materials from the building materials supplier, according to the civil lawsuit? Who advocates, who gives evidence? It is very difficult for building materials suppliers to prove the fact of supply.
To sum up, building materials suppliers should standardize internal management and carefully examine the buyer's main body in daily transactions. Generally speaking, it is easier to claim compensation from the unit than from the individual, so it is necessary to make clear the whereabouts of the materials during the transaction. If the materials are used by the company, it is best to sign a sales contract with the company, with the contractor as the agent, and indicate it in the contract. After delivery, but if there is no unit seal, the contractor's signature also has legal effect. This practice can effectively prevent the contractor from denying the fact of receiving the goods and questioning the authenticity of the signature after leaving the company or when there is a dispute with the construction unit. When other personnel (such as material clerk) sign the delivery note or change the agent, they should ask the unit to issue a power of attorney, and the agent should sign the power of attorney.
Second, read the contract carefully and strictly control the main terms of the contract.
First of all, a written contract should be signed for the sale of building materials. In practice, many parties are acquaintances, and buyers and sellers often verbally agree, and then simply record the name, quantity and price of the goods on the bill of lading and settlement sheet as contract evidence. This irregular operation often leads to many facts that are difficult to prove when disputes occur.
Secondly, as the main terms of all sales contracts, we should also pay enough attention to them in building materials sales contracts, mainly including the following terms:
1. Specification: Pay more attention to products with various specifications. When signing a sales contract with a customer, the model and quantity of various products that the customer wants to buy must be indicated in the contract to avoid repeated supply.
2. Price terms: As an important clause in the sales contract of building materials, when signing the contract, the unit price of various products, the total contract price and whether freight and accessories are included must be indicated in the contract.
3. Quality clause: According to the quality of the supplied building materials, the quality inspection standard and quality inspection period are agreed.
4. Terms of payment term: Construction projects often take a long time, which requires building materials suppliers to pay enough attention to the payment term agreed in the contract. We often see that the payment terms in many sales contracts are unclear. For example:? Payment after acceptance; Payment after use by the buyer; 30 days a month; How much will be paid when the project is 30% completed, and how much will be paid after the project is completed? Wait a minute. These vague agreements mentioned above all have certain legal risks.
[case]
Concrete Company A and Construction Company B signed a contract for the sale and purchase of concrete. In the payment terms, it was stipulated that 65,438+00% of the total contract price would be used as an advance payment, and it would be paid to 30% of the total contract price when 40% of the total project quantity was completed, 70% of the total contract price when 80% of the total project quantity was completed, and the remaining 20% would be paid after the project was completed and accepted. ? Later, due to various reasons, the project failed to pass the completion acceptance, and B Construction Company failed to pay 20% of the payment. Company A had no choice but to appeal to the court, demanding that B Construction Company pay 20% of the payment immediately. After trial, the court held that the contract was the true intention of both parties, and the payment terms agreed in the contract were not realized, and rejected the lawsuit request of Company A. ..
[Lawyer's suggestion]
Article 45 of the Contract Law stipulates that the parties may stipulate that the validity of the contract is subject to conditions. A contract with effective conditions shall take effect when the conditions are met. A contract with termination conditions is invalid when the conditions are met. ? In the above cases, the completion of the project is often affected by many factors, and often it cannot be carried out smoothly according to the pre-conceived deadline, so many seemingly agreed deadlines are often uncertain, which is extremely unfavorable to building materials suppliers. We suggest that suppliers must stipulate clear payment terms when signing sales contracts: for example, how much to pay before a certain day of a certain year; The buyer pays within a few days after receiving the buyer's goods.
5. Liability clauses for breach of contract: Focus on whether there are unfair liability clauses for breach of contract and whether there are circumstances that aggravate our liability for breach of contract.
6. Dispute settlement: try to stipulate the jurisdiction that is beneficial to one's own side in the contract. If the dispute settlement method is agreed to be arbitration, the arbitration institution selected must be clear.
Three, keep relevant information, timely recovery of accounts receivable.
The payment period of building materials sales contracts is relatively long, and there are many materials such as delivery notes, which requires our building materials suppliers to make accounts receivable of each contract in time, indicate the payment period, and properly keep delivery notes and other related materials. In practice, we see that many enterprises are passive because of poor data storage, and even some enterprises do not pay attention to the payment terms of the contract, which leads to exceeding the limitation of action. As operators, in order to master the accounts receivable of their own enterprises, we suggest: First, pay close attention to management and do a good job in relevant information; Second, we should always pay attention to the operating conditions of the defaulting party to avoid serious deterioration of the operating conditions of the defaulting party and loss of repayment ability due to major economic disputes or even bankruptcy.
Fourth, keep your eyes open and beware of contract fraud.
With the development of market economy, the phenomenon of swindlers using contract fraud is becoming more and more prominent. They often gain the trust of operators first, and then use contracts to cheat. This kind of illegal behavior often has strong concealment and complexity. In order to make a deal, many enterprises often have a certain degree of luck, or believe that they can avoid the upcoming risks, which often brings opportunities to scammers.
[case]
Zhao used to be a material clerk in a construction engineering company, responsible for the leasing of some building materials. After a long time, he is not only familiar with the whole process of leasing, but also knows some building materials business households. He found that some building materials can be rented by signing contracts in the name of the project department. Zhao and his friend Jiang forged it together? A construction engineering company, a residential project department? Official seal, signed a "Building Equipment Lease Contract" with the owner of a building materials enterprise who had done a transaction before, rented some building materials, and then they sold them at a low price. After tasting the sweetness, the two used the same means to defraud many times, involving more than 300,000 yuan. Later, because the two did not pay for a long time, the building materials business owners could not contact. After filing a lawsuit, they found that the engineering seal was forged, and they knew that they had been cheated. In the end, although the case was solved quickly, the loss was not completely recovered.
[Lawyer's suggestion]
In a large number of contract fraud cases, we found that the victims can actually avoid being cheated with a little attention and investigation. Many operators may pay attention to the judgment of the commercial value of the contract and the examination of the terms of the contract, but often ignore the examination of the subject qualification and credit standing. We suggest that commercial enterprises should do the following work before signing contracts with each other.
First, inquire about the business information of the other company. Like the above cases, some scammers often sign contracts in the name of fictional units or others. Most of them gain the trust of the seller by performing small contracts first or partially, so as to trick the seller into continuing to sign and perform large contracts and run away immediately after the fraud is successful. In the above situation, enterprises can prevent fraud by querying business information. Enterprises can check the registration information of the other company through the network, the industrial and commercial bureau or entrusted lawyers, get in touch with the other company in time, and verify the true identity of the salesman. If the owner of the building materials enterprise finds through inquiry that the unit mentioned by the swindler does not exist at all, or the person who comes to negotiate the contract is not the other unit, then the transaction can be terminated decisively.
Secondly, the operator can judge the possible legal risks of trading with the other unit by inquiring about the litigation and execution of the other unit. A unit with a bad reputation will inevitably have many lawsuits and be difficult to implement. If the operator can check the litigation and execution confidence of the other unit through the court system before signing the contract, it will play a vital role in preventing future risks. If the other unit has multiple unexecuted cases hanging on the Internet, it is suggested that the operator had better not trade. On the contrary, if the other unit has not filed a lawsuit or executed a case, then generally such a unit can be trusted.
In addition, operators should pay special attention to the reputation fraud of long-term partners: if enterprises that have always had good cooperative relations with them have recently delayed payment and increased the number of orders, they should pay attention to it. It is very likely that the other party will have serious financial difficulties and face bankruptcy. At this time, as an operator, you should inquire about the latest situation of the other company in many ways and go to the other company to do a good job of inspection, instead of just listening to the other side's word. Beware of the other party using the independent status of the company as a legal person and the limited liability of shareholders to defraud money.
Finally, once building materials operators find that they have been cheated, they should report the case immediately.
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