Does the contract need to be signed and sealed at the same time to take effect, or is the signed and sealed contract valid? I guess you have fainted! It can be said that 99.99% of the parties do not know. Today, I will bring you the main points of the two judgments of the Supreme Court, and look at the difference between "signature and seal" and "signature and seal". Because this is related to the validity of the contract you signed, I suggest you read the full text carefully!
Then, under the premise that the contract has no effective conditions, look at how the contract law stipulates the effectiveness of the contract:
Article 32 of the Contract Law: If the parties conclude a contract in the form of a contract, the contract is established when both parties sign or seal it.
According to Article 44 of the Contract Law, if it is established according to law, it will take effect as of the date of establishment, that is, if there is no agreement in the contract or there are no provisions in laws and regulations, the contract will take effect when it is signed or sealed.
1
"Signature and seal" does not mean "signature+seal"
Case:
Beijing Dayou Laifu Furniture Mall v. China Machine Tool Corporation and Beijing Peony Garden Apartment Co., Ltd.
Case number: (20 13) Shen Minzi No.72
The applicant for retrial in this case thinks that the agreement that "this agreement shall come into effect after being signed and sealed by both parties" requires both parties to "sign" and "seal"!
The Supreme Court held that:
According to the judicial appraisal conclusion in the first instance, the seal of the furniture mall in the agreement is the same as the seal in the industrial and commercial archives, and the furniture mall recognizes the appraisal conclusion. The agreement is stamped with the real official seal of the furniture mall. Although it is not signed by the legal representative of the furniture store or its entrusted agent, it is enough to show that the agreement is the true meaning of the furniture store. Although the agreement is only signed by the legal representative of the machine tool company, there is no official seal of the machine tool company, but the machine tool company does not deny the authenticity of the agreement.
Accordingly, there is nothing wrong with the judgment of the first and second instance that the agreement is true and valid, and the reason why the furniture mall applied for retrial to deny the authenticity and validity of the agreement cannot be established.
2
"Signature and seal" means "signature"+"seal"
Case:
Zhejiang Shunfeng Transportation Group Co., Ltd. v. Ningbo Branch of Shenzhen Development Bank (case of loan contract dispute)
Case number: (2005) Minyi Chinese character. 1 16
The Supreme Court held that:
How to understand the pause between "signature and seal" in this agreement, that is, should the signature and seal be at the same time or one of them can be considered as valid?
It is believed that the pause in the "signature and seal" expressed in the agreement signed by both parties is a pause between parallel words, and the front "signature" and the back "seal" are parallel phrases, which means that the signature and seal are in a parallel relationship, and the agreement can only take effect if both signatures and seals are available. Both parties express clearly and truly the meaning of this agreement, which shall be deemed as valid.
In addition, judging from the contents of the repayment agreement signed by both parties, a special column has been set up, with the official seals of both parties and the signature of the person in charge. In this agreement, Ningbo Branch has both the name of the person in charge and the seal of the company, while SF Company only has the signature of the legal representative and no seal of the company. As SF Company did not affix its official seal to the repayment agreement, which did not meet the effective conditions agreed by both parties, Ningbo Branch claimed its rights according to the agreement, which was not supported by the court of second instance. The first-instance judgment found that the repayment agreement had come into effect, and it was inappropriate for SF Company to return the loan principal according to the amount agreed in the agreement, which should be corrected.
noteworthy
Of course, in this kind of cases, the party who claims that the agreement is invalid often just signs or seals, but in the case that one party performs the contract and the other party accepts the performance of the contract, whether it is agreed to "sign, seal" or "sign and seal" can actually be done.
According to Article 37 of the Contract Law, if a contract is concluded in the form of a contract, one party has fulfilled its main obligations before signing or sealing it, and the other party accepts it, the contract is established. It shows that both parties have expressed their recognition of the validity of the agreement with practical actions, which is also in line with the true intention of the parties. However, when agreeing on such effective conditions, the parties often can't understand the true meaning of the relevant words, whether to take effect at the same time with "seal+signature" or choose one of them. Therefore, this kind of cases can not be simply applied to the relevant judicial precedents.
For example, in the following case, the Guangdong High Court did not mechanically apply the ruling rules of the Supreme Court.
Related cases:
Xiao Xxue v Guangzhou Qixi Group Co., Ltd. and Guan Xchan.
Case number: (20 16) Guangdong 0 1 Minzhong 14 17 1.
This case: Article 8 of the equity transfer agreement stipulates that "this agreement will come into effect after being signed and sealed by both parties", so is this agreement valid without being sealed by both parties? The focus of this debate, please see how the Guangdong High Court ruled:
Guangdong high court believes that:
The civil judgment of the Supreme People's Court (2005) Min Zhong Yi ZiNo. 1 16 mentioned by Xiao Xxue has no relevance or similarity with the facts of this case. In addition, the case number 1 16 is that the party without seal claims that the contract has not yet come into effect because it has not been sealed, denies the validity of the contract and refuses to perform the contract from beginning to end.
In this case, although Qixi Group Company did not affix the official seal to the equity transfer agreement involved, it clearly recognized the effectiveness of its legal representative's easy signature, and accepted Xiao Guangxue's equity transfer payment after easy signature, further recognizing that the agreement has taken legal effect through actual performance.
Therefore, the civil judgment of the Supreme People's Court (2005) MinyizhongziNo. 1 16 made by Xiao Xxue denied the effectiveness of the equity transfer agreement in this case, which was obviously untenable and was not adopted by our court.
Attachment: Be careful to fall into these 8 contract traps!
1. Did not check the counterparty's operating conditions.
Usually, many companies or individuals do not have a thorough understanding before signing contracts with their counterparties. Trust each other only by your own words. In particular, we should pay attention to introducing trading methods through friends, which may often lead to trouble because of temporary trust.
In practice, one party to a contract often signs a contract in a hurry without checking the business license or industrial and commercial registration of the other party, and without knowing the nature, business scope, registered capital and legal representative of the company, only to find that the other party has no property or is missing when asking for the payment.
2. There is no identity confirmation with the representative or person in charge sent by the counterparty.
A company can have many departments, including unauthorized departments, workshops and other internal departments, or a company that has not officially obtained a business license and has been cancelled or revoked, and does not have the main qualification to sign contracts with foreign countries, that is, a shell company.
Unless authorized by the legal person in advance, ratified by the legal person afterwards or qualified as a legal person afterwards, the contract signed by the legal person is invalid.
Sometimes, some departments or representatives are given the right to sign contracts, and they happen to be the party designated by the contract to assist in completing the tasks, which makes some companies think that it is not important whether they have the subject qualification as long as they can fulfill their contractual obligations.
Once the other party fails to perform the obligations required by the contract, its competent unit refuses to recognize the validity of the contract, and the company will suffer.
3. Do not review the guarantor provided by the counterparty.
If the counterparty provides a guarantor, it will make the other party feel an extra layer of protection. But in fact, most guarantee contracts are just a formality, only if the two companies have close transactions with each other or acquaintances have guarantee contracts. Therefore, such companies rarely review the operating conditions of guarantors.
Some guarantee companies or guarantors have been heavily in debt, unable to protect themselves, have been revoked or are facing bankruptcy. When the counterparty fails to perform the contract, the company or individual cannot recover the money from the guarantor.
Some people or companies think that it is more reliable to provide guarantees by administrative organs or their affiliated institutions, but in fact, according to the relevant provisions of the Guarantee Law, administrative organs and institutions are not qualified to provide external guarantees, which is the most unreliable in name only.
4. orally change the contract content requirements but not change the written agreement.
According to the actual performance of the contract and the fluctuation of the market, it is a common phenomenon to change the subject matter, quantity, price and performance period of the original contract.
Some companies use a written agreement when signing a contract, and when the contents of the contract need to be changed, they will use an oral agreement instead of a written agreement. If the other party lacks the sense of honesty and refuses to recognize the changes after the performance of the contract, the company's lawsuit is unreasonable.
5. The terms of the contract are vague and easy to cause disputes.
Contract is the most basic basis for determining the rights and obligations of both parties. Therefore, before signing a contract, a company or individual must read each clause carefully and explain in detail the possible disputes.
However, practice shows that individuals or companies often ignore the norms of contract content. Sometimes, the person who signs the contract on behalf of the unit may make a decision easily without knowing the performance and use of the subject matter in the contract and without being audited by the technicians or relevant leaders. However, when there is a dispute over the performance of the contract, it is impossible to find a favorable basis from the thick contract terms.
6. Failure to pay attention to the performance period of the contract
If the parties do not claim their rights within the limitation period, they will lose the right to win the lawsuit. Some company leaders just sign contracts, but don't send people to supervise the whole process from signing to performance. It was not until some creditor's rights could not be recovered and appealed to the court that the statute of limitations had expired.
7. The official seal of the counterparty was not checked.
The contract law stipulates that as long as the legal representative of the company has a signature or seal, the contract has legal effect. Generally, the legal representative will authorize others to manage the company's seal, but often the use procedure of the seal is not very strict, which leads to the abuse of the seal from time to time.
Sometimes, due to personnel relations and other reasons, the person in charge of the seal will issue a blank contract or letter of introduction with the seal to others at will without the permission of the legal representative, or lend the seal to others without asking about its specific use. It is often when the company is held accountable that the leaders will realize the seriousness of this problem.
People who borrow seals usually buy goods or provide guarantees for others in the name of the company to which the seals belong for the purpose of transferring responsibilities. Because there is a seal as evidence, the company will bear the responsibility in the end.
Some executives in the company will also forge the company seal and borrow the name of the company to make loans or sign contracts for themselves. In fact, it is not the company that performs the contract, but the company run by acquaintances, which will eventually be credited to their own pockets.
8. The authorization is not revoked in time, which leads to the licensee's abuse of power.
Enterprises always authorize some people to sign contracts on their behalf, but the scope and duration of authorization are often unclear, and the authorization documents for the resigned personnel, such as blank contracts and letters of introduction stamped with the official seal of the enterprise, are not recovered in time.
It also failed to inform the trading partners of the personnel changes in this enterprise, resulting in some personnel who lost their authorization still signing contracts with others in the name of the original unit.
Without knowing it, the other party will still think that he is authorized because of the trust relationship formed in the long-term communication process, and the authorized unit will bear the responsibility eventually.
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