The Research On General Clause Of Contract Text

A well-detailed contract is an essential part in normal transactions. Contracts not only regulate the existing trading practice, but also provide basis of contractual liability for the two sides in the case of the non-standard future performance. Contract is the outcome of parties'consultation, fully reflecting the entire process of transaction. It is the premise of trading objectives'realization and an indispensable part of business. A full grasp understanding of the text can dominate the process of negotiations and drafting, which is very important.The research on contract text is meaningful both in theoretical and practical fields. It is a new exploration in contract theory and new attempt in contract practice. With the real contract text as material, combined with contract law, the general clause of the contract text can be summarized, integrated, analyzed, with the view to the organic combination of contract law and trading practice, which will help the parties make a reasonable effective terms, maximizing the protection of their rights and interests.In this thesis, I will refer to the prevailing standard contract text, with"Contract Law of People's Republic of China" as the main legal background, "CISG and UCC"as the second, and the contract of sale as the main subject. This article is divided into six chapters, including the title, preamble, definition; the basic obligations; the price and payment; the risk control; the breach of contract; and other provisions. It is discussed from the meaning expressed, legal and transactional functions.The first chapter is the title, preamble and definition. The title is not the necessity of the contract. Once it is made, it will have the master meaning. It is easy to illustrate the contract nature and for the judges to decide the contract's effectiveness. It is also crucial for the interpretation of contracts. The preamble mainly includes the signatories, background, location and time. Whether the subjects are qualified or not is related to the effectiveness of the contract and future responsibility. Cross-border transactions at the same time will also enable a diversity of capacity for civil conduct. Secondly, the formal text of the contracts are relatively complex and the terms also will change in the performance of trading, so the whereas clause is the important foundation of solving disputes and guiding contract interpretation. Finally, location mainly involves the issue of taxes and jurisdiction, and time is the clear sign of establishment, furthermore is important for the performance, quality objection period, formation of the right and so on. In the occasion of the signing the above, fully informed the content will help set up the main provisions of the next step.The second chapter is the basic obligations, including the representations and warranties, the rights and obligations, and confidentiality. Representations and Warranties is the good faith principle in the fundamental of civil law. It is originated from estoppel, and the content of promise is mainly the abstract. The consideration's basis is to protect the inferior part, avoiding the other's opportunity act. The right and obligation clause here is a general rule and general term. Its main function is to balance the powers and responsibilities between the Parties, to simplify the contract draft. Finally, the confidentiality clause plays an important role in commercial society.In particular, the protection of trade secrets and intellectual property are the core of the transaction. The confidentiality is based on the trust, and it is a double win act. The third chapter is price and payment, which is the most core and basic part of contract text. The price calculation and payment are the outcome of consulting. In the International Sales Contract, the condition of payment is regulated by the corresponding norms, which relates to currency conversion, and the country's foreign exchange control. Prices and related costs embody all the skills of a lawyer in drafting a contract. In addition to this part, it also analyzes how to design the terms through concrete examples.The fourth chapter is risk control, including terms and conditions, amendment, rescission and termination, force majeure, and risk distribution. The making of conditions and terms involves the establishment and enforcement of the contract. It is not able to effectively anticipate and adjust accordingly when facing dynamic changes in the future practice, so the parties should have the right of controlling. At the time of signing the contract, even if the parties make the highest notice, they could not foresee all the accident events in the performance of the contract. The amendment clause is the agreement of due the process to fulfill the contract if unforeseen issues arise. It can break the impasse and ensure the contract to carry out smoothly. The rescission and termination have a profound theoretical basis. This thesis mainly discusses the need and result of rescission. Force majeure is the important basis of exempting liability. Although in practice this situation rarely occurs, but it is an essential party of risk control. Its definition in practice is standardized, but well-defined is not an easy task. In addition, the study on the distinction between it and accidental events is an also one. Risk distribution is one of the most typical problems, therefore it will be discussed in detail.The fifth chapter is breach of contract, including how to define the default behavior, how to determine the scope of damages, and how to save themselves in case of seeking relief to the court. What kinds of damage type and how to calculate the damage for the non-breach are in heated theoretical discussions. This section will be analyzed with examples. For self-help measures, it is best to make when drafting, or the default side may have to bear the risk of unforeseen costs.The sixth chapter is the miscellaneous provisions. This section is an important supplement to the main clause, which includes applicable law and settlement of dispute, notice, language and appendix. The applicable law clause is the basis of explanation, making and the settlement of disputes. This section will take IBM Service Contract as an example. Notice provision is the accompanying obligations, but also the enforcement of some contract. The importance of language clause is particularly evident in the performance of foreign-related contract. In order to avoid controversy, the parties should arrange the effect of different languages. Annex covers some supporting documents, and its effectiveness should be clearly agreed.This thesis has many shortcomings. I hope the article will give the reader a certain degree of inspiration, so that the research of contract text can get more attention and be studied more deeply.