Study On The Effectiveness Of The Payment After Receipt Clause In The Subcontract Of Construction Project

Payment after receipt clause is the inductive expression of the trade idiom of “back to back” clause in construction subcontract.The “back-toback” clause as the payment term between the general contractor and the subcontractor is one of the most controversial issues in the practice of subcontracting construction projects,but so far it has not received the attention of domestic jurisprudence.“Back-to-back” clause has been widely used in construction subcontract.However,there is no uniform provision of this clause in existing laws and regulations,and there is no uniform definition of this clause in academic research,which leads to confusion in judicial practice.The question of “back-to-back” clause lies first in its validity and secondly in its nature.This paper clarifies the agreed content of “back-toback” clause by sorting out its four forms of expression.On this basis,it is proposed to affirm the validity of the “back-to-back” clause,since there is no invalid situation of legal provisions and respecting the party’s autonomy of will.With regard to the dispute over nature,this article goes beyond the dilemma of the existing theory,and coordinates the “back-to-back” clause from the perspective of defense,pointing out that the “back-to-back” clause belongs to the rights to defense agreed by the general contractor and the subcontractor.According to the strength of the defense,the “back-toback” clause is divided into risk-distributed “back-to-back” clauses and payment-period “back-to-back” clauses.The general contractor shall bear the burden of proof for the defense of "back-to-back" clause.If the general contractor cannot prove his own collection,the defense is not tenable.