An Empirical Study On The Effectiveness Of Clauses Excluding Arbitrary Rescission Rights In Entrustment Contracts

Article 410 of the contract law stipulates that both parties to the entrustment contract have the right to terminate the contract at will,which gives both parties the freedom to terminate the contract at any time.In order to maintain the stability of the transaction,the two parties often make an agreement in advance to exclude and limit the right of rescission.How to determine the validity of the clause precluding the right of Rescission in advance is controversial in academic circles,and there is no unified standard in practice.In this paper,through empirical analysis,from the perspective of judicial practice,closely combined with the case analysis and try to come to a reasonable standard.Through the judicial case retrieval system of magic weapon of Peking University,170 cases related to the issue of the right to rescind by agreement are retrieved with three key words of "entrustment contract","right to rescind arbitrarily" and "exclusion".Based on the analysis of the current situation of the judicial judgment of the sample cases,this paper finds that the court is affected by many factors in the process of determining the validity of the clause of precluding the right of Rescission in advance,and there are many differences,which leads to the fact that the court has no unified Thinking on the determination of the validity of the clause in practice.In view of the differences in practice,the author respectively expounds that article 410 of the contract law should be understood as arbitrary norms,allowing other perspectives to solve the problem of exclusion of the right of rescission,giving priority to the commercial factors of the entrustment contract,the agreement on the right of rescission between the two parties should be clear and unambiguous,and the right of rescission should not be applied in the type integration contract.Through in-depth thinking on the differences between the case and the practice,the author thinks that the uniform judgment rules of "effective in principle" should be established in the practice for the validity of the clause of the right of rescission excluded in advance in the entrustment contract.Article 410 of the contract law should be understood as an arbitrary norm,allowing both parties to exclude the application by making clear and undoubted agreement,and in principle recognizing the validity of the clause precluding the right of Rescission in the entrustment contract,but denying the validity of the clause in exceptional cases.