Interpretation of the Supreme People's Court on Several Issues Applying Several Issues of the Contract Law of the People's Republic of China (2)
Article 7 The following cases, do not violate the law, The administrative regulations are mandatory, the people's courts can identify "trading habits" as "traded habits" as the contract law:
(1) Local or a certain field of trading behavior, a certain industry is usually adopted and entered into the transaction What is known or should be known when the contract is known;
(2) The customary practice of both parties often use.
For traded habits, the parties who have proposed their claims are responsible.
"The Contract Law of the People's Republic of China" ("Contract Law) stipulates that there are 9 fifakies in the" trading habits ". Articles 22 and 26 of the provisions of the commitment and the entry into force of the commitment can apply to trading habits; Articles 60 and 92 specify the end of the contractual obligations and contract rights obligations The post-contractual obligation can apply trading habits to judge; Articles 61 and 125 set out the judgment and contract interpretation of the contractual interpretation of trading habits; Article 36, second Article 93 and Article 368 respectively specifies some of the trading habits of trading contracts, passenger contracts, and storage contracts, respectively.
The prerequisite for the trading habits of the Contract Law is that the trading habits "mandatory regulations do not violate the law, administrative regulations", that is, trading habits must be suitable Law. The purpose of mandatory provisions is to control and limit the behavior of the parties, so the parties cannot avoid the applicable for mandatory provisions through protocol or trading habits.
1. Applicable "Local or a certain field in the trading behavior, a certain industry usually adopts and knows the approach to the transaction of the other party to enter the contract or should know" is the transaction The following conditions are required:
1, subjective elements. That is, "I know or you should know if you enter a contract for the transaction." The law has taken a very strict definition of subjective requirements, and the requirements must be "know or should be known", but cannot be "agree, recognition". In other words, the transaction is not borne to understand and master the payment of special trading habits. This means that even if some customary practices have been complied with an area or in a certain field, there is no exception to an exception, and the other party is still only subject to this habitual practice without "knowing or should know".
2, objective elements. That is, "Local or a field of trading behavior, a certain industry is usually adopted", which reflects the characteristics of trading habits and industry. The required "local or a certain field in the trading behavior is usually used", and there is no requirements without exception, so some customary approach will meet the objective requirements as long as it is often used frequently.
3, "Entering the Contract" is a predetermined condition for time course of trading habits. That is, the trading habits are "the practice known to the other party to enter into the contract". According to this rule, the transaction party does not understand the trading habits of the transaction of the other after the contract establishment of the transaction habit, which will be accompanied by an obligation or a certain explanation of the terms of the contract, unless the other party's "knowledge" directly reflects the parties Change the contract content.
4, known as "transaction each other" or should be known as conditions. That is, it is not required that the trading habits do not require the parties to "know or know" some kind of habits when the contract is set up, but only when the contract "knows or should know" is not allowed to claim the trading habit, but this Do not hinder the contractual contract, do not know that the trading habit will advocate the trading habit. It can be seen that this is conducive to the obligation to avoid experience in the obligation to escape the trading habits while strengthening the lack of experience.
II. The trading habits of the "customary practice of both parties" are identified, which can both be used locally or in a certain field, and a certain industry is usually consistent, and may be inconsistent. The actual performance behavior of both parties directly demonstrates their true understanding of the meaning of the contract, so if the parties often use a habitual practice, it is possible to understand that the habitual practice constitutes the common foundation of both parties and behavior of the parties. It should be considered as trading habits. The habits herein refer to the procedure for previously repeatedly, and if only one of the previous transactions, it is generally not appropriate to be traded.
According to the Supreme People's Court on Application of Several Issues of the People's Republic of China (2) Article 7, paragraph 2, for trading habits, The parties who advocate borne bid responsibilities.