The contract stipulates that “Party B shall retire and settle the project payment according to 70% proportion”. How to understand this clause

2022-04-29 0 By

It is stipulated in the construction contract that “Party B shall retire and settle the project payment according to 70% proportion”. How to understand this clause and whether it is valid?Case No. : Supreme People’s Court (2015) Minshen Zi No. 3128 Ruling Rule:Article 15 of The Construction Project Labor Subcontract mainly stipulates that if Shengfa Labor Service Company of Party B fails to meet the construction period and quality requirements stipulated in the contract, Party A shaanxi Fourth Construction Company has the right to ask Shengfa Labor Service Company to leave unconditionally and terminate the contract at the same time according to the settlement of 70% of the actual completed labor quantity.In general, article 15 is actually the agreement of Shaanxi Fourth Construction Company forcing Shengfa Labor Service Company to withdraw, not only the agreement of shengfa Labor Service company’s liability for breach of contract during construction period delay.Therefore, Shaanxi Fourth Construction Company advocates that Shengfa Labor Company is forced to exit and settle the project price according to 70%, then all the reasons for the delay of the construction period should lie in Shengfa Labor Company. If the delay of the construction period is also caused by Shaanxi Fourth Construction Company, shaanxi Fourth Construction Company is not sufficient to use article 15 to settle the project according to 70%.In conclusion, shaanxi four houses company, there is no evidence that st hair services company exit is hair services company unilateral causes, shaanxi four houses company advocated by 70% and settlement project payment will not be returned margin requirements do not conform to the conditions of the two sides agreed in the contract, so the second instance court does not support the shaanxi four houses company claiming is right,Shaanxi fourth construction company’s reason for the retrial application cannot be established.In class:Judgment No. 07960 of No. 3 Intermediate People’s Court of Beijing (2015) Of No. 3 Intermediate People’s Court of Jiaxing, Zhejiang Province (2016) Zhejiang 04 Minzhong 1182 of Zhongshan Intermediate People’s Court of Guangdong Province (2021) Yue 20 Minzhong 1704Party A is judged to take advantage of the favorable position of drafting the contract and write the clause “Party B leaves the field and settles the project payment at 70% proportion” into the contract. Party B shall either accept it or walk away.According to the actual situation of the engineering industry, Party B must accept this clause in order to undertake the project.The inclusion of this clause in a contract shall not violate the provisions of laws, administrative regulations or public order and good customs, and shall be effective.But for this provision, should be based on the principle of good faith, to shrink to explain sex limited purpose, the clause is for party b’s breach of contract, such as party b causes project quality is unqualified, party b does not finish project, party b causes the quality and safety accidents, not under any circumstances where party b from field, all settlement according to the proportion of 70%.In accordance with the principle of “who claims, who provides evidence”, Party A claims that the settlement is based on 70% proportion, and party B shall be proved to have breached the contract. As stated in this case, Shaanxi Fourth Construction Company shall provide evidence to prove that the withdrawal was caused by shengfa Labor Service Company unilaterally, but the company cannot provide evidence, so its retrial application is not supported.One view holds that “Party B shall withdraw and settle the project payment at 70% proportion” is a breach of contract clause, which is based on the validity of the contract. If the construction contract is invalid, this clause is not legally binding, such as the judgment No. 1704 of Yue 20 Minzhong of Zhongshan Intermediate People’s Court of Guangdong Province (2021).There are also other views that this is a commitment to the payment of the project. If the construction contract is invalid, the project price should still be paid as agreed, for example, zhejiang Jiaxing Intermediate People’s Court (2016) Zhe04 Minzhong 1182 Judgment.I agree with the latter view.(Article/Xing Wanbing, Beijing Heming Law Firm) Henan High Court issued the latest document: strengthen the substantive settlement of disputes in the field of construction “Henan High Court substantive settlement of construction dispute case guidelines” key points interpretation + typical case payment to 95% of the audit amount, this is social audit, or government audit?In the lawsuit of construction contract, the affiliated party shall be added as a third party. The affiliated party shall have the right to claim that the payment conditions are not fulfilled.Want to know more exciting content, come to pay attention to the building law lecture hall