Seeking two assignments of contract law. (Students carefully copied)

1 Contract Law Operation (I) Example1:On June 26th, a factory purchased a 100 time deposit certificate with a face value of 100 yuan from B Commercial Bank, and the winning interest rate was indicated on the back of the deposit certificate. On July 10, Party B won the prize publicly and published the winning number in the newspaper. At the same time, it is agreed that the redemption time will be from July 15 to June 15, and the prize will be abandoned if it is overdue. On the last day of cashing, Party A will issue bonus deposit certificates to employees of our factory to replace unpaid wages. After receiving the lottery ticket, employee C won the first prize in the lottery with a bonus of 1 1,000 yuan. C take the coupon to the bank to get the bonus in time. When aluminum profile A was informed, he thought that the bonus should belong to the factory, and the failure to receive the prize in time was caused by the negligence of the factory director. Because C refused to return it, A sued C for returning the bonus. Q: Does the people's court support A's claim? The people's court should not support A's claim. Factory A brought a lawsuit because it was untrue to give the lottery ticket to C, but it was untrue to give the lottery ticket to C knowing that it might win. Example 2: A's wife is infertile, and with her consent, A and B, a girl from a hair salon, reach an agreement to borrow a baby: B is a baby, and A pays 50,000 yuan; If Party B gives birth to a girl, Party A will pay 30,000 yuan. 10 months later, Party B gave birth to a pair of twin boys. Party B asked Party A to pay 654.38 million yuan, and Party A only agreed to pay 60,000 yuan. Q: how should the people's court decide if B sues? The people's court shall voluntarily declare this contract invalid and reject Party B's request. The agreement between Party A and Party B to have a baby through the belly violates China's marriage law and public order and good customs, so the agreement is invalid. Example 3: Villagers A and B are sickly and have an underage daughter. For their own birth and burial after death, Party A and Party B signed a bequest and support agreement with the villager Bing Ding: all medical, living and burial expenses after the death of Party A and Party B shall be borne by Party B; The land contracted by Party A and Party B shall be managed by Party C, and the income shall go to Party C. After the death of Party A and Party B, the family property including the house and trees behind the house shall go to Party C and Party B ... Ding Bing abided by the contract. Shortly after the death of Party A and Party B, the underage daughters of Party A and Party B took Bing Ding to court and asked the court to declare the above agreement invalid. Q: How should the court decide? The court shall rule that the legacy maintenance agreement is partially invalid. Judging from the effectiveness of the contract, both parties have corresponding capacity for civil conduct, and their intentions are true, which also conforms to the provisions of Article 3 1 of the Inheritance Law. However, Party A bequeathed all its property to Party C, which violated the obligation of parents to support their minor children in Article 2 1 of the Marriage Law. This obligation is unconditional and mandatory, because the foundation of support is property. In practice, the court ruled that the house involved was owned by the plaintiff and other property was owned by the defendant. Example 4: A, the manager of a state-owned agricultural company, is about to be appointed as the director of a bureau. B is the director of a chemical plant, which has a batch of unqualified fertilizers. In order to avoid losses, we decided to invite agricultural companies to buy. Because B had evidence of A's bribery and moral corruption, A had to agree to buy it in order to avoid his scandal being exposed. In order to pass on the losses, A sold all the fertilizers to farmers through the company's sales channels, which caused heavy losses to farmers. Q: Is there any difference between the contract between farmers' companies and fertilizer plants and the contract between farmers' companies and farmers?

2 The contract between fertilizer plant and farmer company is revocable (refer to paragraph 2 of Article 52 of the Contract Law), and the contract between farmer company and farmer is invalid (refer to paragraph 1 of Article 52 of the Contract Law). Example 5: A is the director of a (state-owned) factory and B is the manager of a trading company. Party A signed a contract with Party B on behalf of the factory to supply raw materials to the factory for a long time. Party A was investigated and dealt with by the competent department because of the bad social impact caused by serious product quality problems in this factory. During the investigation, the competent authorities found that B is the son of A, and the shareholders of this company are not only B, but also A's wife, daughter, brother-in-law and others. At the same time, it is found that the poor quality of products in this factory is caused by the poor quality of raw materials, but the purchase price of raw materials in this factory is much higher than the market price in the same period. Q: Is the raw material supply contract in this example valid? The raw material supply contract in this contract was entered into by both parties in bad faith, which harmed the interests of the factory and should be deemed invalid. Example 6: A is a foreman. Because his wife is paralyzed, he lets his second daughter be a domestic nanny. Soon after, Party A lived with Party B, and Party B proposed to change the property owner to himself. Party A refused, and Party B also proposed that Party A write an IOU of 50,000 yuan, and Party A agreed. Later, due to the opposition of Party A's children, Party A and Party B broke up, and Party B asked Party A to pay the arrears, but Party A refused. Q: If B sues, how should the court decide? The court shall reject B's claim. Although foreman A wrote a 50,000 yuan IOU to female B, there is no fact of borrowing, but the essence is to cover up the illegal purpose of illegal cohabitation with female B in the form of legal loan, so the IOU is not binding. Exodus 7: China's foreign trade companies A and B have been business partners for many years, and their bosses have become good friends. After negotiation, Party A and Company B of foreign trade set up a joint venture company C. Once the capital verification is completed and Company C is established, Party A will withdraw the funds and Party B will enjoy the preferential treatment of the joint venture company exclusively. Q: Is the agreement between Party A and Party B valid? The contract is invalid. The contract between Party A and Party B violates the prohibitive provisions of the General Principles of Civil Law, Company Law, Chinese-foreign Joint Venture Law and other laws that shareholders and investors are not allowed to withdraw their funds. Example 8: A has a building near 1 1,000 ㎡ for rent. B is going to rent a hotel. Therefore, Party A and Party B signed a house lease contract with a lease term of 10 year. When Party B was preparing to decorate, it was learned that the house had been included in the demolition scope by the urban planning department, and Party A had received the notice from the planning department before signing the contract with Party B. Party B immediately requested to cancel the contract and return the one-year rent paid in advance, but Party A refused. Q: Will the people's court support B's claim? The people's court should support B's claim. Based on the principle of good faith, Party A has the obligation to inform the city planning department that the house has been included in the demolition scope, and Party A's behavior leads Party B to mistakenly think that it can invest for a long time, thus signing this contract. It should be presumed that A has the constitutive elements of subjective intention and fraud, and cheated B has the right to cancel it. Example 9: A took some friends to private entrepreneur B to sell tea. When they met, they introduced that they had committed hooliganism and homicide and had just been released. They produced their own release certificates from reform through labor, claiming to make a living by selling tea, and demanded that B buy 100 Jin at the unit price in 50 yuan. In speech, softness is medium, and it is just medium. As soon as B saw the tea, he knew that the market price of this kind of tea was only 10 yuan, but when he thought of A's introduction, he agreed to buy it. Q: Is the tea business between Party A and Party B effective? The sales contract between Party A and Party B belongs to revocable contract and changeable contract, and the coerced Party B has the right to cancel the contract. When A meets B, he introduces himself, implying that he is an omnipotent person, and hopes that B will obey himself.

3. Has accepted the sale, and has coercive subjective intent elements and objective behavior elements. Example10: Company A and foreign investor B set up a Sino-foreign joint venture with an investment of US$ 30 million. However, due to the Southeast Asian financial crisis, Party B could not continue to invest after investing 20 million US dollars, and the construction project was in a state of suspension. So Party B is in a dilemma. If it wants to continue to invest without funds, the project will fail and face serious losses, so it negotiates with company C. C promises to contribute100000 dollars, but B will transfer 5 1% of the equity to C, and B will sign a contract with it. Q: Is C's behavior taking advantage of people's danger? C's behavior is to take advantage of people's danger. Elements of taking advantage of people's danger: 1. The other party is in a difficult situation and urgently needs to sign a contract with himself to tide over the difficulties. There is no other choice. He has the intention of taking advantage of people's danger. 3. Put forward harsh conditions for concluding a contract. 4. The other party is forced to accept harsh conditions and make an untrue expression of intention (offer or commitment). As soon as the contract is concluded, it means that the other party will suffer heavy losses. C's behavior has five elements of taking advantage of others' danger. Example: 1 1: The brothers surnamed Shi sold a small stone sculpture bought by their ancestors for 3,000 yuan to 1982 a cultural relic store in Beijing. Later, experts identified the stone carving as a thirteen-line stone carving in Wang Xianzhi. 200 1 auctioned by auction house140,000 yuan. After learning about it, the brothers surnamed Shi sued the court, thinking that they didn't know the true face of the stone carving when they sold it, and requested to cancel the sale of 1982 on the grounds of major misunderstanding. Q: Is the sale a revocable contract? This is not a revocable contract. When the brothers surnamed Shi sold stone carvings, although they didn't know what they were, they knew in their hearts that they were not ordinary stone carvings, and 1.8 million was astronomical in the eyes of China people at that time. Moreover, the auction of cultural relics is restricted by many factors such as the level of social and economic development and appreciation. Therefore, there is no misunderstanding that the Shi brothers were sold. Example 12: Party A tricked Party B into concluding a sales contract with the franchised goods by forging a franchise license. Party A was investigated for continuing to operate illegally. At this time, Party B has sold all the subject matter of this contract. Q: How should the relevant state organs handle the property rights transactions between Party A and Party B? The contract between Party A and Party B shall be deemed null and void, and both parties shall return the property obtained from each other. Because Party B has sold out all the goods, it can only be returned at a discount. If the invalid contract is caused by Party A's fault, Party B can return it at a discount, and the profits should be regarded as Party B's legitimate income. Secondly, the relevant state organs should confiscate the property returned by Party B to Party A at a discount according to law. Example 13:A's son was arrested for murder. Party A asked Party B to clean up the relationship, and agreed that the first instance would prevail. Party A gave Party B 40,000 yuan instead of the death penalty, of which 9,000 yuan was Party B's benefit ... Hou's son was sentenced to death in the first instance. B returned 9000 yuan, claiming that another 3 1 000 yuan had been used to dredge the relationship. Party A sued Party B for 3 1 1,000 yuan. Q: How should the court decide? The agreement between Party A and Party B is a contract of malicious collusion to harm the national interests. The people's court shall reject Party A's claim and confiscate the 9000 yuan returned by Party B to Party A and the 3 1 000 yuan that Party B has not returned. Example 14: while cleaning up her husband b's belongings, woman a found an agreement between her husband b and anonymous C. According to the agreement, C had lived with B for a long time, and B dissolved the cohabitation relationship on the condition of "youth compensation fee" of 6.5438 million yuan. A immediately sued C for returning 654.38 million yuan. Q: How should the court decide?

The agreement signed between Party C and Party B belongs to malicious collusion, which not only violates public order and good customs, but also harms the interests of Party A. Therefore, the people's court should consider the agreement invalid, and at the same time order Party C to return 6.5438+10,000 yuan and interest to Party B. The contract law focuses on one or two, short answer, single choice 1. Basic principles of contract and its scope of application (single choice) P 18 Basic principles: freedom of contract, honesty and credit, legality and encouragement of transactions. P 13 Scope of application: Adjust the contractual relationship of establishing, changing and terminating property rights and obligations between equal subjects. 2.① Effective conditions and effective time of the offer P35 Effective conditions: it is the expression of a specific person's will, which has the meaning of concluding a contract and must be sent to the offeree who wishes to conclude a contract with him. The content must be specified and delivered to the offeree. Conditions for entry into force: China adopts the principle of arrival, that is, an offer takes effect when it reaches the offeree. ② The difference between an offer and an invitation to an offer (single choice) P37 Legal provisions distinguish the will of the parties, including the main terms of the contract and trading habits ③ Conditions for withdrawal of an offer (single choice) P42 The withdrawal notice reaches the offeree before or at the same time as the offer reaches the offeree. The constitutive elements and types of fault liability P54: In the process of concluding a contract, those who violate the principle of good faith shall bear the responsibility. Causing the loss of others' trust interests P57. Acts that violate the principle of good faith, such as malicious negotiation under the pretext of concluding a contract, intentionally concealing important facts or providing false information, revealing or improperly using trade secrets, etc. ⑤ Classification and effectiveness of conditional contracts P 107 Contracts with entry into force and termination conditions, contracts with positive and negative conditions P 108: the right of hope and the right of reversion are collectively referred to as the right of expectation (effective when the conditions are met). ⑤ Consequences of the Third Party's Performance (single choice) P 144 The third party is only the subject of travel, and both parties to the contract should be responsible for the consequences of the third party (the third party is not the defendant and has no independent claim). 3. The important element P44 of acceptance is made by the offeree to the offeror, and its content is consistent with the offer, indicating that the offeree and the offer are the same. 4. There are three provisions in Article 12 of the Contract Law, namely, the name and domicile of the parties, the subject matter, quantity, quality, price or remuneration, the time limit, place and method of performance, the liability for breach of contract and the way to resolve disputes.

5.5. Characteristics, interpretation and invalidity of P85 standard clauses: one party entered into it in advance for repeated use, and entered into it with an unspecified counterpart. The content is stereotyped, and the counterpart is in a subordinate position in the contract. P89 Interpretation: Interpret it according to the usual understanding and make an unfavorable explanation to the maker of the clause. The format clause is inconsistent with the non-format clause. If the non-standard clause P87 is invalid, and one party uses fraud or coercion to harm the interests of the state and society, the exemption clause exempts the other party from personal injury liability, and the standard clause exempts the maker from liability or aggravates the relative party's liability. The format clause excludes the other party's main rights. 6. Effective elements of a contract (single choice) P 10 1 The actor has corresponding capacity for civil conduct, the intention is true, it does not violate the law or social public interests, and it must be in the form prescribed by law. 7. The situation of the contract whose validity period is to be determined and the treatment of P 1 10. P 1 1 1 Handling: not through negotiation between the parties, but through the person in charge. 8. Causes and consequences of invalid contract (single choice) P 12 1 reason: the parties have no capacity for civil conduct, the parties are persons with limited capacity for civil conduct, and one party cheats and coerces others to take advantage of others. The two sides colluded maliciously to cover up the illegal purpose in a legal form, which harmed the public interests and violated the mandatory provisions of laws and administrative regulations P 18. 9. Types and consequences of revocable contracts (single choice) P 128 It is obviously unfair to conclude because of major misunderstanding and fraud and coercion. Contract P 134 Return the property and compensate for the losses 10. The principle of contract performance (stipulated in Article P6 1 and Article 62 of the Contract Law) P 10. Economic rationality 1 1. Concept, applicable conditions and effectiveness of the right of uneasy defense P 147 Concept: In a bilateral contract, the party who should perform the debt first has the right to suspend the performance of its own debt when there is definite evidence that the other party (may) lose the ability to perform. Applicable conditions: A bilateral contract is mutually indebted, and one party must have the debt to be performed first and the performance period has expired, and the latter party may (may) lose the ability to perform, and there is no corresponding payment or guarantee. Effectiveness: notify the other party in time, and resume performance if there is guarantee; If the contract is terminated, the contract may be terminated if there is no ability or guarantee within a reasonable period of time. 12. subrogation in contract preservation, conditions, subjects and scope of exercise P 152 subrogation: if the debtor delays in exercising its due creditor's rights and causes damage to the creditor, it may request subrogation in its own name. P 162: Conditions for the right of revocation: objectively, the debtor has carried out the act of disposing of the property and has issued it.

Legal effect, the act has seriously damaged or will seriously damage the creditor's rights. Subject: the debtor and the third party are malicious. P 165 scope: limited to creditor's rights. 13. Conditions for Contract Alteration P 175 The contract relationship originally existed, and the contents of the contract were changed after the parties reached an agreement through consultation and followed legal procedures and methods. 14. conditions and effects of the transfer of contractual rights and obligations P 177 conditions for the transfer of contractual rights: if there are valid contractual rights, both parties to the transfer must notify the debtor and go through the formalities according to law. Effectiveness: The debtor can no longer perform its obligations to the assignor, that is, the original creditor, and the debtor has obligations to the new creditor, and the debtor's right of defense against the antigen creditor will not disappear. Creditors' right of set-off. P 180 conditions for debt transfer: valid debt exists, transferability exists, debt transfer agreement exists, and formalities shall be handled according to law with the consent of creditors. P 18 1: the transfer effect of contractual obligations: the new debtor will replace the original debtor as a party, and the new debtor can claim the original debtor's defense against the creditor. The new debtor shall bear the secondary debt related to the main debt. 15. Reasons for the termination of the contract P 186: The debt has been performed as agreed, the contract is terminated, the debts are offset, the debtor deposits the subject matter, the creditor is exempted from the debt, the creditor's rights and debts are owned by one person, and other circumstances are stipulated by other laws or agreed by the parties to terminate. 16. Conditions for legal dissolution of the contract P 190. The purpose of the contract cannot be achieved due to force majeure, and before the expiration of the performance period, one party explicitly or by behavior indicates that it will not perform the main debt, and it still fails to perform the main debt after being urged, and the purpose of the contract cannot be achieved due to delayed performance or other illegal acts, as well as other circumstances stipulated by law. 17. The condition of situation change must have the fact of situation change; Must occur after the establishment of the contract and before the termination of performance; It must be unforeseeable by all parties concerned and of an unforeseeable nature; Because of this, the original contract was performed with 18 which was obviously unfair. Forms and main forms of breach of contract P205 In China's contract legislation, breach of contract can be divided into non-performance and improper performance. Main forms: anticipatory breach (express implied breach) and actual breach (refusal, delay, improper performance and partial performance) 19. Exemption for breach of contract (statutory and agreed) is invalid. Force majeure (natural disasters, government actions and social anomalies) is invalid: the behavior of the third party, money and debts. Validity of sales contract. buy

Obligations of the donee: pay the price, accept the subject matter, inspect it in time, and temporarily keep the subject matter for emergency disposal. 2 1. If the donator exercises the legal right of cancellation and dissolution, P280 will be revoked: the donee seriously infringes on the donator or his close relatives and fails to perform the maintenance obligations and contractual obligations. Dissolution: the donor's economic situation has seriously deteriorated, seriously affecting production and operation or family life (the delivered items cannot be traced) 22. Effectiveness (Conditions) of the lease contract P295 Obligations of the lessor: During the guarantee period of delivery of the lease item, it shall conform to the agreed purpose, maintenance, property defects and rights defects. Obligations of the lessee: Use the leased property in the agreed manner or nature, keep it properly, do nothing, pay the rent and return the leased property. Effectiveness: the lessee's right to obtain the income from the leased property, the property right of the leased property and the lessee's preemptive right. 23. effectiveness of the contract P32 1 obligations of the contractor: complete the contract work, accept the materials provided by the ordering party or provide the materials according to the contract, deliver the work results, guarantee defects, tolerate, keep confidential and notify. Obligations of the ordering party: pay the price, assist and receive the work results. The right of the ordering party to change midway and the joint liability of the contractor 24. Effectiveness of the custody contract P365 Obligations of the custodian: pay the custody certificate, properly keep the deposit, personally keep the subject matter, not use the deposit without the authorization or permission of a third party, notify the danger and return the deposit. Obligations of the depositor: pay storage fees and other expenses, notify storage and declare valuables. 25. Effectiveness of the contract of carriage (passenger and freight) P344 Obligations of passengers: paying the price, luggage freight, children carrying luggage according to regulations, no dangerous or prohibited articles, obeying orders and not damaging facilities. Obligations of the carrier: to complete the transportation, notification and rescue as agreed, ensure personal safety and take good care of the luggage. P346 Shipper's obligations: pay the freight, declare the goods, go through the examination and approval procedures, pack the goods in the agreed way, warn the dangerous goods, suspend the change and terminate the contract compensation. Carrier's obligation: to complete the delivery as agreed, notify the delivery in time and ensure the safety of the goods. Consignee's obligations: pay the freight, pick up the goods in time and inspect the goods. 26. P334 of the Construction Project Contract guarantees the construction project price according to the contractor's legal priority rule, including the actual expenses such as personnel remuneration and materials payment that should be paid; Creditor's rights have priority over bonds of other civil subjects; After consumers pay most of the price of commercial housing, they do not oppose the priority; Time, implementation methods, registration issues, etc. 27. Effectiveness of the entrustment contract P373 Obligations of the trustee: handle affairs according to the instructions of the client, handle them in person, report the situation in time, and the benefits obtained by the Shanghai Stock Exchange. Obligations of the client: bear the consequences within the scope of entrustment, pay fees, pay remuneration (paid entrustment contract) and compensate.

3. Discussion 1. The difference between liability for breach of contract and tort liability and the rules for dealing with concurrence P225. In the case of concurrence of liability for breach of contract and tort liability, the victim is allowed to choose one responsibility to bring a lawsuit. Liability for breach of contract and tort are different in many aspects, and the protection of victims is different when choosing different responsibilities. The differences are as follows: different principles of imputation, different burden of proof, different constitutive requirements of responsibility, different exemption conditions, different forms of responsibility, different scope of compensation, different responsibilities to third parties and limited liability limits. 2. See 1 1 3 above. Contract with undetermined validity p11p18 concept: a contract with undetermined validity refers to a contract whose validity is uncertain when it is established and needs to be determined through other actions. Circumstances: A contract that a person with limited capacity for civil conduct cannot independently conclude according to law, or a contract concluded by an agent other than an apparent agent without power of attorney, has no right to dispose of the contract. Contact 7 questions to answer. 4. Risk burden of the sales contract P255 The risk of the subject matter of the sales contract refers to the loss caused by the damage or loss of the subject matter of the sales contract due to reasons not attributable to both parties. Risk burden refers to who will bear the risk. It shall be borne by the seller before delivery and by the buyer after delivery, unless otherwise provided by law. For details, please refer to P257 (The first carrier transfers the risk and assumes the responsibility from the date of breach of contract). Four. Case 1. Combination of liquidated damages and deposit (P222) Contract Law >: Article 1 15 The debtor shall pay the deposit to the other party as security for the creditor's rights. After the debtor performs the debt, the deposit shall be underpaid or recovered. If the party paying the deposit fails to perform the agreed debt, it has no right to demand the return of the deposit. If the party receiving the deposit fails to perform the agreed debt, it shall return the deposit twice. Adjustment (increase or decrease) of liquidated damages (losses exceeding 30% can be considered too high), conditions for contract change (P 175, see above 13), deposit not exceeding 20% of the target amount, effectiveness of general guarantee (supplementary liability) (when the parties stipulate in the contract that the debtor fails to perform the debt, the guarantor shall bear the guarantee liability), and termination of the contract. Conditions, scope and effect of subrogation and cancellation (P 152P 160, see above 12 3. Definition of exemption from breach of contract (exemption from force majeure does not apply to monetary debts and third-party debts); During the performance of the contract, if the creditor fails to perform the contract due to statutory or contractual exemption conditions, the creditor will be exempted from performing its obligations. 4. Place of performance of the contract. If the cost is unknown, the performance points specified in Article 6 1 and Article 62 of P 145 shall apply. If it is not clear, it shall be performed at a definite place. If no agreement can be reached, it shall be determined in accordance with the relevant provisions of the contract or trading habits. The last article stipulates that if payment is made in currency, it shall be performed at the location of the party receiving the currency. Real estate: in the location of real estate. Others: perform at the place where the performing party is located. Performance expenses refer to the expenses incurred by the debtor in performing the contract; If the performance fee is clear, it shall be borne in accordance with the agreement, if it is not clear,

It can be supplemented by agreement. If no agreement can be reached, it shall be decided in accordance with relevant laws and regulations or trading habits. (Final rule of expenses: borne by the party performing the obligation) 5. The validity of the lease contract, the classification and validity of conditional contracts, and the lease term shall not exceed 20 years (P294). P295 See 22 P 108 and above. Features of 2-5 lease contracts: the lease contract is a contract to transfer the right to use property, and the lease contract is a two-service paid contract. The lease contract is a kind of commitment contract, which is temporary and continuous.