What Is a Buy-Sell Agreement?

A sales contract is a contract in which the seller transfers ownership of the subject matter to the buyer, and the buyer pays the price. Contract law in which the buyer accepts the property and pays about the price. Buying and selling is the most common form of commodity exchange, and it is also a typical paid contract. According to the provisions of Article 174 and Article 175 of the Contract Law of the People's Republic of China, when the law does not provide for other matters concerning the contract of compensation, the provisions of the sales contract shall be referred to; The contract of property ownership also refers to the provisions of the sales contract. ^[1]

Contract of sale

(Legal term)

Contract of sale is one party transfer

Signing a sales contract is one of the most common activities in daily market transactions. We must be cautious about some details and terms in the contract signing process to prevent contract fraud and avoid unnecessary losses and disputes.

I. Review of contract subject qualifications

Confirm whether the entity is qualified to enter into a contract and verify whether the signatory has actual performance capabilities.

1. The subject is organized by a legal person:

When entering into a contract, the other party is required to provide the original of a qualification certificate such as a business license, and at the same time pay attention to the authenticity of non-original certification materials such as photocopies of the certificates to prevent fraud.

Pay attention to examining whether the business license is defective, such as being suspended or temporarily suspended.

The actual registered capital and funds of the other party can be reviewed by the local business administration department to ensure that they have the actual ability to perform the contract.

Confirm that the buyer and seller must be the owner of the object or an organization that has the right to dispose of the object.

2. The subject is an individual, and the review of its performance capability can be conducted by investigating its unit and its colleagues, family, friends, neighbors, etc. to obtain relevant information, and finally comprehensively judge whether it has performance capability and credit.

Names of the parties to the contract or their names and domicile

If the subject is a legal person organization, the name of the business license shall prevail, and if the natural person is the name on the resident identity card.

Third, the object name, specifications, model, manufacturer, origin, quantity and price

1. The subject matter of the contract shall be full and specific, and shall not be abbreviated. Note that the subject matter shall not be prohibited or restricted by law.

2. Species, specifications, models, grades, suits, etc. should be specified, and the actual situation of the subject can be explained through an attachment if necessary.

3. The quantity and price should be clear, including the unit of measurement of the amount. Most of the matters should be agreed by both parties. At the same time, the unit price, total price, currency, payment method and procedure of the subject matter must be marked. vague.

Fourth, quality requirements

Product quality should be in accordance with national standards. If there is no national standard, it should be in accordance with industry standards or enterprise standards. It can also be determined through consultation. The sales contract should agree on the quality of the goods in order to facilitate acceptance and avoid disputes. The seller shall deliver the subject matter in accordance with the agreed quality standards. If the delivered subject matter is accompanied by a description, the delivered subject matter shall meet the quality requirements in the description.

Five, product packaging standards

The packing method of the goods is very important for the integrity of the goods. If the packing is not in place, cargo damage may occur and cause disputes. As for the packaging method, it can be packed according to the agreement. If there is no agreement, it should be packed according to the general method. If there is no general method, the packaging should be sufficient to protect the target.

6. Time limit, place and method of performance

1. The performance period can be calculated according to the year, quarter, month, tenth, and day. It must be accurate, specific, and reasonable. You cannot use ambiguous words.

2. The place of performance refers to the place of delivery. It must be written clearly, specifically and accurately.

3. The method of performance means that the two parties shall agree on the delivery, delivery, transportation and settlement methods, and shall be specific.

7. Delivery time, place and method.

The time, place and method of delivery are the key contents of the contract. It involves the realization of the interests of both parties and the risk of damage to the subject matter. Generally, the ownership of the subject matter is transferred at the time of delivery, and the risk burden is transferred accordingly. Therefore, the relevant content of the delivery must be specified in the contract.

8. Inspection standards, time and methods.

The contract shall stipulate the time, place, standard and method of inspection, the time when the buyer finds a quality problem and raises an objection, the time the seller responds, and the appraisal agency where the quality dispute occurs. After receiving the subject matter, the buyer shall inspect the subject matter within the inspection period agreed in the contract. If the quantity or quality of the goods is found to be inconsistent with the contract, the seller shall be notified within the inspection period. Promise. If the contract does not stipulate the inspection period, the buyer shall inspect it in time and notify the seller within a reasonable period of time when the problem is found.

Nine, settlement methods.

The settlement method should be specific and clear. Payment by check should be checked in accordance with the prescribed procedures to prevent the subject matter from being caught. There are two ways to prevent false check fraud. One is payment to delivery. According to the time required for check transfer, the buyer is required to pay the seller's account before delivery. Accept unless the goods are not needed. The other is to go directly to the bank where the drawer opens the account to hold the account and immediately know whether the check can be cashed. If it can be cashed, it can be transferred immediately. If the payment is refused, the delivery can be stopped immediately to avoid losses.

X. Liability for breach of contract

The agreement on liability for breach of contract should be concrete and feasible. If the two parties violate their due obligations, they shall be liable for breach of contract in accordance with the contract, and shall be liable for breach of contract in accordance with the law if there is no agreement in the contract. The penalties for breach of contract shall be described in detail by the parties to the contract in the liability for breach of contract.

Eleven methods of dispute resolution

The method of resolving disputes must be clear and specific. In addition, the agreed dispute resolution body and the prosecution court shall not exceed the jurisdiction of the territory.

Twelve other matters needing attention

1. The name of the contract subject and the name of the signatory must be consistent.

The seller should note that the unit name at the end of the buyer's contract must be consistent with the unit name at the beginning of the contract, and the unit name on the official seal or special contract stamp must be consistent with the written unit name. Whether the name is the same as the real name. There should be no typos, typos, omissions, or abbreviations.

2. Examine the agency's right of agency when signing the contract.

For the contract entered into by the salesperson or business manager of the other party on behalf of their unit, they should pay attention to the authorization of the other party, including the scope of authorization, the authorization period, the authenticity of the letter of introduction, and the senior management personnel of the illegal representative, such as the deputy general manager. , Vice chairman, etc., should know whether they have the right to represent. In order to avoid the situation of unauthorized agents.

3. Prevent malicious performance of contracts.

The situation of malicious execution of the contract is more complicated, but if the proactive precautions can be taken when the contract is concluded, the contract risk will be greatly reduced. If there is any doubt about the creditworthiness of the other party, the other party may be required to provide a guarantee. In addition, relevant evidence is retained in the performance of the contract. In the event of a dispute, the people's court shall actively exercise their right of action to protect their rights so as not to suffer losses due to exceeding the time limit for litigation.

4. The contract should be concluded in written form and use a standard contract model.

Although China's "Contract Law" allows various forms such as written form and oral form, non-written form is difficult to determine the responsibilities of the two parties in the event of a dispute and is easy to be used for fraud. Therefore, the conclusion of the contract should be in writing as much as possible. At the same time, when entering into a contract, reference should be made to the standard contract model issued by the industry and commerce administration as much as possible, and some contract terms and conditions can be appropriately adjusted in accordance with the specific transaction situation. The content should be as detailed and clear as possible. If in doubt, you can also consult an experienced professional lawyer or the Bureau of Industry and Commerce. Guarantee the legality, authenticity and validity of the sales contract.

Rights, risks, and interest transfers

Transfer of ownership of the subject matter

Unless otherwise stipulated by law or otherwise agreed upon by the parties, the subject matter of the sales contract shall be transferred from the time of delivery.

Subject Liability

The liability for the risk of the subject matter refers to which party shall bear the risk of accidental damage or loss of the subject matter during the performance of the sales contract. In a sales contract, the risk of the subject matter is usually borne by the party at fault for the non-performance or non-performance of the debt. In the case where the subject matter is not accidentally damaged or lost due to the intention or fault of both parties, the risk burden is determined according to the principle of delivery in accordance with the contract law of China. Specifically, the risk of damage to or loss of the subject matter shall be borne by the seller before the delivery of the subject matter and shall be borne by the buyer after the delivery, unless otherwise provided by law or otherwise agreed by the parties. For real estate, ships, aircraft, etc., which are publicly disclosed through registration as a change in rights, the risk shall be borne by the owner.

For various delivery methods, the principle of risk burden determined by contract law is: (1) Where the buyer personally extracts the subject matter, the seller shall bear the risk when the seller places the subject matter at an agreed or legal place. (2) The seller sells

The so-called defect guarantee liability is the statutory liability of the seller for the defects in the rights or defects in the purchase and sale of the subject matter. The so-called defect refers to the defect of the object or right of the subject matter of the sale. There are two types of defective guarantee liabilities, namely, the liability guarantee for defects in goods and the liability guarantee for defects in rights.

The liability for defects is a legal liability. In traditional civil law countries, as long as the right or property is defective, the seller must be responsible, so it is a no-fault liability. Corresponds to its fault attribution. The system is designed to balance the interests and risks of sellers and buyers.

As a kind of statutory liability, the defect guarantee liability is different from the liability for breach of contract. In the traditional civil law system, scholars believe that the liability for breach of contract is a liability for breach of obligation, and the liability for defective guarantee has not breached the obligation. Therefore, compared with the liability for breach of contract, the liability for defective guarantees is lighter. First of all, for the guarantee of defects in goods, the remedy method is limited to the termination of the contract and the price reduction, and the focus is on the right to claim a price reduction. There is no right to claim damages, not even the right to claim a separate defect. Only in special circumstances can the buyer exercise the right to claim damages, that is, the seller can exercise the right to claim damages when the seller expressly expresses the quality of the collateral or intentionally fails to notify the defect. Non-performance of the debt bears the liability for breach of contract. Secondly, the time limit for litigation is also different; for claims for defective guarantees, most countries in the civil law system require a shorter time limit for litigation. For example, Germany and Spain have set a time limit of 6 months for movable property and 1 for real property year.

How does China's "Contract Law" deal with defective guarantee liabilities. How to recognize the position of defective guarantee liability in China's "Contract Law" in theory. The difference between the liability for defective guarantee and the liability for defective guarantee shall be discussed separately.

According to Article 188 of the General Principles of the Civil Law of China ^[5]

Trial sale agreement

Contract No:__________

Party A (seller): __________________

Party B (buyer): __________________

After the parties A and B negotiated and agreed, the following agreements were reached and they were observed together.

Article 1 Party B purchases the listed machinery from Party A. Within one week from the date of the contract, Party A will ship the subject matter to Party B's factory. The two parties agree that if Party B considers the agreement after the trial, the transaction will be completed.

The second trial period is limited to ____ days, counting from the next day after receiving the machinery.

Article 3 For the trial of the preceding paragraph, if Party B considers it unsatisfactory, it shall immediately return the machine to indicate that the sale is unsuccessful. The freight required for the return shall be borne by Party B.

Article 4 During the trial period, Party B has the right to use the machinery freely. If any damage is caused, Party B shall be liable for compensation. If the damage is caused by manufacturing failure or damage in transit, it will not be covered by compensation.

Article 5 After the probation period expires, Party B does not immediately express dissatisfaction, and returns the machine to Party A as a qualified trial, and the sale shall become effective.

Article 6 The purchase price is agreed to be RMB ______, and at the same time the contract is established, Party B shall pay a deposit of RMB ______. If the transaction is established, the deposit shall be used as part of the price; if the transaction is not established, Party A shall return it to Party B in full.

Article 7 After the trial, if Party B considers it unqualified, or needs to continue the trial, Party A may require Party A to change or extend the trial period. Party A may refuse if it does not agree.

Article 8 If Party B deems qualified after the trial period, the payment shall be paid in full within ____ days from the end of the trial period without delay.

Article 9 Resolution of Disputes

In the event of a dispute between the two parties during the performance of this contract, they shall be resolved through negotiation; if the negotiation cannot resolve the dispute, the Xiamen Arbitration Commission shall arbitrate.

This contract is made in two copies, each of which is held by both parties A and B.

Seller (Party A): __________________ Buyer (Party B): __________________

Representative: ________________ __ Representative: _________________ _

Phone: ____________ ______ Phone: ________________

Date

Case introduction: The plaintiff sued that he and the defendant signed the "Dry-type single-core cable outdoor terminal and grounding box purchase and sales contract" with the defendant on January 25, March 7, May 3, and September 25, 2007. "," 110KV zinc oxide lightning arrester purchase contract "," cable accessory test contract "," dry-type single-core cable outdoor terminal material purchase and sales contract "," 110 cable fixing clip purchase and sales contract ", agreed that the defendant purchase transformer power equipment from the plaintiff Related rights and obligations of components. After the contract was signed, the plaintiff supplied the defendant's substation power equipment components with a total price of 1,292,300 yuan according to the contract. The defendant paid only 919,710 yuan, and the remaining 372,590 yuan was unpaid. Later, the plaintiff entrusted a lawyer to mail the "Lady Cui's Letter" to Cui Shu on January 2008, May 30, 2009 and August 13, 2009, and the defendant only paid part of the arrears. As of December 30, 2009, the arrears determined by both parties of the plaintiff were 229,965 yuan. On the same day, the defendant issued a "Repayment Plan" to the plaintiff, promising to pay the plaintiff 19,000 yuan per month from January to November 2010 and 20965 yuan in the 12th month. All the arrears are guaranteed to be fully paid before January 1, 2011. If all the arrears are not paid when due, they will bear the liability for breach of contract. After the "Repayment Plan" was issued, the defendant did not pay the plaintiff any arrears until the plaintiff sued. From January to July 2010, it has constituted a fundamental breach of contract, and from August to December, it has constituted an expected breach of contract. It should be fully responsible for breach of contract in accordance with the relevant provisions of the Contract Law. He appealed to the court and requested the defendant to pay the plaintiff the remaining amount of 229,965 yuan and deferred payment of 20,000 yuan of interest and bear the lawyer's fee of 20,000 yuan, a total of 269,965 yuan. The defendant did not submit a reply during the reply period. During the trial of the case, an agreement was reached through mediation: the defendant paid the plaintiff 229,965 yuan and assumed all legal costs before December 15, 2010, and the mediation agreement has been performed. ^[6]