What are the special restrictions on the terms of standard contract by law?

Special provisions of contract law on standard contract

In order to give full play to its advantages and restrain its negative influence, China's Contract Law has made comprehensive legislative provisions on standard clauses, and its articles 39, 40 and 4 1 respectively stipulate the rules for the conclusion, validity and interpretation of standard clauses.

I. Supervision of standard clauses

Paragraph 1 of Article 39 of the Contract Law stipulates that if a contract is concluded with standard terms, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to draw the attention of the other party to the terms exempting or limiting its liability, and explain the terms according to the requirements of the other party. This clause stipulates the rules for the conclusion of standard terms from both positive and negative aspects by setting obligations on the standard terms maker, that is, if the party providing the standard terms fails to fulfill the obligation of presentation or refuses to explain, the terms are regarded as not concluded; If the terms are unfair, they are also considered as not concluded.

Second, the regulation of the validity of standard terms.

Article 40 of the Contract Law stipulates that the standard clauses meet the conditions stipulated in Articles 52 and 53 of this Law, or the party providing the standard clauses exempts the other party from its responsibilities, aggravates the other party's responsibilities and excludes the other party's main rights, which is invalid.

According to the provisions of this article, we can see that the format clause is invalid in the following three cases:

First, the standard clauses under the circumstances stipulated in Article 52 of the Contract Law are invalid.

1. One party enters into a contract by means of fraud or coercion, which harms the national interests;

2, malicious collusion, damage the interests of the state, the collective or the third party;

3. Covering up illegal purposes in a legal form;

4, damage the public interests;

5. Violation of mandatory provisions of laws and administrative regulations.

Second, the standard clauses under the circumstances stipulated in Article 53 of the Contract Law are invalid.

1, causing personal injury to the other party;

2. Causing property losses to the other party due to intentional or gross negligence.

Third, if the party providing the standard terms exempts the other party from liability, aggravates the other party's liability or excludes the other party's main rights, the standard terms are invalid.

Third, standardize the interpretation of standard terms.

According to Article 4 1 of the Contract Law, the following principles shall be followed in interpreting format clauses:

Read it according to the usual understanding first. In other words, the standard clauses should be interpreted according to the average and reasonable understanding of potential contractors.

Second, make an unfavorable explanation to the producers of the terms. This principle of interpretation originated from the principle of "whoever has doubts is unfavorable to the person who expresses his will" in Roman law, and was later widely accepted by the legal circles.

Third, non-standard clauses take precedence over standard clauses. If there are both standard clauses and non-standard clauses in a contract (that is, the clauses drawn up after negotiation by both parties), and the contents of the two clauses are inconsistent, the adoption of different clauses will have a significant and different impact on the interests of both parties. In this case, according to this principle, we should adopt non-standard clauses and fully respect the expression of will of both parties, which is more conducive to protecting consumers in general.

The Contract Law comprehensively regulates the standard clauses, and Articles 39, 40 and 4 1 respectively stipulate the rules for the conclusion, validity and interpretation of the standard clauses. This paper introduces it in detail. If in doubt, please consult a lawyer again.