In accordance with Article 26 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of the contract law of the people’s Republic of China (II), Even if it is an unforeseen major change, it is only to change the contract terms, that is, both parties share the corresponding risks, not blindly protect the interests of the construction party, and transfer the risk of material price rise to the employer.
If the continued performance of the contract is obviously unfair to one party or fails to achieve the purpose of the contract, and the party requests the people’s court to change or terminate the contract, the people’s court shall, in accordance with the principle of fairness and in combination with the case The price rise belongs to “the objective situation after the establishment of the contract has undergone major changes that cannot be foreseen by the parties at the time of signing the contract and are not caused by force majeure, which are not commercial risks”.
According to the opinion of the court of second instance, Article 26 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of the contract law of the people’s Republic of China (II) stipulates: “After the establishment of the contract, the objective situation has undergone major changes that cannot be foreseen by the parties at the time of signing the contract and are not caused by force majeure, which are not commercial risks.
If the continued performance of the contract is obviously unfair to one party or fails to achieve the purpose of the contract, and the party requests the people’s court to change or terminate the contract, the people’s court shall, in accordance with the principle of fairness and in combination with the case Determine whether to change or terminate the contract according to the actual situation of the company.
According to the opinion of the court of first instance, Chongqing Construction Engineering Company proposed to cancel the agreement on “whether to adjust the contract price due to market price fluctuation: no adjustment” in article 11.1 of the special terms of the construction project construction contract signed by both parties on October 11, 2016.
On August 25, 2016, Chongqing Construction Engineering Co., Ltd.
Click on the top, Concerned about the applicant for retrial of the official account of Pan Wei construction law (first instance defendant, appellant of second instance): Chongqing Construction Engineering Group Company Limited (hereinafter referred to as Chongqing Construction Engineering Group) respondent (first instance defendant, appellant of second instance): introduction of the case of Rong Xinhuan Bao Industrial Development Co., Ltd.
and Rongxin environmental protection Co., Ltd.
Therefore, the court of first instance does not support Chongqing Construction Engineering Company’s request to revoke article 11.1 of special terms of construction project construction contract “whether market price fluctuation adjusts the contract price: no adjustment”.
issued the letter of acceptance to Chongqing Construction Engineering Co., Ltd., stating that the general contracting project of phase I continuous industrial platform construction project (zone a) of Jiangsu hi tech Rongchang energy conservation and environmental protection industrial park proposed by our company was opened on August 25, 2016.
Continued performance will lead to obvious unfairness or failure to achieve the purpose of the contract by Chongqing Construction Engineering Company.
The reason why Chongqing construction engineering company proposed to cancel the agreement was the rise in the price of building materials.
After being evaluated by the bid evaluation committee and reported to the construction project bidding supervision and management organization for filing, your company was determined as the bid winner.
signed the construction project construction contract of general contracting project of phase I continuous industrial platform construction project (zone a) of Jiangsu high tech Rongchang energy conservation and Environmental Protection Industrial Park (hereinafter referred to as the construction project construction contract), The “contract agreement” of the contract states: the “special conditions of contract” states:…
After signing the contract, the prices of main building materials such as steel and commercial concrete did rise, but the rise did not exceed the historical high price, which was not unforeseen by both parties.
submitted a bid to Rongxin environmental protection Co., Ltd.
This article provides for the principle of change of circumstances in the contract law.
Article 26 of the interpretation of the Supreme People’s Court on Several Issues concerning the application of the contract law of the people’s Republic of China (II) stipulates: “After the establishment of the contract, the objective situation has undergone major changes that cannot be foreseen by the parties at the time of signing the contract and are not caused by force majeure, which are not commercial risks.
(hereinafter referred to as “Rong Xin environmental protection company”) in Rongchang District, Chongqing, August 2016.
According to the provisions of this article, the application of the principle of change of circumstances must meet the following conditions at the same time: first, the change of objective circumstances cannot be foreseen by the parties at the time of conclusion of the contract; Second, changes in objective conditions lead to abnormal changes in the basis for the establishment of the contract, and the continued performance of the contract is obviously unfair to one party or fails to achieve the purpose of the contract; Third, the objective situation is not a normal business risk..
On September 7, 2016, Rongxin environmental protection Co., Ltd.
invited bids for the “general contracting project of phase I continuous industrial platform construction project (zone a) of Rongchang energy conservation and environmental protection industrial park of Jiangsu high tech”.
The focus of dispute is whether article 11.1 of special terms of construction contract of construction project should be revoked.
Rongxin environmental protection Co., Ltd.
the letter of bid stated that: we have carefully studied all the contents of the bidding documents for the EPC project of the phase I continuous industrial platform construction project (zone a) of Rongchang energy conservation and environmental protection Industrial Park of Jiangsu high tech, and are willing to undertake the turnkey project of the design, procurement and construction of the project in accordance with the provisions of the bidding documents.
If the clause is directly revoked at the request of Chongqing Construction Engineering Company, all the risk of material price rise shall be borne by the employer Rongxin environmental protection company, It is also inconsistent with the purpose that Chongqing Construction Engineering Company should bear the risks and benefits of corresponding building material price changes when both parties conclude the bid winning contract.
11.1 “adjustment caused by market price fluctuation”.
The court of first instance held that in this case, the price adjustment of main building materials by both parties was calculated according to the guiding price of Rongchang district published in the 8th issue of Chongqing project cost information in 2016, When both parties sign the bid winning contract, the meaning of “agreement on whether to adjust the contract price due to market price fluctuation: no adjustment” agreed in article 11.1 of SCC shall mean that the risk of price rise shall be borne by Chongqing Construction Engineering Company, and the income from price decline shall be enjoyed by Chongqing construction engineering company.
Agreement on whether to adjust the contract price due to market price fluctuation: no adjustment.
On October 11, 2016, Chongqing Construction Engineering Co., Ltd.
