A paper on contract law

The author will review these two views respectively and put forward his own views on this basis.

Second, discrimination-property management contract and similar civil law system [8]

(1) Property management contracts and entrustment contracts

Look at the entrustment contract first. According to Article 396 of the Contract Law, an entrustment contract is a contract in which the principal and the trustee agree that the trustee will handle the principal's affairs. According to other provisions of this chapter, we can define the characteristics of the entrustment contract from the following aspects.

1. The contract is signed by the principal and the principal, who are the main bodies of the entrustment contract.

The principal's main duty is to handle the principal's affairs.

3. The trustor shall handle the entrusted affairs according to the instructions of the trustor.

4. Entrustment contracts can be divided into paid contracts and unpaid contracts.

5. When handling the entrusted affairs, if the client suffers losses due to reasons not attributable to him, he may claim compensation from the client.

6. The trustor and the trustee may terminate the entrustment contract at any time. [9]

Corresponding to the content and characteristics of the property management contract, it is not difficult to see that there are the following main differences between them:

1. The purpose of the entrustment contract is to handle the affairs of the principal. The so-called client's affairs generally refer to the affairs that the client has an interest and has to do in person without entrustment. On the other hand, the essence of management service in the property management relationship is the professional and technical paid service provided by the property management company as a management service provider. Because property management has the characteristics of requiring professional technical services, not all owners and owners' committees can handle it in person. At the same time, for a large community, if every owner is obedient, the order of the community can not be maintained. It can be seen that there are obvious differences between property management matters and entrusted matters.

2. Article 399 of the Contract Law clearly stipulates: "The trustee shall handle the entrusted affairs according to the instructions of the client." This essentially stipulates the obligations of the trustee. However, the management service of property management is not completely handled according to the instructions of the owners and the owners' committee. The management service of a property management company is to independently carry out the business activities of property management services according to the scope and projects agreed in the contract, and in accordance with the laws and regulations of property management and the industry norms of property management. In the business activities of property management services carried out by property management companies, owners and owners' committees only have the right of supervision, but have no right of interference and command. Property management companies have no loyal obligation to obey the instructions of owners and owners' committees.

3. In the entrustment contract, the legal consequences obtained by the agent within the scope of the entrustment contract belong to the principal, so the entrustment contract shall be borne by the principal. At the same time, Article 407 of the People's Republic of China (PRC) Contract Law also stipulates: "When handling affairs, the trustee may claim compensation from the principal for losses caused by reasons not attributable to him." Property management is different. Both parties to the property management contract should bear their own responsibilities, whether it is tort liability or breach of contract liability.

4. Entrustment contract is both a commitment contract and a compulsory contract. The establishment of an entrustment contract only requires the two parties to reach an agreement, and it is not necessary to deliver something or complete some behavior as an important element, and it is not necessary to follow a fixed form when concluding a contract; Property management contract is a necessary contract and a standard contract. Property management companies must be determined and property management contracts signed in accordance with the bidding methods stipulated by property management laws and regulations, and property management demonstration texts are generally required. The relevant contents and performance of the final contract must also be supervised by the relevant organs such as urban construction, city appearance and neighborhood committees.

5. There is a big difference between the entrustment contract and the property management contract in the contract term, and the affairs handled by the client are often relatively simple and the time is relatively short; Property management is different. Property management companies provide systematic and professional services, which are long-term, continuous and repeated. If the property management contract is signed in the short term, it may be inappropriate for the property management company to pursue short-term results, which is not conducive to the long-term maintenance of property management facilities. In addition, due to the particularity of the property management relationship, one party of the property management shall not terminate the contract at any time like the party entrusting the contract.

6. The payment methods adopted in the two contracts are different, and the charging method of property management is different from that of the entrustment contract. Property management fees are generally paid by the owners or households on a monthly basis according to the agreement of the owners' convention and the property management contract. However, the expenses stipulated in the entrustment contract stipulate the expenses for handling affairs and the remuneration to the client respectively. The cost of handling affairs can be paid in advance, or it can be paid by the trustee and then repaid by the principal. As far as remuneration is concerned, fees and remuneration are paid after the entrusted affairs are completed or entrusted for free, which is obviously different from property management fees.

7. Entrustment contracts are generally established on the premise that the principal has special trust in the trustee; The property management contract is obtained after bidding, and the property manager generally needs to obtain a certain qualification certificate to become the object of bidding for the property management contract.

8. Entrustment contracts can be paid contracts or free contracts, while property management contracts are generally paid contracts.

From the above aspects, it can be clearly seen that there are some major differences between property management contracts and entrustment contracts, and property management contracts are far from being one of entrustment contracts. At present, the practice of taking the entrustment contract as a qualitative property management contract in practice and theory distorts the essential characteristics of property management contracts and confuses the basic legal relations, which is not conducive to the settlement of property management disputes in practice.

(2) the property management contract and the authorization of agency.

Agency refers to the act that an agent expresses his intention to a third party in his own name (the principal), or the third party expresses his intention within the scope of agency authority, which has direct effect on him. [10] Agency is an important system to expand and supplement the capacity of civil subjects in civil law. In the classification of agents, the agent based on the authorization of the principal, that is, the principal-agent (meaning agent), is the most common and widely used agent form. In practice, some people think that the property management contract is an agency contract, while others think that the property management contract is one of the acts of setting agency rights, and draw the conclusion that the property management behavior is an agency behavior, which is actually a typical misunderstanding of the nature of the property management contract. The following is made clear from two aspects: the nature of property management contract and the specific content of property management behavior.

First of all, generally speaking, the entrustment contract is the cause and basis of entrustment [1 1]. In the above, the author has used enough space to explain that the property management contract is not an entrustment contract. To take a step back, even if there are relevant entrustment clauses in the property management contract, first of all, this cannot be used as the basis for the qualitative nature of the whole contract. Secondly, in theory, there is no need to recognize the entrustment contract. Therefore, the property management contract is different from the agency authorization.

Secondly, in property management activities, property management companies usually have no agency. Although property management activities involve legal acts, they generally do not need the agency of property management companies. A large number of activities in property management activities do not involve legal acts at all, and there is no need for agents at all. Therefore, there is no causal relationship between agency behavior and property management activities, and the concept of agency cannot be used to explain property management activities.

Thirdly, the theory of civil law recognizes that the corresponding remuneration of agents is based on the entrustment contract, and the agency behavior is not for profit, which is in great conflict with the purpose of the property management system, and the agency is based on the credibility of the principal, otherwise the counterpart cannot conduct transactions safely. Besides, the ultimate effect of agency can only be to improve the reputation of the client. In modern society, property management is developing towards standardization and branding. If property management is classified as agency, the ultimate effect of a series of property management activities carried out by property management enterprises should only be to improve the reputation of owners and owners' committees. As a result of this kind of agency, property management enterprises will not have the motivation to make great efforts to engage in these activities. Obviously, the effect of this agent is not in line with the reality of property management. [ 12]

Finally, in the property management relationship, after the property management company signs a property management contract with the owner or the owner's committee, the property management activities that the property management company is engaged in are based on its own independent will, and it is not necessary to act according to the owner or the owner's committee in the management operation of specific matters, which is also significantly different from agency.