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Lawyer Wang Nan
Beijing Jingshi (Zhengzhou) Law Firm
13460319958

Case

In August 2021, Zhai signed a "Franchise Contract" with Dapeng Company, agreeing that Zhai would open a "Dapeng Hot Pot" in Zhengzhou City, and Dapeng Company would provide operational guidance services for the hot pot restaurant. , the contract period is two years, and the franchise fee is 100,000 yuan. Later, because the two parties did not reach an agreement on the location of the store, Zhai did not actually open the store. Zhai believed that because he could not open a store normally, the contract could not be continued to be performed. In October 2021, he sued Dapeng Company to the court and requested to terminate the contract and refund the franchise fee.

Dapeng Company argued that Article 45 of the "Franchise Contract" signed by both parties clearly stipulated that "once Party A receives the operational guidance materials provided by Party B, it means that Party B has fulfilled the corresponding obligations for this purpose." "Service, Party A has obtained the core secrets of Party B. No matter what circumstances lead to the cancellation or termination of the contract, the franchise fee will not be refunded." Zhai received the operation guidance materials on the day he signed the contract, so Dapeng Company agreed to terminate the contract. However, the franchise fee will not be refunded.

Judgment< /span>

The court held that both parties agreed to terminate the Franchise Contract, and this court supported the plaintiff’s request to terminate the contract. On the issue of whether the defendant should refund the franchise fee,Article 45 of the contract involved in the case The standard clause provided by the defendant Dapeng Company increased the plaintiff's liability and excluded the plaintiff's main rights, so it should be invalid. However, since the plaintiff’s failure to open a store was mainly due to its own reasons, considering the aforementioned performance facts In addition to the breach of contract clauses regarding the termination of performance of the contract involved in the case, this court determined at its discretion that the defendant Dapeng Company should return the plaintiff’s 60,000 yuan franchise fee. Therefore, it supported the reasonable part of the plaintiff’s claim but not the rest.

Lawyer Analysis

· What is a "format clause"?

Format clauses, also known as standard clauses, are It refers to clauses that are drawn up in advance by the parties for repeated use and are not negotiated with the other party when making the contract, such as insurance contracts, auction transaction confirmations, etc., which are all standard contracts, and there are also a large number of standard clauses in these contracts.

Civil Code 496 Article stipulates: "Standard terms are terms that are drawn up in advance by the parties for repeated use and are not negotiated with the other party when entering into the contract.

If a contract is concluded using standard clauses, the standard clauses shall be provided One party shall follow the principle of fairness to determine the rights and obligations between the parties, and shall use reasonable means to remind the other party of any clauses that have a material interest in the other party such as exempting or reducing its liability, and shall explain the clauses at the request of the other party. If the party providing the standard terms fails to perform its obligation to provide reminders or explanations, causing the other party to fail to pay attention to or understand the terms that have a significant interest in it, the other party may claim that the terms do not become part of the contract. ”

· Are format clauses necessarily invalid?

No. According to Article 497 of the Civil Code: “The standard clause shall be invalid under any of the following circumstances:

(1) Having the provisions of Section 3 of Chapter 6 of Part 1 of this Law and Invalid circumstances specified in Article 506 of this Law;

(2) The party providing the format clause unreasonably exempts or reduces its liability, Increase the other party’s responsibilities and restrict the other party’s main rights;

(3) One party providing format terms excludes the other party’s major rights. ”

The judgment in this case was also based on this article of law The second paragraph determines that the standard clauses provided by the defendant Dapeng Company unreasonably exempt or reduce its liability, increase Zhai's liability, and restrict Zhai's main rights, so the standard clauses are invalid.

· What should you pay attention to as a party providing format terms?

First, we must follow the principle of fairness . When preparing the standard clauses, the party providing the standard clauses should pay attention to the fact that the relevant clauses are not invalid. The drafted standard clauses should not unreasonably exempt or reduce one's own responsibilities, increase the other party's responsibilities, limit or exclude the other party's major rights. .

Second, the statutory obligation to explain must be fulfilled. The provider of format clauses has an "obligation to explain" the relevant clauses in accordance with the law. In the process of signing a contract, if the party providing the standard terms makes a reminder with words, fonts, symbols or other obvious signs that are sufficient to attract the attention of the recipient, or specifically explains or answers the relevant terms, it can be considered that the provider has done its best to provide the reminder. , explain the obligation.