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The workers on the construction site claim to be the actual constructors, and often sign material procurement contracts, labor subcontracting contracts, loan contracts, etc
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as the project department and project leader, which leads to a large number of debt disputes and labor disputes
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Should the signing workers or the apparent agent be Xu What about it? Expert opinion Legal Expert Dao Lai gives his professional opinion: the external legal acts of the actual constructors in the field of construction engineering are mainly divided into three categories: one is to contract the project or actually perform the project tasks in the name of the contractor; the other is to purchase materials in the name of the contractor or the name of the project department or in the name of the individual after contracting the project; and the other is the actual constructors Loan in the name of an individual, project department or contractor
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The first one is the behavior of the contractor clearly authorizing the actual constructor, which does not meet the basic conditions of the agency without authority
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The second and the third categories are usually regarded as agency by estoppel when they meet certain appearance and subjective requirements of the relative person
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1
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The purchase of materials by the actual construction personnel
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The purchase of materials by the actual construction personnel shall be recognized as the apparent agent only when they sign a contract with the contract counterpart in good faith and without fault in the name of the project department or the identity of the project leader within the scope of the project
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If the opposite party of the contract signs a sales contract with the actual constructor who knows that he has no agency status, the actual constructor’s behavior does not constitute apparent agency
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In the case of not being identified as apparent agent, Yu Shipei, Li Changxin and other actual constructors attached to Guangxi first Construction Co., Ltd
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signed several agreements with Xinshen company in the name of Guangxi first Construction Co., Ltd
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or its fourth construction team or even personal name in the four-year purchase and sales process, but none of them was stamped with the official seal of Guangxi first Construction Co., Ltd
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In some agreements, Guangxi first Construction Co., Ltd
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even acts as the “Guardian” of one party to the agreement, supervising the actual construction personnel to pay to Xinshen company or according to the instructions of Yu Shipei and Li Changxin
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Such agreement evidence can not identify the legal agency or representative relationship of the actual constructor to Guangxi first Construction Co., Ltd., let alone the apparent agency or representative relationship
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In this case, as the opposite party of the purchase and sales contract, Xinshen company should make it clear that the external cooperative relationship between Guangxi first Construction Co., Ltd
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and the actual construction company is when the contract is signed and performed subjectively, so Xinshen company subjectively does not meet the conditions of good faith and no fault
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Finally, the court held that the actual constructor’s behavior did not constitute apparent agency, and Guangxi Yijian did not need to be responsible for the actual constructor’s material purchase behavior
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The project involved in the case identified as apparent agency was obtained by Huang Baohua on behalf of the light industry company by signing the construction contract with Kelly company, the employer, and the light industry company also recognized the affiliation between Huang Baohua and Huang Baohua
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The contract involved in the case was stamped with the official seals of the light industry company and Qingfeng company
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Although the light industry company denied that the seal was owned and used by the company, the sales contract was signed by Huang Baohua in the name of the light industry company, and the light industry company also paid the steel payment to Qingfeng company during the performance of the contract
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The steel sold by Qingfeng company is also used in light industry company projects
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Qingfeng company has sufficient reasons to believe that Huang Baohua can represent the light industry company, that is, Qingfeng company has reasons to believe that Huang Baohua has the right to sign the steel sales contract on behalf of the light industry company
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Huang Baohua’s behavior and appearance are in line with the characteristics of Article 49 of the contract law of the people’s Republic of China on apparent agency
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It should be recognized that Huang Baohua’s behavior constitutes apparent agency, and the principal light industry company should bear the responsibility of payment for goods
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The actual constructor’s behavior of borrowing money from abroad 2
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When the opposite party is not at fault, the apparent agent confirms that Mu is affiliated with Hongyu company and engaged in the construction of Xingda Garden community by borrowing the qualification of Hongyu company
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Because he borrowed money from Sui in the construction process, Mu stamped the official seal of “Baishan Project Department of Hongyu company” on the mortgage loan agreement and the loan slip issued by mu, which produced mu He has the right to represent the external appearance of Hongyu company
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Although the official seal was carved by Mu Xiuli, he did not know about the relative person Sui
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He believed that Mu had the right to engage in loan business on behalf of Hongyu company
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In addition, Sui provided the “power of attorney of legal representative” to prove that Sui had reason to believe that Mu had the right of agency
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The court held that the fact that Hongyu company issued a power of attorney and that Mu was responsible for the construction of Xingda Garden community project, and many other factual legal links, were enough to make the third person Sui have reason to believe that Mu borrowed money in the name of Hongyu company, and Mu has the right of agency and can engage in borrowing on behalf of Hongyu company
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Therefore, Mu’s behavior of borrowing money from Sui Hongxi constitutes apparent agency, and Hongyu company should bear the responsibility of repayment
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On June 15, 2014, Peng Zhiping issued a “debit note” to Cai Deyou, which stated: “1.25 million yuan was borrowed from Cai Deyou (including 1 million yuan transferred from Cai Deyou’s account to Peng Zhiping’s account on October 24, 2013, and 250000 yuan transferred from Cai Deyou’s account to Liu Xiaoying’s account on January 30, 2014) For the Longxin lantianhu project of Chongqing Bozhong Hydropower Construction Co., Ltd., the principal and interest shall be returned by the project department, and the original IOU of 1 million yuan and 250000 yuan shall be invalid
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” The borrower of the IOU has Peng Zhiping’s signature and the seal of Longxin lantianhu Project Department of Bozhong company
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The court held that Cai Deyou did not provide evidence to prove that after Peng Daoyou introduced him to Peng Zhiping, Peng Zhiping provided him with any letter of appointment, power of attorney and other authorized documents when borrowing money on behalf of Bozhong company, and Cai Deyou, as a person with full civil capacity, should know that Bozhong company opened a bank account as an enterprise legal person, but he borrowed money twice None of the items were transferred to Bozhong company’s account; especially when he knew that Peng Zhiping’s account had been closed because he did not pay migrant workers’ wages in time, Cai Deyou also transferred the second loan to Peng Zhiping’s wife Liu Xiaoying’s account under Peng Zhiping’s instruction
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Therefore, Cai Deyou thinks that the evidence of Peng Zhiping’s apparent agency is insufficient
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As far as the analysis of the above cases is concerned, as long as there is the external appearance of the right of agency, even if the contract is stamped with a private seal, the opposite party can still claim the application of the apparent agency rules and investigate the liability of the obligee without knowing it
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However, it is difficult to claim the responsibility of the obligee if the opposite party fails to fulfill the reasonable duty of care and can not prove the appearance of the right agent when signing the contract
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