In addition, the invoice amount of the seller exceeds the amount payable as a whole.
In terms of response ideas, the seller can be required to supplement the invoice before court, and then exercise the right through dispute resolution after it is delivered to the buyer, so as to avoid the adverse consequences of not supporting this part of the request.
The final settlement time of both parties is May 6, 2019.
This article is created at will.
When the seller fails to properly invoice, the buyer has the right to refuse to pay the corresponding amount to the seller.
The reference to the invoice defense clause here is only to illustrate that the performance of both parties is not completely consistent with the contract.
Due to the strong strength of the buyer and its internal risk control requirements, such businesses are generally standard contracts signed by both parties for the buyer.
Finally, as far as the invoice defense clause is concerned.
At the same time, due to the buyer’s internal control problems, it is difficult to obtain the balance payment through normal channels without dispute resolution.
Such contracts are basically standard terms, but they will be modified according to specific transaction situations according to business needs, such as changing sometimes “ambiguous” and harsh payment terms to another “ambiguous” and harsh payment terms, or selecting the place of dispute settlement or arbitration or court, without a unified solution.
According to Article 510 of the civil code, “after the contract comes into force, if the parties have not agreed or clearly agreed on the quality, price or remuneration, place of performance and other contents, they may supplement it by agreement; if they cannot reach a supplementary agreement, it shall be determined in accordance with the relevant provisions of the contract or trading habits.” Article 628: “the buyer shall pay the price at the agreed time.
When there is no relevant agreement in the contract, the parties can only seek relief from the tax authorities, but do not constitute a reciprocal obligation with the main payment obligation, so as to defend the payment request.
According to the mainstream view of current judicial practice, the invoicing obligation belongs to the obligation of public law.
The expression of the above terms is undisputed in the ideal situation of contract performance, that is, Clause 1.2 is only the confirmation of the payment by both parties at the end of contract performance, and clause 1.3 is the real settlement method of both parties.
However, both parties did not conduct monthly reconciliation as agreed in the contract, nor did they divide the payment into two payments after monthly reconciliation as agreed in the contract.
In my opinion, I mainly grasp the payment time of settlement payment, the starting time of liquidated damages, its calculation standards and standard terms.
Several problems in handling this case are summarized as follows.
In conclusion, in the case of conflict between the contract and the actual performance, the starting time of settlement payment may become the focus of dispute in this case.
In this regard, this paper is analyzed and summarized here.
According to Clause 1.3 of Article 5 of the sales contract of this case, both parties shall reconcile monthly, and 30% of the payment in the last month shall be the balance payment, which shall be paid within 3 months after the project involved in the case passes the acceptance; According to paragraph 1.2 of this article, the final settlement shall be made within one month after the performance of the contract by both parties; Article 2.3 of this article is an invoice defense clause, that is, when the seller fails to make an invoice in full, the buyer has the right to refuse to pay the corresponding payment.
If the time of payment was not agreed or clearly agreed, and cannot be determined in accordance with the provisions of article 510 of this law, the buyer shall pay at the same time as receiving the subject matter or the document for taking delivery of the subject matter.” In this case, the transaction habits of both parties cannot deduce the conclusion of course based on the payment transactions between the parties and the billing records.
In this regard, whether the disputed amount in this case can be interpreted as the “final payment in the last month” remains to be discussed.
3、 Starting time and calculation standard of liquidated damages in this type of dispute, because the buyer is the strong party in the transaction, generally only the seller’s breach clause is agreed..
Some of the contents have not been carefully studied and expressed feelings.
I.
However, the actual performance status is that the buyer did not pay in strict accordance with the contract, and the seller did not make an invoice as agreed.
In practice, the buyer operates multiple project departments internally, and each project department is responsible for its own profits and losses and makes independent settlement.
2、 The payment time of settlement payment determines the starting time of liquidated damages and the starting time and interruption time of limitation of action.
Although this case does not involve the application of this clause, in such cases, the buyer often invokes it to refuse payment or delay the starting time of liquidated damages.
After the final settlement was made by both parties on May 6, 2019, the buyer refused to pay the balance due to the above reasons.
For example, in the case of arbitration, I should also pay attention not to omit the claim of lawyer’s fees.
In this case, the project Department of the project involved in the case did not pay the project funds in place due to the settlement of the employer, so the client, as a material supplier, could not get the later payment.
If readers find mistakes, they still hope to contain them.
In my opinion, it should be determined that the obligations of both parties are the same in accordance with Article 628 of the civil code, and both parties should pay goods and money at the same time.
However, when the parties clearly agree that the invoicing obligation is the equivalent obligation of payment obligation, the effect of party autonomy should be respected.
Secondly, if the payment time of the settlement payment cannot be specified in accordance with Clause 1.3, it shall be determined in accordance with legal provisions or trading habits.
Summary of case handling Author: Huang Xiaoxian, wechat: aceattorney Huang (don’t ask, asking is to change blindly when drunk, and can’t go back this year).
In addition, this kind of business is not difficult to handle, and can be processed as a process operation.
Firstly, according to paragraph 1.3, it is possible to understand that “the payment node shall be calculated three months after the completion acceptance of the project involved in the case”.
preface this case is a common sales contract dispute between material suppliers and state-owned construction units.
In addition, as for the buyer’s failure to pay in time, the liquidated damages for overdue payment are not reflected in the final settlement signed by both parties, which can be regarded as the seller’s exemption.
At the same time, I also hope you can communicate with the author more and criticize the insufficient part, and the author will improve it.
In this case, since both parties have only determined the final payment amount at this time, that date shall be the starting point of settlement payment.
