1. Concept and characteristics of commercial contract

In the Commercial Law of Vietnam, there is no concept of a commercial contract, but a commercial contract can be understood as a legal form of commercial act, an agreement between two or more parties (at least one of the parties). must be traders or entities having the status of traders) in order to establish, change and terminate the rights and obligations of the parties in the performance of commercial activities.

Commercial activities here are defined according to the Commercial Law 2005, specifically in Article 1 of the Commercial Law 2005, which includes: commercial activities performed in the territory of the Socialist Republic of Vietnam; commercial activities performed outside the Vietnamese territory in case the parties agree to choose to apply this Law or a foreign law or an international treaty to which Vietnam is a contracting party; non-profit activities of a party in a transaction with a trader performed in the territory of Vietnam in case the party performing such non-profitable activity applies this law.

Commercial contracts have common characteristics of contracts in general, and at the same time have certain characteristics, in which two basic elements stand out:

– Content is commercial activities.

– Signed between the parties being traders or one party being traders (shown in the subject element).

About the subject of a commercial contract

A commercial contract is signed between two parties who are traders, or one party is a trader. This is a feature of commercial contracts compared to civil contracts.

Thus, subjects in commercial contracts include traders (including legally established economic organizations, individuals conducting commercial activities independently, regularly and with business registration), individuals, other organizations engaged in trade-related activities (Article 2 of the Commercial Law 2005)

About the content of the commercial contract

The content of a commercial contract in particular and a contract in general is a collection of terms that the parties to the contract have agreed upon, these terms define the specific civil rights and obligations of the parties. contracting party. However, the fundamental difference of a commercial contract is that the content of a commercial contract is a commercial activity. Each type of contract has certain provisions on basic terms. Example: For a contract of sale, the basic terms include the object and the price.

The law promotes the agreement between the contracting parties, however, the content of the contract must comply with the provisions of the contract law in general, which are specified in the 2005 Civil Code. Compulsory contents, the parties may agree with each other on other contents than those prescribed in law. Article 402 of the 2005 Civil Code stipulates that “Depending on each type of contract, the parties may agree on the following contents:

• The subject matter of the contract is the property to be delivered, the work to be done or not done.
• Quantity Quality
• Price, payment method
• Term, place and method of contract performance
• Rights and obligations of the parties
• Liability for breach of contract
• Contract violations
• Other contain

Depending on the nature of each type of contract, the parties may or may not agree on all of the above. The parties can also add to the contract terms that are not stipulated but the parties feel it is not necessary. In addition, in order to clarify the content of the contract, there is an addendum to the contract. The contract addendum has the same effect as the contract, but the contents of the addendum must not be contrary to the contract. In case the appendix contains a clause contrary to the content of the terms in the contract, this provision shall not take effect, unless otherwise agreed. If the parties do not accept the contract appendix containing a clause contrary to the terms of the contract, it shall be considered that the clause in the contract has been amended.

Sources of Contract Law

The source of contract law is the basis that is used as a basis for formulating, promulgating and interpreting the law as well as for application to the settlement of legal cases that occur in reality, more simply. The source is the place where the provisions of contract law such as the Civil Code, the Commercial Law, the Investment Law, resolutions, guidelines, summaries of the Supreme People’s Court, commercial habits and practices are contained. .

The application of commercial habits and practices only occurs when the parties do not have an agreement and are not provided for by the law. In that case, the parties are deemed to be implicitly applying the established commercial practices between them that they already know or are forced to know. In the absence of laws, precedents, or habits, commercial practices, i.e., widely recognized practices in commercial activities in a region, domain or commercial field, have clear content. recognized by the parties to determine the rights and obligations of the parties in commercial activities.

2. Some notes when drafting a commercial contract

Drafting, negotiating, negotiating, concluding and managing contracts requires a lot of skills and in-depth understanding of relevant legal regulations. The drafting of a contract not only ensures the interests of the parties in the contract, but also has to anticipate possible risks in the future so that the terms of the contract can be adjusted to suit the circumstances. practice and legislation.

Therefore, to be able to build and conclude a contract with strict terms and protect legal interests, it is necessary to analyze and evaluate the risks that may be encountered. Based on practical experience in consulting and supporting businesses related to contract drafting, negotiation and dispute, Khoa Tin would like to send to customers a few notes as follows:

– Researching relevant documents, finding out relevant information about the parties to the contract in specific cases at the request of the business, thereby providing the optimal consulting solution for contract drafting and signing. contract, ensuring maximum benefits for the business and balancing the interests of the parties in the contract.

– Determine the provisions of law governing the nature of the contract or according to the agreement between the two parties: Civil code or commercial law, etc.

– When drafting a contract, it is necessary to ensure that the subject to sign the contract, specifically, the parties must consider the value specified in the contract for comparison in the Charter and legal regulations on the authority to approve and approve the contract. contracting. The representative party to sign the contract is the legal representative or the authorized person in writing, with the company’s seal.

– Identify the object of the contract as goods or services to detail the object in the contract. The more details about the subject of the contract, the more the parties can measure the unnecessary legal risks, for example, for the required quantity and quality of goods, the criteria for preservation, transportation, etc. transfer,…

– Determine the rights and obligations arising under the Contract;

– Design a mechanism for penalties for violations, compensation for damage, force majeure conditions, contract termination, disputes…

To ensure the cooperation mechanism between the two parties, anticipate unnecessary legal risks when performing the contract, you can contact Khoa Tin for the fastest and most accurate support. By providing its services, Khoa Tin will perform the following contents:

1. Legal advice on conditions for contract performance;

2. Studying relevant documents, finding out relevant information about the parties to the contract in specific cases at the request of the business, thereby providing the optimal consulting solution for contract drafting and signing. concluding contracts, ensuring maximum benefits for the enterprise and balancing the interests of the parties in the contract;

3. Appoint lawyers to participate in contract negotiations;

4. Giving legal opinions for customers to evaluate and decide in the negotiation of contract contents;

5. Appraise the contents, review and amend the contract terms offered by the partner;

6. Drafting necessary contract terms, negotiating with partners to protect important terms, and ensuring the legal rights of customers;

7. Drafting and revising terms related to the rights and obligations of the parties in the contract;

8. Consulting and drafting other contents based on the provisions of the law on contracts such as payment terms, contract penalties, applicable law, jurisdiction…

9. Legal protection for the content of the signed contract.

Above is Khoa Tin‘s advice on the concept and characteristics of commercial contracts and notes when drafting commercial contracts.

In case customers have unclear problems or need to discuss further, please call us immediately at 0983.533.005 for a free consultation.

Best regards./.