In a certain project, there is a dispute over the visa change, and the calculation method of the visa change has been agreed in the contract, but the construction unit said that the contract was forced under abnormal circumstances, and it was not recognized when cross-examining, and it should be in accordance with 59.1. The first clause to calculate the visa change, the client did not clarify whether the contract was valid or not. What about an appraiser like this?
Keywords: effectiveness of coercion visa
First of all, let's talk about the concept of coercion, in practice, there will always be an employer or contractor who claims that they were coerced by the other party when signing a contract, how to determine the validity of the contract signed under duress?Article 150 of the Civil Code: "Where one party or a third party uses coercion to cause the other party to carry out a civil juristic act contrary to its true intentions, the coerced party has the right to request the people's court or arbitration institution to revoke it." "Article 152;"The right of revocation shall be extinguished under any of the following circumstances: (2) the party concerned is coerced and has not exercised the right of revocation within one year from the date on which the coercive act is terminated. Where a party does not exercise the right of revocation within five years from the date of occurrence of the civil juristic act, the right of revocation is extinguished. Therefore, for a contract signed under duress, the parties may claim revocation from the court or arbitration, but the contract is still valid before the revocation, and at the same time, it should be noted that the exclusion period for the exercise of the right of revocation can no longer be claimed once the exclusion period has expired.
How is it determined that it constitutes coercion?The first must be the fact of coercion. Coercion is to tell the other party that it will cause some kind of harm to the other party in the future, and to claim that it has the ability to cause the harm to occur, and the harm here first includes the threat of the health, life safety, honor, reputation, property damage of a natural person, etc. Secondly, the harm must be a fact that will occur in the future, which will make the other party have a fear mentality, and will make the other party appear in a state of compulsion and compulsion. Second, coercion is not only directly against the other party, but also on a third party other than the counterparty to the contract. Third, it is also necessary to pay attention to the causal relationship between coercion and civil acts, which must be caused by the coercion of the other party or a third party to carry out a certain civil juristic act. Finally, it should also be noted that the subject of coercion must have subjective intent. Therefore, the law is relatively strict on coercion, and it is difficult to prove that it was coerced in a commercial contract such as a construction contract.
Returning to the present case, the appraiser wanted to calculate the amount of the visa change itself rather than according to the calculation principle agreed in the contract. The appraiser is based on Article 5 of the Code for Appraisal of Construction Project Cost9.Article 1: "In the event of a dispute between the parties due to the cost of the project visa, the appraiser shall conduct the appraisal in accordance with the following provisions: 1If the visa clarifies the number of labor, materials, and machinery shifts and their **, it shall be calculated according to the number and ** of the visa. "The problem now is that on the one hand, there is a special calculation method for visa changes in the contract, and on the other hand, the parties have actually agreed on the visa, and clearly stated the number and ** that are different from the contract. The author believes that the visa should be implemented at this time. The parties may change the contract by consensus, and the visa can be regarded as a supplementary agreement, which has changed the original contract.