How Amendment to Contracts Can be Made?
Once a contract is made legally, contracting parties shall implement and such contract is respected by third parties. As stated in Civil Code 2015 (“CC”): “Each commitment or agreement that does not violate regulations of law and is not contrary to social ethics shall be bound by contracting parties and must be respected by other entities”. However, in the implementation process, the contract can be amended, which means, rights and obligation of parties can be amended accordingly.
Due to the fact that the contract is result of before agreement, amendment shall follow certain conditions. According to laws, parties may agree to amend a contract. Enterprises need to pay attention to some following issues when amending the contract in the implementation process:
Firstly, entities participating in contract amendment is the matter which enterprises need to notice. Both contract and supplemental agreement are made on behalf of the parties, which means between two juridical persons. In reality, juridical persons only carry out transactions through representatives, it may be legal representative or authorized representative. Therefore, entities participating in contract amendment shall be representative of juridical persons. A civil transaction entered into and performed with a third person by a representative in accordance with his/her scope of authorization shall give rise to rights and obligations of the principal. Regarding consequence of civil transactions made by unauthorized persons or by representatives beyond scope of representation, such civil transactions shall not give rise to rights and obligations of the principal or not give rise to rights and obligations of the principal with respect to that part of the transaction which exceeded the scope of representation, except for any of the following cases: (i) The principal recognizes the transaction or gives consent; (ii) The principal knows it without any objection within an appropriate time limit; (iii) It is the principal’s fault that the other party does not know or is not able to know that the person entering into and performing the civil transaction therewith was unauthorized or beyond his/her scope of representation. In above circumstances, the unauthorized person must fulfill the obligations to the person with which he/she transacted or the obligations owning to the person with which he/she transacted in respect of the part of transaction which is beyond the scope of representation, unless such person knew or should have known that the representative was unauthorized or the scope of representation was exceeded but still transacted. A person having transacted with above representative has the right to terminate unilaterally the performance or to terminate the made civil transaction or to terminate the civil transaction with respect to that part which is beyond the scope of representation or with respect to the entire transaction and to demand compensation for any damage, except that such person knew or should have known that that the representative was unauthorized or the scope of representation was exceeded or the case of which the principal recognizes the transaction or gives consent. If above representatives and the other party in a civil transaction deliberately enter into and perform such transaction and thereby cause damage to the principal, they must jointly compensate for the damage.
Form of agreement on amending contract is the second matter which needs to be taken into consideration. Amendment shall comply with the form of the initial contract. For instance, if the initial contract is made in written, notarized, certified, registered, the amendment shall follow such forms. The form of contract shall be the conditions for its effectiveness in cases where it is provided by law. Therefore, the form of amended contract shall be the conditions for its effectiveness in cases where it is provided by law. In invalid contracts, the general rule is restoring everything to its original state and returning to each other what have received. The condition for the contract of non-compliance with form recognized by the Court’s decision is that one party or the parties has fulfill at least two third of the obligation contract. However, not one party or the parties fulfilling at least two third of the obligation contract will naturally make such contract invalid but there must go through the Court. Specifically, according to request of one party, after fully considering conditions mentioned above, the Court shall make a decision on recognizing the validity of such contract. This principle also applies to contracts amendment. It is important that parties to consult with lawyers at early stage to anticipate matters of dispute and clearly have clauses drafted to avoid potential future disputes.