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Real estate perspective: how to confirm the project cost according to the "black and white" contract in the field of construction engineering.

Published:

2021-06-03

Black-and-white contracts in the field of construction engineering, also known as yin-yang contracts, refer to two or more contracts signed between the contractor and the contractor for the same project, one for the record of the relevant construction department, and one for private agreements that are not disclosed to the public. As the employer, the developer inevitably concludes multiple contracts with the contractor for a certain development project. However, in the later settlement, due to the dishonesty of one or both parties, there is a dispute over which contract the project involved is settled according to. In judicial practice, the courts have different understanding and application of laws on how to confirm the project cost according to the black and white contract.

Interpretation of the Supreme People's Court of 1. on the Application of Law in the Trial of Cases of Disputes over Construction Contracts (I) Prior to the Implementation of the Interpretation of the Supreme People's Court of China

Referee point 1: The winning contract for the record should be used as the basis for the settlement of the project price.

Case No.:(2007) Min I Zhong Zi No. 74

Court view: The construction contract signed by Lintong Company and Hengsheng Company and filed by the Xi'an Urban and Rural Construction Committee is the true intention of both parties. Zhang Anming, as the person in charge of the construction site, organized the construction, and the project should be regarded as the completion of Lintong Company. The content of the contract does not violate the mandatory provisions of laws and administrative regulations and should be valid in accordance with the law. In the trial, the contents of the contract held by both parties are different. However, since the filing contract procedures are handled by Lintong Company's construction site representative Zhang Anming, and the court of first instance checked the relevant 29-3 contents of the filing contract to Xi 'an Urban Construction Archives, the filing contract should be recognized and used as the basis for settlement.

Referee opinion 2: Because the winning bid in this case is invalid, so the "construction project construction contract" (winning contract) is also invalid, should not apply to this provision, and the agreement signed by both parties before the winning contract is the actual performance of the agreement between the two parties, so the above-mentioned winning contract can not be used as the basis for the settlement of the project.

Case No.:(2013) Luo Min Zhong Zi No. 2478

Court view: The project in this case is a project that must be tendered according to the law. Although the "Construction Contract for Construction Project" signed by Meilun Company and Weimin Company on July 28, 2000 was tendered and filed in the construction department, both parties had already negotiated the substantive contents of the contract before the bidding, and Weimin Company also entered the site for the actual construction of the project involved before the bidding, therefore, the bidding behavior of both parties is invalid because it violates the mandatory provisions of the bidding law that "before determining the winning bidder, the tenderer shall not negotiate with the bidder on the substantive content of the bid price, bid plan, etc. Article 21 of the Interpretation of the Supreme People's Court on the Application of Law in the Trial of Disputes over Construction Contracts of Construction Projects: If the construction contract separately concluded by the parties for the same construction project is inconsistent with the substantive content of the bid-winning contract that has been filed, the filed bid-winning contract shall be used as the basis for settlement of the project price. However, the prerequisite for the application of this provision is that the contract filed must be the winning contract and the winning bid is valid, I .e., the winning contract filed must be the real winning contract, a contract signed and filed by the tenderer and the bidder through real bidding activities and based on the results of the bidding. Because the winning bid in this case is invalid, the Construction Contract for Construction Projects is also invalid and should not be applied, and the agreement signed by the two parties on March 22, 2000 is an agreement actually performed by the two parties, so the above-mentioned Construction Contract cannot be used as the basis for settlement of the project.

Judgment Point 3: When the construction contract involved in the construction project is invalid, comprehensive consideration shall be given to the settlement of the project price by reference to the contract agreed upon and actually performed by both parties.

Case No.:(2011) Min I Zhong Zi No. 62

Court view: When several construction contracts signed by the parties on the same construction project are found to be invalid, the construction market at the time of the contract, the acceptance of the parties, the litigation economy and other factors, with reference to the agreement reached by the parties and the actual performance of the contract settlement project price.

After the implementation of the interpretation (I) of the Supreme People's Court of 2. on the application of law in the trial of construction contract disputes.

1, according to the actual performance of the contract to determine the actual project price.

Case No.:(2020) Liao 01 Min Chu No. 154

The court's point of view: in the court's trial, the defendant shuangrui company stated: "the filing contract is for the purpose of construction. we believe that according to the terms of the 2013-6-8 contract, the filing contract is actually signed by both parties to perform the filing procedures for the administrative organ to perform the construction contract for plot d. the contract can prove that both parties have only signed and performed the construction contract for plot d."... According to the changes of market conditions, the two parties shall make changes to some clauses of the record contract through negotiation, and the adjustments are as follows: the record contract Part I Agreement Article 5 Contract price: 80022500 yuan (in words: eight thousand and two thousand two thousand five hundred yuan only) is the estimated contract price, which is 23.2 in the record contract.(2) The settlement clause method is now adjusted, and the final settlement method adopts the settlement method of bill of quantities, the engineering quantity is calculated according to the actual engineering quantity, and the comprehensive unit price is based on the "Shenyang Zanglong Garden Construction and Safety Project Contract" signed on June 8, 2013 (I. e. "Shenyang Zanglong Garden Phase I General Contracting Project Supplementary Contract", contract number: SG20130510006) The relevant provisions of the comprehensive unit price are priced. Therefore, the hospital determined the project price with reference to the contract on June 8, 2013.

2, can not determine the performance of the contract with reference to the final contract to determine the project price.

Case No.:(2020) Supreme Fa Min Shen No. 2649

Court view: In this case, the construction contract signed by the parties based on the bidding documents is the filing contract, which is invalid due to violation of the mandatory provisions of the the People's Republic of China Tendering and Bidding Law. In addition to the filing contract, the parties have signed multiple contracts before and after the bidding. Construction contracts and agreements are invalid because they have not passed the bidding process. According to the facts, the "Supplementary Agreement" signed by both parties is the last agreement signed by both parties, and it is clearly stipulated in the agreement as the only basis for the completion and settlement of both parties. From the actual performance of the contract, the contractor also applied to the contractor for payment in accordance with the time node and proportion of the payment of the progress of the project as agreed in the Supplementary Agreement, but the actual performance was not completed. Accordingly, it can be presumed that the Supplementary Agreement is a contract actually performed by the parties.

Summary

In real estate development projects, developers often act as contractors, in the process of signing construction contracts with contractors, it is inevitable that the construction contract is invalid, then, the payment of construction project price becomes the contractor, the contractor is most concerned about the problem. In this regard, in order to avoid mutual prevarication and damage to their own rights and interests in the later stage, the developer should confirm the actual performance of the contract with the contractor in a timely manner to ensure that both parties express their true intentions and protect their legitimate rights and interests.

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Real estate perspective: "to the house debt" buyers, can exclude the mortgagee's enforcement.

Dialogue New Media | Dispute over the Ownership of Self-Media Accounts and Legal Advice

Real estate perspective: "to the house debt" buyers, can exclude the mortgagee's enforcement.

Dialogue New Media | Dispute over the Ownership of Self-Media Accounts and Legal Advice