CHƯƠNG 4 Vô hiệu hợp đồng

Luật Hợp đồng là một phần quan trọng của pháp luật dân sự và thương mại, quy định về quá trình tạo ra và thực hiện các hợp đồng giữa các bên. Mục tiêu chính của Luật Hợp đồng là xác định và bảo vệ quyền và nghĩa vụ của các bên trong quá trình ký kết và thực hiện hợp đồng.

Chapter 4

Invalidity of contract

TAN P.P NGUYEN UNIVERSITY OF ECONOMIC AND LAW

1 Invalid Contract

What is an invalid contract?

S Civil transactions which fail to satisfy any one of the conditions specified in Article 117 of this Code shall be invalid.

Causes lead to Invalid Contract

(Art 123-Art 133 , 408 C.C 2015)

morals (A.123)

S Invalidity of civil transactions established and performed byminors and persons having lost their capacity for civil acts orhaving had their capacity for civil acts restricted (A.125)

S Invalidity of civil transactions entered into by persons incapable of being aware of or controlling their acts (A.128)

S Invalidity of civil transactions due to compliance with form (A.129)

non-S Invalidity of civil contracts due to impossibility

of performing subject matter (A.408)

Causes lead to Invalid Contracts

(cont.)

2 Cases lead to

Invalid contract

Article 125 Invalidity of civil transactions established and performed by minors or legally incapacitated persons or persons with limited cognition and behavior control or persons with limited legal capacity

S 1 When a civil transaction is established or performed by

a minor, a legally incapacitated person, a person with limited cognition and behavior control, or a person with limited legal capacity, a court shall, at the request of the representative of that person, declare such transaction invalid, if it is provided for by law that such transaction must be established and performed by or with the consent

of the representative of that person, except for the cases prescribed in Clause 2 of this Article.

2 A civil transaction of a person prescribed in Clause 1 of thisArticle shall not be invalid in any of the following cases:

S a) The civil transaction of a child less than 6 years of age or alegally incapacitated person established for his/her dailyneeds;

S b) The civil transaction only either arising rights orexempting from obligations for the minor, the legallyincapacitated person, the person with limited cognition andbehavior control, the person with limited legal capacity andtheir contracting parties;

S c) The civil transaction of which validity is recognized by theperson established such transaction that become an adult orrestore his/her legal capacity

Article 128 Invalidity of civil transactions established by person lacking in cognition and

behavior control

S A person who has legal capacity but has entered into a civiltransaction at the time of he/she is lacking in cognition andbehavior control shall have the right to request a court todeclare such civil transaction invalid

Article 123 Invalidity of civil transactions due

to breach of legal prohibitions

or contravention of social ethics

S Civil transactions with objectives and contents which breach legal prohibitions or which contravene social ethics shall be invalid

S Legal prohibitions mean provisions of law which do not

permit entities to perform certain acts

S Social ethics are common standards of conduct as betweenpersons in social life, which are recognized and respected bythe community

Case 1

S What is “Social Moral”?

Case 1: Agreement on transferring husband for 50

million VND

S In 1992, Mr A moved in Mrs B’s house and they live together as husband and wife They’ve had common properties and 3 children.

S In 2010, Mr A had started a sentimental relationship with

Ms C, who was a single woman After knowing that Mr A was living with Mrs B as husband and wife, Ms C suggested with Mr A and Mrs B that they would set up an agreement on transferring Mrs.B’s husband to Ms C with the value 50 million VND They agreed and concluded into a written contract with signatures of three persons.

Case 1 (cont.)

S In 2012, after having a period of time living together, Mr A and Ms Chad had many contradictions, and Mr A quitted living with her Ms Ccame to see Mrs.B, and asked her to return her 50 million VND for Mr.A’s leaving, but Mrs B did not accept

S In 2013, Ms.C, on her own, amended the content of the contract, byadding to it the phrase “Ms C agrees to give Mrs B a loan of 50million VND The term of the loan is one year.” Then she brought thelawsuit to the Court for recovering the amount of 50 million VND andthe penalty for late payment up to 11 million VND from Mrs B

Case 1_Questions

S 1 Is the contract valid or invalid? And why?

S 2 In your opinion, how should the Court settle this dispute?

Article 124 Invalidity of civil transactions due

to falsification

S 1 If the parties falsely enter into a civil transaction

for the purpose of concealing another transaction,

the false transaction shall be invalid and the

concealed transaction remains valid, unless it is

also invalid under the provisions of this Code or

Article 129 Invalidity of civil transactions due to

non-compliance with form

1 If the form of a civil transaction, required to be established

in writing, does not comply with regulations of law, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the

2 If the form of a civil transaction, required to be established

in writing, violates against regulations on notarizing or

authorization, but a party or the parties has/have fulfill at

least two third of the obligations in the transaction, a

court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction In this case, the parties need not perform the notarizing or authorization.

Article 126 Invalidity of civil transactions due to

misunderstanding

S 1 If there is a misunderstanding in a civil transaction that make a party or the parties fails to meet the objectives of the transaction establishment, the mistaken party shall have the right to request a court to declare such transaction invalid, except for the case prescribed in Clause 2 of this Article.

S 2 A civil transaction having misunderstanding shall not be invalid if the parties may meet the objectives of the transaction establishment or the parties may correct the misunderstanding resulting in the achievement of the objectives of the transaction establishment.

S Chỉ yêu cầu tuyên bố vô hiệu trong TH này trong khi ko đạt được mục đích giao kết.

S Đa số TH là lỗi hỗn hợp (không phân định ai có lỗi)=> Bác yêu cầu

Article 127 Invalidity of civil transactions due to

deception, threat or compulsion

deception, threat or compulsion has the right to request a court

to declare such transaction invalid

party or a third person for the purpose of misleading the otherparty as to the subject, the nature of the entity or contents ofthe civil transaction which has caused the other party to enterinto such transaction

act of a party or a third person which compels the other party toconduct the civil transaction in order to avoid danger to the life,health, honor, reputation, dignity and/or property or that of itsrelatives

Case 2

A 500-million VND contract on selling a soft drink bottle

and a fly within

S On 5th December, 2014, Mr Minh made a phone call to Tan Hiep Phat Trading and Service Limited Company

(THP), a Vietnamese company having a reputation in

producing and trading beer & beverage, to announce that

he was keeping a brand new THP’s soft-drink bottle which was having a fly inside.

S Mr Minh offered THP to buy such bottle at the price of

500 million VND In case THP would not want to buy it back, Mr Minh would report to the authorities and media which could harm THP’s reputation.

Article 408 Invalidity of civil contracts due to

impossibility of performing subject matter

S 1 If, immediately as from the time a contract is signed, it is impossible

to perform the subject matter of the contract for objective reasons, the

contract shall be invalid.

S 2 If, when entering into a contract, one party knew or should have

known that it was impossible to perform the subject matter of the

contract for objective reasons but failed to notify the other party which

entered into the contract, the former party must compensate the latter

party for damage, unless the latter party knew or should have known

that it was impossible to perform the subject matter of the contract.

S 3 The provision in Clause 1 and Clause 2 of this Article shall also

apply to a contract containing one or more parts with subject matter

which is impossible to perform, but the remaining parts of the contract

shall remain valid.

Vd: Ông A hẹn ông B kí hợp đồng mua cam vào 17/10, ngày 15/10 ông A đi Đồng NAi có việc và tối hôm đó bị bão hư hết cam, ông A không biết

và vẫn đi kí hợp đồng vào 17/10 => hợp đồng vô hiệu vì ngay từ ngày giao kèo thì đã không thể thực hiện được.

đối tượng không thể thực hiện được

3 Time-limit for requesting court to

declare civil transaction invalid

S 1 The time limit within which a request may be made to a court to declare a civil transaction invalid as specified in Articles 125 thru 129 of this Code shall

be two (2) years as from the date on which:

S a) The representative of a minor, a legally incapacitated person, a person with limited cognition and behavior control or a person with limited legal capacity knows and should know the ward established and/or performed the transaction himself/herself.

S b) The mistaken or cheated person in a transaction knows and should know that such transaction is established due to misunderstanding or cheating;

S c) The person that threatened or compelled other persons in a transaction put

an end to such acts;

S d) The person lacking in cognition and behavior control establishes his/her transaction;

S dd) The civil transaction is established in non-compliance with form

S 2 After the time limit prescribed in Clause 1 of this Article,

if there is still no request for declaring civil transactioninvalid, such transaction still remains valid

S 3 For civil transactions specified in Articles 123 and 124 ofthis Code, the time limit for requesting a court to declare

such civil transactions invalid shall not be restricted.

4.1 Consequences to contractual

parties

Article 131 C.C 2015

S An invalid civil transaction shall not give rise to, change or

terminate any civil rights and obligations of the parties as from the

time the transaction is entered into

S When a civil transaction is invalid, the parties shall restore

everything to its original state and shall return to each other what

they have received

S If the restitution is not able to make in kind, it may paid in money

by the value of the property (in Vietnamese version of C.C 2015:

“trị giá thành tiền để hoàn trả”)

S The party at fault which caused damage must compensate

therefore

không hoàn trả bằng tiền mà định giá bằng tiền để hoàn trả (không trả theo giá hợp đồng vì đã có lợi nhuận do đó chỉ trả tiền vốn.

4.2 Consequences to bona fide third parties

Art 133 C.C 2015

S 1 In cases where a civil transaction is invalid but the transacted property being a moveable property is not required to be registered and such property has already been transferred to a bona fide third party through another transaction, the transaction with the third party shall remain valid, except for the case specified in Article 167 of this Code.

S 2 In cases where a civil transaction is invalid but the transacted property is registered at a competent authority and such property has already been transferred to a bona fide third party through another transaction which is established according to that registration, such transaction shall remain valid.

S In cases where the transacted property which is required to be registered has not registered at a competent authority, the transaction with the third party shall be invalid, except for cases the bona fide third party received such property through an auction or a transaction with an another party being the owner of such property pursuant to a judgment or decision of a competent authority but thereafter such person is not the owner of the property as a result of the judgment or decision being amended or annulled.

4.2 Consequences to bona fide third parties

Art 133.3.

S The owner of a property shall have no right to reclaim theproperty from the bona fide third party if the transactionwith such party remains valid as prescribed in Clause 2 ofthis Article, but the owner may proceed against the party atfault to refund appropriate expenses and compensate forhis/her damage

Case Law

S Practice in class

Thank you for your concentration.