Article 10: Where the party providing standard clauses uses words, symbols, fonts, or other conspicuous marks that are usually sufficient to attract the attention of the other party at the time of conclusion of the contract, to remind the other party to pay attention to abnormal clauses that have a major interest in the other party, such as exempting or reducing its liability, excluding or restricting the rights of the other party, the people's court may find that it has performed the obligation to prompt as provided for in paragraph 2 of article 496 of the Civil Code.
Where, at the request of the other party, the party providing the standard clauses makes an explanation to the other party in writing or orally on the concept, content, and legal consequences of the abnormal clauses in which it has a major interest in the other party, the people's court may find that it has fulfilled its obligation to explain as provided for in paragraph 2 of article 496 of the Civil Code.
The party providing the standard clauses bears the burden of proof that it has fulfilled its obligation to indicate or explain. For electronic contracts concluded through the Internet or other information networks, where the party providing the standard clauses claims that it has performed its obligation to prompt or explain only on the grounds that it has adopted methods such as setting up checks or pop-up windows, the people's court will not support it, except where the evidence presented meets the requirements of the preceding two paragraphs.
【Purpose of the Article】
This article is about how to determine that the party providing the standard clauses has fulfilled the obligation to prompt and explain.
【Overview of Provisions】
The Civil Code strictly regulates the inclusion of standard clauses in contracts, and clarifies that the party providing standard clauses has the obligation to prompt and explain. Article 6 of the Judicial Interpretation (II) of the Contract Law stipulates the performance of the obligation to prompt and explain, and Articles 11 to 13 of the Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Insurance Law of the People's Republic of China stipulate the performance of the obligation to prompt and explain and the burden of proof in insurance contracts. This article draws on the useful experience of the above-mentioned judicial interpretations. In view of the fact that electronic transactions are becoming more and more common, in order to protect the transaction security of consumers and other special entities, paragraph 3 of this article makes it clear that it is not appropriate to assume that business operators have fulfilled their obligation to prompt or explain as long as they have adopted methods such as setting up checks or pop-up windows.
【Controversial Views】
Different from the provisions of the Contract Law on the obligation to prompt or explain, the Civil Code limits the obligation to prompt and explain to "clauses that have a material interest in the other party, such as exempting or reducing its liability". In practice, there are many voices expressing the hope that this judicial interpretation will provide for "clauses that have a significant interest in the other party". We believe that there may be many "clauses with a significant interest in the other party" in the contract, such as the subject matter, quantity, quality, price or remuneration and other clauses involving the substantive content of the rights and obligations of the parties to the transaction, which may be "clauses with a significant interest in the other party". Therefore, we believe that "clauses in which the other party has a significant interest" should be limited to "abnormal clauses".
Judging from the legislative purpose of the Civil Code's enumeration of "exemption or reduction of liability" as a clause that has a significant interest in the other party that needs to be reminded, such abnormal clauses should also include clauses that "exclude or restrict the rights of the other party". Article 497 of the Civil Code also stipulates that "the party providing the standard clauses unreasonably exempts or reduces its liability, increases the liability of the other party, or restricts the main rights of the other party" and "the party providing the standard clauses excludes the main rights of the other party" as the circumstances in which the standard clauses are invalid, that is, from the perspective of contract validity, "excluding or restricting the rights of the other party" is also an important consideration concerning the material interests of the counterparty. Therefore, at the stage of concluding a contract, even if the standard clause reasonably "excludes or restricts the rights of the other party", the other party should be reminded of it, otherwise, if the counterparty does not pay attention, the clause cannot become the content of the contract.
[Understanding and Application]
Paragraph 1 of Article 496 of the Civil Code stipulates that: "Standard clauses are clauses that are drawn up in advance by the parties for the purpose of repeated use and are not negotiated with the other party at the time of conclusion of the contract. "Since the development of standard clauses in the 19th century, they have been widely used in some industries or large enterprises, which is conducive to efficient and convenient transactions and to save transaction costs. However, because these terms are often drafted in advance by the party in a dominant position in the transaction and without consultation with the counterparty, it is likely that the party providing the standard terms will take advantage of its dominant position to formulate terms that are beneficial to its own party and unfavorable to the other party, so special regulation is required by law. One of the contents of the regulation is the obligation to prompt and explain the party that provides the standard clauses. In practice, the original intention of this article is how to properly enable the party providing the standard clauses to properly perform the obligation of reminder and explanation without excessively increasing its contractual burden, so as to better play the positive role of the standard clauses and limit their negative impact.
1. The party providing the standard clauses reminds the performance of its obligations
(1) The object of the obligation to prompt
This article clarifies that the object of the obligation of the party providing the standard clause is "an abnormal clause that has a significant interest in the other party, such as exempting or reducing its liability, excluding or restricting the rights of the other party", and the consideration of such a provision has been explained in the "Disputed Viewpoint" and will not be repeated here.
It should be noted that the "General Principles" of the first subpart of the contract part of the Civil Code plays an important role in the "General Provisions of the Law of Obligations" in civil law countries, and is a common basic legal system in the field of civil and commercial affairs in mainland China. Taking the obligation to prompt and explain the standard terms involved in a dispute over a sales contract in which the consumer is the buyer and the operator is the seller, the relevant provisions of Article 26 of the "Obligations of Business Operators" chapter of the Consumer Rights and Interests Protection Law are special laws (this article stipulates that the object of the obligation to prompt and explain according to the consumer's request is "the quantity and quality of goods or services, the price or fee, the time limit and method of performance, safety precautions and risk warnings, after-sales service, civil liability and other content that has a major interest in consumers", as long as "unfair and unreasonable provisions are made to consumers, such as excluding or restricting consumer rights, reducing or exempting business operators' liability, or increasing consumer liability, etc., and the relevant content of standard terms is invalid", the relevant laws and judicial interpretations shall apply the special provisions on the obligation to prompt and explain the party providing standard terms in this field.
(2) The manner of prompting
The way in which the party providing the standard clauses reminds the other party to pay attention to the exemption or reduction of its liability, the exclusion or restriction of the rights of the other party, and other abnormal clauses in which the other party has a major interest may be in the contract text, such as special words, symbols, fonts, etc.
Of course, from the perspective of wording, Article 6 of the Judicial Interpretation (II) of the Contract Law provides that the reminder methods include "special signs such as words, symbols, fonts and other signs that are sufficient to attract the attention of the other party", and this article amends "special signs" to "obvious signs", which is more accurate and more in line with the original intent of the legislation.
(3) Prompt the standards that need to be met
The party providing the standard clauses reminds the other party to pay attention to the abnormal clauses that have a significant interest in the other party, such as exempting or reducing its liability, excluding or restricting the rights of the other party, and needs to reach the level of "usually sufficient to attract the attention of the other party", which is an important criterion for judging whether the party providing the standard clauses has properly fulfilled its obligation to prompt.
In practice, there are cases where the party providing the standard clauses allocates the abnormal clauses in the contract text with a font and font size that is different from the ordinary clauses, but the font size is obviously smaller than the ordinary clauses, and the relevant clauses are placed in an extremely inconspicuous position in the contract text, which cannot reach the level of "usually sufficient to attract the attention of the other party", and naturally it cannot be determined that the party providing the standard clauses has properly performed the obligation to prompt, and if there is no other evidence to prove that the counterparty has noticed the abnormal clauses and understood the meaning of the clauses. If the counterparty asserts that the clause does not become the content of the contract, the people's court shall support it.
2. The party providing the standard clauses explains the performance of its obligations
(1) The content and method of explanation
With regard to the content of the obligation of the party providing the standard clauses, this article clarifies that the party providing the standard clauses shall explain the concept, content and legal consequences of the clauses in which the other party has a material interest if requested by the counterparty. Such a provision provides clear guidance to the parties to the transaction to explain the standard clauses, which is conducive to the counterparty to fully understand the original intention and legal consequences of such abnormal clauses, and is conducive to the parties to the transaction to make transaction arrangements that conform to their true intentions.
Explanations can be written or oral. Of course, if the party providing the standard clauses uses digital means such as web pages, audio, and video as a medium to explain the relevant clauses to the counterparty, it may also determine whether it has properly fulfilled its obligation to explain based on the evidence in the case.
(2) Explain the standards that need to be met
In the absence of the relevant professional background of the counterparty, the party providing the standard clauses must explain the relevant terms to such an extent that the counterparty can generally understand them, otherwise such abnormal terms are likely to be contrary to the purpose and true intention of the counterparty. If the party providing the standard clause fails to properly perform the obligation of explanation and the counterparty does not understand the clause in which it has a material interest, the counterparty has the right to claim that the clause does not become the content of the contract and is not bound by the clause.
3. The burden of proof that the obligation to prompt or explain has been fulfilled
For standard clauses that have a significant interest in the counterparty, the party providing the standard clauses has the obligation to prompt and explain, and as the party performing the relevant obligations, it is closer to the relevant evidence that can prove that it has properly performed its obligations, and it also has the burden of proving that it has fulfilled its statutory obligations of prompting and explaining.
In practice, there are situations where business operators perform their obligation to prompt or explain by setting up checks, pop-up windows, etc., and some business operators even adopt the method of implicit checks to carry out bundled sales. In order to protect the transaction security of consumers and other special entities, it is not appropriate to assume that business operators have fulfilled their obligation to prompt or explain as long as they have adopted methods such as setting up checks or pop-up windows. Even if the proprietor adopts methods such as setting up checks, pop-up windows, etc., it shall still provide evidence to prove that it has fulfilled its obligation to prompt or explain in accordance with the provisions of paragraphs 1 and 2 of this article.
In the financial sector, financial consumers are usually required to copy a text by hand, or sign or seal relevant documents, or even confirm that the party providing the standard terms has fulfilled its obligation to prompt and explain through audio or video recording. The party providing the standard clauses usually proves that it has fulfilled its obligation to prompt and explain with the above-mentioned evidence in the litigation. In the absence of contrary evidence to prove that the party providing the standard clauses has not fulfilled its obligation to prompt and explain, the people's court may determine that it has fulfilled its obligation to prompt and explain based on the aforesaid documents, audio and video materials, etc., provided by the party providing the standard clauses.
[Practical issues]
In practice, if an electronic contract is concluded through the Internet or other information networks, consumers may be faced with the following scenario: when inquiring about the price of air tickets, the price of air tickets displayed on the page is low, and when consumers make a decision to purchase air tickets based on the preferential price, the price on the settlement page has often been added to the airport pick-up service, lounge service, etc. by default, and the settlement price is higher than the price on the query page, and such default services often need to be manually removed by the consumer one by one. Many consumers, including younger consumers who are more familiar with the Internet consumption model, do not even realize that the consideration they have paid is much higher than they expected until they are not paying the total price. It can be seen that when entering into an electronic contract through the Internet and other information network methods, there is only a checkbox and a pop-up window, and consumers often cannot actually make the choice that best meets their original intentions unless they give a high degree of attention.
Therefore, when evaluating whether the party providing the standard clauses has fulfilled the burden of proof that it has fulfilled its obligation to prompt and explain, we emphasize that it cannot be considered that the party providing the standard clauses has completed the obligation to prompt and explain by simply setting up checks, pop-up windows, etc., and should also make an objective and comprehensive analysis and evaluation based on the evidence in the case in light of the standards of paragraphs 1 and 2 of this article.