There is no agreed payment time, when will the time limit be calculated?

Basic case

Company A supply to Company B, and the two parties did not agree to the payment time of Company B.

On September 28, 2015, Company B signed the last supply list.

On November 30, 2015, Company B paid some of the payment to Company A, and later did not pay.

On November 22, 2019, Company A filed a lawsuit to recover the remaining payment from Company B. Company B claimed that the time limit of the lawsuit had passed.

In the lawsuit, both parties recognized that, except for the lawsuit, Company A did not claim the goods to Company B.

In this case, the two parties did not make an agreement on the payment time, and they could not determine the period of determination of the contract or interpret the contract.

According to Article 602 of the Civil Code, the unknown remedy method of the performance period of the sales contract is consistent with the general regulations, that is, the seller can request the buyer to perform at any time, but the necessary preparation period should be given.

If the parties No. 602 of the Civil Code do not have the provisions of the delivery period or the agreement that the parties do not agreed on or the agreement are unclear, the provisions of Article 510, Article 511 (411, (411, and 4 of this Law are applied.

However, the contract law should be applied before the implementation of the Civil Code. The contract in the contract law is different from the unknown remedy method of the unknown period in the general regulations, which has led to the confusion in the application of law. According to the provisions of Article 62 of the Contract Law (General Principles), Company A can request Company B to pay at any time; according to the provisions of Article 161 of the Contract Law (the contract section of the contract), Company B shall pay when receiving the goods.

Article 62 of the Contract Law of the Parties that the parties are not clear about the content of the contract, and the following provisions are not determined in accordance with the provisions of Article 61 of this Law. The following provisions are applicable:

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(4) If the performance period is not clear, the debtor can perform at any time, and the creditors can also request the performance at any time, but the necessary preparation time should be given to the other party.

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Article 161 The buyer shall pay the price at the agreed time. If the payment time is not agreed or the agreement is not clear, if it is still not determined in accordance with the provisions of Article 61 of this Law, the buyer shall pay while receiving the subject matter or extraction of the target.

So the question is when when does the lawsuit of the payment of payment be calculated from?

In the trial of the case, some opinions believed that the lawsuit request of Company A had exceeded the timeliness of the lawsuit. The reason is that according to the law, the buyer shall pay the goods or pay the consumption documents while the payment time cannot be determined.

In this case, Company B shall pay the goods at the same time as the company A is delivered, so the payment time should be the last time the supply list is signed on the supply list, that is, September 28, 2015, at this time Essence However, Company B later paid the payment, causing the timeliness of the lawsuit. The period of the lawsuit was re -calculated from November 30, 2015. As of November 22, 2019, when Company A sued, it had been more than 3 years of litigation.

We believe that the current civil code has unified the general rules of the contract law with the special provisions of the buying and selling contract. After the civil code takes effect, the seller no longer enjoy the right to choose or perform at any time.

However, for such disputes that occur before the civil code, it is necessary to clarify the nature of instantaneous performance in the contract law and the performance of the clause at any time, accurately grasp the relationship between the duration of the performance period and the timeliness of litigation, and correctly play the institutional role of the timeliness of litigation.

In this case, Company A's prosecution did not exceed the time limit for litigation.

① When the performance period is unknown, the right to determine the rights of the seller rather than the obligation

When the sales contract is not agreed or unknown, the order of filling the blank of the contract is the first agreement to supplement, and it cannot be supplemented. It is still impossible to determine that the debtor can perform at any time, and the creditors can also request the performance at any time, but the necessary preparation time for the other party should be. For the sales contract, Article 161 of the Contract Law provides an exception of the performance time, that is, the buyer shall pay at the same time as receiving the subject matter or extraction of the target. This provision is based on the convention of a sales contract, and many countries also have similar regulations. It should be clear that this article gives the seller's right to request the buyer to pay immediately when delivering the goods, but it does not allow the seller to claim the right at that time.

② The relationship between the duration of the performance period and the timeliness of the litigation should be correctly understood

Litigation is calculated from the date when the right holder knows or should know that rights are infringed. Generally speaking, the expiry of the performance period, then the right holder of the rights should know that the rights are damaged. At this time, the term of the contract performance is the same as the starting point of the litigation. However, when the period of performance is not clear, the right holder cannot clearly know whether the rights of rights are damaged, and the timeliness of litigation does not necessarily count. Only when the right holder clearly claims the rights and knows the damage to the rights, will the timeliness of the lawsuit meet the design intention of the timeliness of the lawsuit. In the buying and selling contract, this concept should also be held. The seller can choose to request the buyer to perform or perform the goods or documents at the same time as it is delivered. If the seller does not claim its rights, according to Article 161 of the Contract Law, and uses the delivery time as the point of the expiry of the performance period, in fact, the seller deprives the seller's right to choose the duration of the performance period, which is contrary to the principle of autonomous autonomy.

In practice, based on the consideration of the buyer's market and the maintenance of customer relationships, sellers often choose to ask the buyer to pay immediately, but to acquiescence the buyer's broad limit. In this case, if the judiciary forcibly intervene in replacing the will of the parties, it is improper restrictions on both parties to the buying and selling contract, which reduces the flexibility of transactions and has the principle of violation of business law to promote transactions. ③ Accurately grasp the judicial orientation of the timeliness of litigation

With the development of the commodity economy, while the pursuit of transaction security, legislators have also begun to pay attention to the fast and efficiency of transactions. In the process of the development of the legal system of litigation, the balance between transaction security and transaction efficiency is always balanced. Essence Litigation is designed to urge the right holders to be neglected, rather than the legalization of the behavior that owed debts. Therefore, in the trial practice, the determination of the timeliness of the lawsuit is generally grasped from wide. In this case, Company A had no fault, nor did he neglect of claiming rights. Therefore, the starting point of the timeliness of litigation should be determined that the starting point of the litigation is the date when Company A claims rights. The rules of "one -handed money, first -hand delivery" are the rights given by the law to the seller's right to respect the transaction practice. It is not advisable to calculate the timeliness of the lawsuit from the date of delivery without a clear intention.

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