What is the Effective Date of the Contract and the Time of
Ownership Transfer?
One of the most common disputes in contract disputes is the
dispute on the effective date of the contract. In order to avoid these
disputes, parties should refer to the nature of the validity of the contract as
well as distinguish the difference between effective date of the contract and
the time of ownership transfer.
Contract dispute lawyers in Vietnam
Regarding the effective date, contract shall
take effect when contract meets all condition of participants in contract,
condition of purpose and contents of contract and condition of form (in case
there is regulation). Specifically, participants in contract shall have legal
capacity in conformity with such contract and the participation shall base
entirely on voluntariy will. For the second condition, the purpose and contents
of the contract will not be contrary to the law and social ethics. When there
are enough conditions met, a contract legally entered into shall take effect
from the time when it is entered into, unless otherwise agreed or otherwise
provided by law. From the effective date of the
contract, parties shall mutually exercise rights and perform obligations as
agreed. A contract may be amended or terminated as agreed by the parties or
prescribed by law.
Through definition of the effective date of the contract, basic
difference between dealing with breaches of contracts which have taken effect
and dealing with breaches of invalid contracts can clearly be seen. In invalid
contracts, the general remedy rule is restoring everything to its original
state and returning to each other what have received. Dealing with
breaches of contracts, which have taken effect, must be based on the terms of
contract on how to handle such violations. If the contract does not stipulate,
the provisions of law on such violation will be applied. It should be noted
that there are many regulations from time to time, so the law must be properly
applied.
Specially, a contract violating conditions of
form validity shall be invalid, except that a party or the parties have fulfill
at least two third of the obligations in the contract. A court, at their
request, shall issue a decision on recognition of the validity of such contract. It is understood that the contract takes effect after the
Court’s judgments or decisions take effect. After the contract takes effect,
regulation of law will be applied to determine time of ownership transfer.
Contract which can be recognized as valid does not mean that such contract will
naturally take effect at the time of fulfilling two third of the obligations.
Recognition of the Court is to force parties to continue to execise the
obligations of the contract or resolve later disputes according to valid contract.
Time of ownership transfer normally belongs to stage of contract
enforcement, which is after the effective date of the contract. Except for
special contracts (such as contracts for gift), whose time of ownership
transfer can be a condition of making contract be valid. With respect to other
normal contract, time of ownership transfer is not related to validity
condition of contract, which does not make the contract be valid or invalid. It
should be noted that time of ownership transfer is stipulated differently with
respect to different contract, different property and different specific time.
According to Vietnam law of transfer of ownership rights by owner, when an
owner transfers ownership rights to another person through a contract for sale
and purchase, exchange, gift or loan, other contract of ownership transfer or
through inheritance, the ownership rights of the owner shall terminate from the
time when the ownership rights of the transferee arise.
The law stipulates that the time of
establishing ownership rights and other property-related right shall be
determined according to Civil Code 2015 and relevant laws. If there is no
relevant regulations of law, the agreement of the parties shall be applied. If
there is no either relevant regulations of law or agreement of the parties, the
time of establishing ownership rights and other property-related rights shall
be the time when the property is transferred. The time when the property is
transferred is the time when the obligee or his or her legal representative
possesses the property. In case where the property which
has been not transferred and there are yield or income arise from that
property, such yield or income shall belong to the transferor, unless otherwise
agreed.
Legal significance of determining time of ownership transfer is
to determine who is responsible for the risk and property. According to law,
owner shall bear all risks of the property under his or her ownership, unless
otherwise agreed or unless otherwise prescribed by laws. The holder of other
property-related rights shall bear risks of the property within his or her
right scope, unless otherwise agreed with the owner of the property or unless
otherwise prescribed by laws.
ANT Lawyers - a Law firm in Vietnam with international
standard, local expertise and strong international network. We focus on
customers’ needs and provide clients with a high quality legal advice and
services. For advice or serive request, please contact us via email
ant@antlawyers.vn, or call us +84 24 730 86 529.
0 comments:
Đăng nhận xét