合同变更禁止推定规则及适用

The Rule for Prohibiting Presumption of Contract Changes and Its Application

合同变更禁止推定,是指当事人变更合同的意思表示须以明示或者默示的但不含糊的方式为之,当事人未以这两种方式表达合同变更意愿的,禁止根据某种事实推定当事人存在变更合同主观意愿的规则。我国《合同法》第78条和《民法典合同编(草案二审稿)》第333条规定了当事人对合同变更的内容约定不明推定为未变更的规则,是禁止推定规则的内容之一,但还应当对合同变更禁止推定规则从正面加以肯定。合同变更禁止推定规则包括四层基本含义:一是合同变更须以明示的方式进行约定;二是合同变更虽然未明示、默示但不含糊的更新意图属于默示的合同变更意思表示;三是任何推定合同变更主观意图的做法都是违反法律的;四是合同变更不得推定规则对主体的拘束效力。

The rule for prohibiting presumption of contract changes means that the parties’ intention to change the contract must be expressed in an express or implied but unambiguous manner,if the parties do not express their willingness to change the contract in either way,it is forbidden to presume the subjective willingness of the party to change the contract based on certain facts. The rule for prohibiting the presumption contract changes is another expression in which the contract change must be expressed in an express or implied but unambiguous manner. Article 78 of Contract Law and Article333 of the Draft of the Contract Volume of Civil Code stipulates that the parties’ unclear content of the contract change is presumed to be unaltered. This is one of the contents of the rule for prohibiting presumption of contract changes. The rule for prohibiting presumption of contract changes should also be affirmed in a positive way. The rule for prohibiting presumption of contract changes includes four basic meanings. First,the contract change must be agreed in an express manner. Second,although the contract change is not expressly stated,if there is an implied and unambiguous update intention,it is an implied contract change meaning. Third,any presumption that there is a subjective intention to change the contract violates law. Fourth,the rule for prohibiting presumption of contract changes has a binding effect on the subject.