论文部分内容阅读
提单中载明并入租约但并未指明并入何份租约时,我国最高法院的复函和法院的判例表明此时并入条款无效,即没有租约被并入提单。这种直接否定并入条款效力的做法并没有考虑到当事人对并入条款的合意和期待,也未依具体情形确定租约,因此此种做法解释有待商榷。对比英国法下对租约确定的做法,我国并入租约的确定应做更为细致的解释,而不能笼统的以未载明租约当事人名称和订立日期为由直接否定并入租约。
When the bill of lading contained the lease but did not specify the share of the lease, the reply of the Supreme Court of our country and the jurisprudence of the court showed that the incorporation clause was invalid at this time, ie no lease was incorporated into the bill of lading. This practice of directly denying the validity of a provision does not take into account the parties’ expectation and expectation of the inclusion clause nor the determination of a tenancy on a case-by-case basis. Therefore, the interpretation of this approach remains to be discussed. Contrast to the UK law to determine the practice of the lease, the determination of China’s incorporation of the lease should be more detailed explanation, and can not be generally not included in the name of the parties and the date of the contract is not directly incorporated into the lease.