On the Normative Structure of Approaches to Agreed Modification to Standard Terms
Agreed modification to the content of standard terms in long-term standardized transactions enjoys special approaches which are different from those to the modification to general agreements.Its conceptual basis lies in the structure of"generalized agreement".In terms of application of norms,regarding the offer to modification made by the user,the normative content of the obligation to give notice and explanation in the Paragraph 2 of Article 496 of Civil Code of China should be applied by analogy,and regarding the acceptance by counterparts,the stipulation on the forms of expression of intent in Article 140 of Civil Code of China should be regarded as a basis for interpretation.For the former,there is no possibility to,through interpretation,enjoy exceptional immunity from the obligation to give notice and explanation,thus all types of standard-terms contracts should include clear notice and explanation of modification.Moreover,to ensure the counterparts'possibility of knowing,the obligation should be performed in a way of individual-based rather than overall notice and explanation.For the latter,it is necessary to ease the standard for determining the expression of intent of counterparts as acceptance,but counterparts'pure silence cannot be regarded as acceptance and only at the time of changes in interests can"silence as acceptance"be confirmed through the interpretation of rules on the realization of intent;it is necessary to examine the specific direction of counterparts'behaviour of continuing the contract and only it is clearly directed at the modified content can acceptance be deduced.For modification to"provisions on presumed acceptance",despite such provisions enjoy the legal nature of"contractual agreement",but in order to achieve the legal effect of validly acquiring acceptance by counterparts,it is necessary to conduct normative interpretation of the applicable elements on basis of the standard of"rationality",that is,in terms of procedure,users should perform corresponding obligation to give notice and explanation,set a reasonable period,provide counterparts with proper mechanism of withdrawal;substantively,there are reasonable reasons for modification such as changes in legal and economic conditions or in line with the legitimate interests of users,and the core provisions on payment and provisions on the description of payment as discretionary law should be excluded from the objective of modification.
Standard TermsAgreed ModificationGeneralized AgreementOffer to ModificationAcceptance
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