The legal effect of pawn ticket means that pawn ticket, as a pawn contract, is legally binding on both parties in the process of pawn. For example, Article 8 of China's Contract Law stipulates that a legally established contract is legally binding on the parties. The parties shall perform their obligations as agreed, and shall not alter or terminate the contract without authorization. Contracts established according to law are protected by law. However, pawn ticket is a special and dual contract, so it has some unique characteristics, which need to be understood from the following aspects. Pawn as a contract, its legal effect must meet the requirements of general contract effect. Article 55 of the General Principles of Civil Law stipulates that a civil juristic act shall meet the following conditions: 1. The actor has corresponding capacity for civil conduct; 2. The meaning is true; It does not violate the law or public interest. These provisions of the general principles of the civil law basically summarize the conditions of a valid contract. Therefore, the effective elements of pawn tickets refer to:
(1) The pawnbroker is qualified.
If the lender must be a pawnshop established according to law; The borrower must be an adult, healthy, etc. Regarding the pawnbroker's capacity for civil conduct, the Missouri Pawning Law of the United States stipulates that minors under the age of 18 may not pawn; Article 2 1 of the Hong Kong Pawnbrokers Ordinance stipulates that pawnbrokers shall not collect-(a)? (b) anything pawned by a person under the age of 17. Taiwan Province Province's "Management Rules of Pawnshop" clearly points out that the pawnbroker shall not accept people who are drunk, have abnormal behavior, have no capacity or have limited capacity. This shows that if either of the pawnbrokers does not have legal pawnbroker qualification, the pawnbroker is an invalid pawnbroker contract.
(2) The meaning of the pawnshop is true.
As a contract is an agreement between the parties, the expression of the true will of the parties is one of the important conditions for the validity of the contract. The same applies to pawn tickets. For example, as stipulated in the "Measures for the Administration of Pawnshops" newly promulgated by the State Economic and Trade Commission, the amount of pawnbrokers' valuation, the amount of pawnbrokers and the duration of pawnbrokers, etc. It should be agreed by both sides of the pawnshop, that is, these important legal elements in the contents of the pawnshop must reflect the consent of both sides of the pawnshop, instead of deliberately reducing the legitimate rights and interests of the pawnshop by taking advantage of people's danger, as in the old days.
(3) The pawnbroker shall not violate the law and public interests.
For example, the problem of stolen goods in pawn practice is the most typical; The "double violation" behavior, that is, once the pawnshop collects stolen goods, especially maliciously, not only violates the mandatory provisions of the law, but also violates the good customs and destroys the social order. In this regard, pawn legislation in countries and regions around the world generally prohibits theft. For example, as stipulated in Article 24 of Taiwan Province Province's "Pawnshop Management Rules", pawnbrokers should register and accept pawnbrokers, with clear handwriting and no graffiti. If the pawnshop is identified as stolen goods by the police, it will be transferred to the judicial organs for handling according to law. Article 14 of the Measures for the Administration of Public Security in Pawnshop Industry of the Ministry of Public Security of China stipulates that pawnbrokers belonging to stolen goods shall be detained by the public security organs and handled in accordance with relevant state regulations; Pawn items suspected of stolen goods shall be temporarily stored and disposed of in accordance with relevant regulations after investigation. Visible, "double violation" pawn ticket is invalid pawn contract. The validity of pawn ticket includes two aspects, one is the establishment of pawn ticket as a pawn contract, and the other is the validity of pawn ticket as a pawn contract.
(1) pawn ticket establishment
Pawn is a contract. According to whether the contract needs to deliver the subject matter or not, the contract can be divided into promise contract and practice contract. An agreed contract, also known as an immaterial contract, refers to a contract established when both parties agree on their intentions, which is an employment contract. A practical contract, also known as a property contract, refers to a contract that requires the delivery of the subject matter in addition to the agreement of the parties, such as a deposit contract.
Judging from the pawn process, pawn ticket, as a pawn contract, obviously belongs to a practical contract, that is, both pawnbrokers must have actual account behavior, which is manifested by delivering the subject matter to each other and the money of the pawnshop's pawnbroker and pawnbroker respectively, thus entering the pawn transaction procedure of exchanging things for money, otherwise the pawn contract will not be established. It can be seen that the establishment of pawn ticket is marked by the transfer of pawn subject matter. On the one hand, the possession of pawns is transferred to pawn shops; On the other hand, the right to use funds is transferred to families. As for the pawnbroker's signature and seal on the pawn ticket, it is only a formal requirement, not a substantive requirement.
(2) The pawn ticket takes effect
Pawn is a contract. Legally speaking, there are usually two situations in which a contract takes effect. One is that the establishment time of the contract is the effective time of the contract, and the establishment and effectiveness are synchronized. For example, Article 44 1 of China's Contract Law stipulates that a contract established according to law shall take effect upon its establishment. Secondly, the establishment time of the contract is not the effective time of the contract, and the establishment and effectiveness are not synchronized. The contract will only take effect if it has special elements. For example, the second paragraph of Article 45 of China's Contract Law stipulates that laws and administrative regulations shall be approved and registered before they can take effect, and those provisions shall prevail. In other words, although some contracts are established, they may not take effect, but only after special procedures. These procedures generally include approval, registration, delivery, filing and other procedures that should be handled according to law.
Pawn is a dual contract, especially a pledge contract, and its establishment and entry into force belong to a separate form. For example, Article 64 of China's Guarantee Law stipulates that the pledge contract shall take effect when the pledged property is delivered to the pledgee. Article 76 also stipulates that if a bill of exchange, cheque, promissory note, bond, deposit slip, warehouse receipt or bill of lading is pledged, the title certificate shall be delivered to the pledgee within the time limit stipulated in the contract. The pledge contract shall take effect from the date of delivery of the certificate of rights. The above shows that pawn ticket belongs to a contract that must have special elements to take effect, which is also the essence of pawn contract different from general contract. The invalidation of pawn ticket refers to the termination of pawn ticket as a pawn contract, that is, the termination of the rights and obligations of the pawnbroker contained in the pawn ticket or the termination of the validity of the contract. According to Article 9 1 of China's Contract Law, the rights and obligations of this contract shall be terminated under any of the following circumstances:
(a) The debt has been performed in accordance with the contract;
(2) Termination of the contract;
(3) The debts offset each other;
(4) The debtor shall deposit the subject matter according to law.
(5) Exempting creditors from their debts;
(6) Creditor's rights and debts are owned by one person;
(seven) other circumstances stipulated by law or agreed by the parties to terminate.
This provision tells us that a contract is a civil legal relationship with a time limit and cannot exist forever. Under certain circumstances stipulated by law or agreed by the parties, the contractual relationship will objectively cease to exist, and the contractual creditor's rights and debts will be eliminated, that is, the contract will be terminated. Liquidation is one of the main reasons for the termination of the contract. Therefore, pawn tickets, especially due to the particularity of pawn contracts, are usually invalid for the following reasons.
(1) Redemption
In other words, paying off the debt means that the pawn ticket is invalid. That is to say, when the pawn period expires or within a certain grace period, the customer repays the pawnbroker's principal and interest and the corresponding expenses, the pawn contract is terminated.
(2) Continuation
That is, after paying off the previous pawn interest and corresponding expenses, the customer will continue to use the pawn money of the pawnshop for a certain period of time, and the original pawn ticket will be invalid at this time. However, in this case, the pawn legislation in different countries and regions of the world is not the same, and some pawn laws do not advocate that the original bonds are invalid. For example, paragraph 2 of Article 17 of the Hong Kong Pawnbrokers Ordinance stipulates that if a borrower wants to extend the loan before the expiration of four lunar months from the date of lending any money, the pawnbroker shall allow the loan to be extended after the borrower pays the interest payable at that time, and in any case, he shall deliver a new pawn ticket to the borrower. Paragraph 3 of Article 30 of the Pawn Management Measures of the People's Bank of China also stipulates that if the pawn is renewed, the interest and expenses of the original pawn shop shall be settled and the pawn ticket shall be replaced. However, the Measures for the Administration of Pawnshops of the State Economic and Trade Commission does not stipulate whether to replace the original pawn ticket after renewal.
(3) at death
That is, the pawnbroker's behavior of neither redemption nor renewal leads to the transfer of ownership of the pawnbroker or the pawnbroker's disposal according to law. At this point, the original pawn ticket is invalid. Article 17, paragraph 1 of Hong Kong Pawnbrokers Ordinance clearly stipulates that unless otherwise provided by this Ordinance and other laws, the pawned goods shall become the property of the pawnbroker if they are not redeemed for four lunar months from the date when the pawnbroker lends any money. This means that the pawn ticket will certainly become invalid after death. The second paragraph of Article 20 of the Management Rules of Pawnbroking Industry in Taiwan Province Province has a similar provision: the pawnbroker can still redeem or pay interest to renew the insurance five days after the expiration of the time limit. If the pawnbroker fails to redeem or pay interest after the expiration of the time limit, the pawnbroker will sell the original thing. It also shows that the ticket is invalid when death occurs.
(4) report the loss
That is, the customer lost the pawn ticket, reported it to the pawnshop and went through the formalities of reporting the loss, so the original pawn ticket was invalid. Article 29 of the State Economic and Trade Commission's Measures for the Administration of Pawnshops stipulates that if a pawnshop loses its pawnbroker ticket, it shall report the loss to the pawnshop in time, and can reissue the pawnbroker ticket after paying a certain handling fee. Paragraph 2 of Article 28 of Singapore's Pawn Commercial Law stipulates that anyone who claims to be authorized to hold a pawn ticket but claims that the pawn ticket has been lost, misplaced, damaged, stolen or obtained from it by improper means may apply to the pawnbroker for printing, and the pawnbroker shall give it to him. That is, if a pawnshop loses its pawn ticket, it can report the loss and reissue it, but the original pawn ticket is invalid.