Job Discussion Forums

[NickH]

Hi all, I am just about to actually sign my contract, but there is a big thing in the standard form that bothers me which may be familiar to you:

VIII. Breach Penalty

When either of the two parties fails to fulfill the contract or fails to fulfill the contract obligations according to the terms stipulated, that is, breaks the contract, it must pay a breach penalty of US $500 to 2,000 (or the equivalent in RMB).

If party B asks to cancel the contract due to events beyond control, it should produce certifications by the department concerned, obtain Party A�s consent, and pay its own return expenses; if Party B cancels the contract without valid reason, it should pay its own return expenses and pay a breach penalty to Party A.

If Party A asks to cancel the contract due to events beyond control, with the consent of Party B, it should pay Party B�s return expenses; if Party A cancels the contract without valid reason, it should pay Party B�s return expenses and pay a breach penalty to Party B.

I talked to my headmaster about inserting specifics about what is a "valid reason," but he says he doesn't know and he talked to the foreign affairs rep. and she says he's not allowed to change or add anything to it because it's the official standard document provided by the gov. Is it a valid reason to leave if my mother becomes seriously ill and I want to return to the US? No one knows or will tell me because it is arbitrarily in the hands of the Chinese government. I want to stay here and I like where I am well enough, but I feel extremely uncomfortable about entering into such a contract which says I must pay $2000 if I want or need to leave for some reason, regardless of circumstance or how much advance notice I give. What is the "standard" practice. Have most of you been aware of this and just sign away anyways, taking the risk? I need to figure it out by tommorrow and I feel very uncertain.

[7969]

as far as i know, that's a standard contract clause. its been in every contract i signed in china (3 of them now, all in different places).

the second paragraph of that clause is the one that i assume would apply if you asked to terminate the contract due to unforeseen circumstances. and depending on the circumstances, if you discuss leaving with your employer because of illness or other justified reasons, i'm sure you can work something out to avoid paying the breach penalty.

7969

[andyscott84]

But, it is also extremely hard to get fired. You would probably have to try and purposely get yourself kicked out for that to happen. Not that I've tried it or would promote trying it.

[Roger]

I honestly don't know why this provision should strike anyone as extraordinary! IT isn't, believe me!
In fact, certain of my peers make me believe it is an absolute necessity to maintain a modicum of continuity in our profession.

Having said this, you will most likely only pay if you abscond, break regulations repeatedly or cause your employer a hell of an embarrassment for incompetency.

On the other hand, it will be a lot harder to prove your employer wrong.

[Keath]

Here's a little FYI about contract law, breech penalties, are technically non-enforceable.. Parties need to show/prove damages (tangible or otherwise) in the court or during arbitration..

Still, its better to change the language of "Valid Reason " towards pointing to something illustrated in the contract itself, Eg. Valid reasons may include but are not limited to..

A school for example (Like huizhou E.F.) might try to extort the breach fee from you should you have a family member die in your home country requiring you to leave..

Its good to have the fees in place as for both parties, though without help the teacher will be on the losing side of any dispute with a school argued in a local arbitration venue.

www.journeyeast.org

[englishgibson]

EF Huizhou?! Scary staff!

That clause in the Contract does impose the obligations on you to follow your Contract, does it not? However, it also does give the employer an advantage/edge over any affairs/disagreements regarding your employment, does it not?
Nick, that is a standard contract in China. My advice to you is to sit down with that headmaster and discuss a �separate clause� between you and the school, although do keep in mind that the standard contract has got its number. So, when adding a �separate clause� if your headmaster agrees on such additional clause there, put that number there too. If you do not understand pm me.

Cheers and beers

[NickH]

Great suggestion. That's exactly what I decided to do.