14/07/2022 10:51

Is it possible to pay the contract in foreign currency in Vietnam?

Is it possible to pay the contract in foreign currency in Vietnam?

With the open economy, trade has become more convenient and easy, so the need to buy, sell and exchange between Vietnamese and foreign traders is more and more popular. A frequently asked question in commercial activities is: Is it possible to settle the contract in foreign currency? Do contracts with this content violate Vietnamese law?

Judgment 153/2019/DS-PT dated August 29, 2019 on the request for payment of house rent, deposit and fine has the following contents:

“On January 27, 2018 Mr. Y and Mr. T signed a contract to rent a house on Lot 73, map sheet 10, at the address 42 Street P, District N, Da Nang city. Under this contract, the rent is 2400 USD/month. The lease term is 5 years. Deposit: 7200 USD equivalent to 3 months rent, paid every 6 months. The rental purpose is to provide restaurant-hotel services. Mr. Y has paid 06 months' rent in the amount of 14,400 USD and 03 months deposit of 7,200 USD.

On January 27, 2018 Mr. T handed over the house to Mr. Y, the whole interior of the house was completely damaged, and all sanitary equipment could not be used and served for business purposes. Mr. Y has to hire a cleaning team at a cost of VND 30,000,000 to dismantle and move all old equipment out of the house and invest in replacing new equipment. On March 11, 2018, Mr. T locked the door of the house that Mr. Y rented and did not allow the cleaning team to enter the house to clean and install new equipment. Mr. T did not notify Mr. Y that he unilaterally terminated the tenancy agreement, violating the signed tenancy agreement."

The High People's Court in Da Nang accepted Mr. Y's request to cancel the rental contract because the content of the contract violated the law's prohibition.

According to the principle of restricting the use of foreign exchange in the territory of Vietnam specified in Article 3, Circular 32/2013/TT-NHNN, all transactions, payments, listing, advertisements, quotations, pricing, prices in contracts, agreements other similar forms (including conversion or adjustment of prices of goods and services, the value of contracts and agreements) of residents and non-residents are not allowed to be conducted in foreign exchange.

In addition, the 2005 Foreign Exchange Ordinance of Vietnam explains:

 1. Foreign exchanges comprises:

(.a) Currencies of other nations or the common European currency and other common currencies used in international and regional payments (hereinafter referred to as foreign currency);

(b) Foreign currency payment instruments, cheques, credit cards, bills of exchange, promissory notes and other payment instruments;

(c) All types of valuable papers denominated in foreign currencies including Government bonds, corporate bonds, term bonds, shares and other valuable papers;

(d) Gold belonging to the foreign exchange reserves of the State, gold in overseas' accounts of residents, and gold in the form of bullion, bars, granules and plate which is brought into or taken out of the territory of Vietnam;

(dd) The currency of the Socialist Republic of Vietnam in cases where it is remitted into or out of the territory of Vietnam or used as an instrument for international payments.

Thus, the rental contract signed between Mr. Y and Mr. T bi is considered invalid. When the contract is invalidated, the two parties will restore the original state and return to each other what they have received in accordance with the provisions of Article 131 of the Civil Code 2015.

On the other hand, for economic contracts, the issue of payment agreements in foreign currencies is stipulated in Resolution 04/2003/NQ-HDTP of the Judicial Council of the Supreme People's Court of Vietnam offering two solutions as follows:

-  If the economic contracts contain agreements on a price and payment in a foreign currency while one or both parties are not allowed to make payment in a foreign currency, the economic contract is considered to be completely void. the set. In this case, if one or both parties request the Court to settle, the Court shall declare the contract invalid and settle the consequences of the invalid contract according to general procedures.

-  If the economic contracts contain agreements on a price or payment in a foreign currency while one or both parties are not allowed to make payment in a foreign currency, then the parties agree to pay in foreign currency. Vietnam dong or in the content of the economic contract the parties agree to use foreign currency as the valuation currency but if the payment is in Vietnam dong, the economic contract shall not be considered completely invalid.

In addition, Resolution 04/2003/NQ-HDTP also stipulates that “For cases of returning the received properties being foreign currencies, the foreign currency-receiving parties shall have to return to the delivering parties the received foreign currency amounts converted into Vietnam dong at the buying exchange rate between the foreign currencies and Vietnam dong announced by the State Bank at the time of receiving such foreign currencies without having to pay interests, except for cases where the parties reach otherwise agreements not contrary to law provisions."

Nhu Y
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