王轩军

一个当事人有多个营业地时，应如何确定该当事人的营业地，根据不同的法律规则，有不同的确定方法。我国法律通常确定当事人的主营业地为其营业地。而根据通则第1.11条定义2及注释2，在当事人有一个以上的营业地时，相关的“营业地”是指与合同和其履行具有最密切联系的营业地。

这里需要注意的是，在确定与某一合同及其履行有最密切联系的营业地时，应考虑双方当事人在签订合同时或在签订合同之前所知的或所考虑的情况。仅为一方当事人所知的情况或是双方当事人仅在合同签订后才知道的情况，不予考虑。

确定当事人的营业地具有重要意义，因为当事人的营业地与许多内容相关联，比如确定通知送达地，比如由于最后一日适逢节假日而顺延承诺期限应按什么地方的规定确定，比如确定履行地，再比如确定由哪方当事人申请公共许可的决定，等等。

通则第1.11条定义2及注释2的英文原文如下：

ARTICLE 1.11

(Definitions)

– where a party has more than one place of business the relevant “place of business” is that which has the closest relationship to the contract and its performance, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract;

COMMENT

2. Party with more than one place of business

For the purpose of the application of the Principles a party’s place of business is of relevance in a number of contexts such as the place for the delivery of notices (see Article 1.10(3)); a possible extension of the time of acceptance because of a holiday falling on the last day (see Article 1.12); the place of performance (Article 6.1.6) and the determination of the party who should apply for a public permission (Article 6.1.14(a)).

With reference to a party with multiple places of business (normally a central office and various branch offices) this Article lays down the rule that the relevant place of business should be considered to be that which has the closest relationship to the contract and to its performance. Nothing is said with respect to the case where the place of the conclusion of the contract and that of performance differ, but in such a case the latter would seem to be the more relevant one. In the determination of the place of business which has the closest relationship to a given contract and to its performance, regard is to be had to the circumstances known to or contemplated by both parties at any time before or at the conclusion of the contract. Facts known only to one of the parties or of which the parties became aware only after the conclusion of the contract cannot be taken into consideration.