Recently, it has been exposed in the entertainment industry that the actress "85 Flowers", Ying Er, is suspected to have overturned her car. After a certain home brand she endorses received a deposit from consumers, she left the building empty and had no further information. Hou Yinger Studio issued a statement in response, stating that Yinger has not endorsed the home furnishing brand, but has been invited to participate in the event, and the related event has not yet been held. The studio has decided to terminate the event.

In recent years, incidents of brand termination have emerged one after another due to the collapse of celebrities' houses, and incidents of spokesperson termination due to the brand's "explosion of thunder" have also been common. So, in the case of a brand explosion, does a celebrity, as the brand's advertising spokesperson, have the right to unilaterally terminate the advertising endorsement contract after charging a huge endorsement fee? Is it necessary to compensate for a huge amount of endorsement fees or liquidated damages if the advertising endorsement contract is unilaterally terminated?

1、 The endorsement contract may stipulate that the spokesperson has the right to unilaterally terminate the contract

Advertising endorsement contracts generally stipulate "ethical clauses". For example, if the spokesperson violates national laws and regulations or is exposed by news media due to bad behavior during the contract period, causing serious negative impact on the brand or its products, the brand has the right to unilaterally terminate the contract, and the spokesperson should bear corresponding breach of contract liability. Correspondingly, advertising endorsement contracts may also stipulate "reverse ethical clauses". For example, if any product or service under the brand has serious quality issues, violates national laws and regulations, or is exposed by news media for serious negative effects, the spokesperson shall not be liable for any losses caused thereby. The spokesperson has the right to unilaterally terminate the contract, and the brand shall also bear corresponding breach of contract responsibilities.

If the brand side "explodes", the spokesperson can claim to terminate the endorsement based on the agreement on unilateral termination rights in the contract, which is simple and clear.

2、 Does the spokesperson have the statutory right to terminate?

In the industry, many advertising endorsement contracts are drafted by the brand party, and the brand party, as the first party, has a certain advantageous position. It only stipulates the brand party's unilateral termination right (moral clause), and does not stipulate that the spokesperson has the unilateral termination right (reverse moral clause). In this case, does the spokesperson have the legal termination right?

At this time, many people first think of the fundamental breach clause of the Civil Code. Article 563 of the Civil Code stipulates: "In any of the following circumstances, the parties may terminate the contract: (1) due to force majeure, the purpose of the contract cannot be achieved; (2) before the expiration of the performance period, one party clearly indicates or indicates through its own actions that it will not perform the main debt; (3) one party delays in performing the main debt and fails to perform it within a reasonable period after being urged; and (4) Either party delays in fulfilling its obligations or commits other breach of contract, resulting in the inability to achieve the purpose of the contract; （5） Other circumstances stipulated by law

However, when it comes to advertising endorsement contracts, the brand's "explosion of thunder" does not constitute force majeure; The main debt of the brand is to pay the endorsement fee, and the brand has not stated that it will not pay or delay payment of the endorsement fee; The purpose of the spokesperson's contract is to obtain the endorsement fee, and the brand's inability to achieve the contract purpose is attributed to the brand's inability to remove the advertisement after the brand's "explosion", rather than the spokesperson's inability to achieve the contract purpose. Therefore, the spokesperson's claim to terminate the contract based on the above reasons is not very appropriate.

Now let's take a look at the provisions of Articles 1022 and 1023 of the Civil Code, Article 1022 of the Civil Code stipulates: If the parties have no agreement or unclear agreement on the term of the portrait license, either party may terminate the portrait license contract at any time, but shall notify the other party before a reasonable period. If the parties have a clear agreement on the term of the portrait license, and the portrait owner has legitimate reasons, they may terminate the portrait license contract, but shall notify the other party before a reasonable period. If the termination of the contract causes losses to the other party Except for the reasons attributable to the owner of the portrait, compensation should be made for the losses. Article 1022 stipulates: "For the licensed use of names, etc., reference shall be made to the relevant provisions applicable to the licensed use of portraits. For the protection of the voice of natural persons, reference shall be made to the relevant provisions applicable to the protection of portrait rights

Specifically, when it comes to advertising endorsement contracts, the main content of the endorsement contract is that the spokesperson licenses their name, portrait, and voice to the brand, and the brand pays a licensing fee to the spokesperson. The spokesperson may exercise the statutory right of termination in accordance with the provisions of Articles 1022 and 1023 of the Civil Code. That is to say, if the endorsement contract does not specify the endorsement period or the agreement is not clear, the spokesperson can terminate the endorsement contract at any time. If the endorsement contract clearly stipulates the duration of the endorsement, the spokesperson may terminate the endorsement contract with legitimate reasons. And the brand's "explosion of thunder" is likely to bring negative feedback to the spokesperson, which should be a legitimate reason, at least in China's judicial practice, it is likely to be recognized as a legitimate reason.

3、 If the spokesperson exercises the legal right to terminate the contract, does it require compensation for losses?

According to Article 1022 of the Civil Code, "... if the termination of the contract causes losses to the other party, except for reasons that cannot be attributed to the portrait owner, compensation for the losses shall be made. The brand's "explosion of thunder" is the fault of the brand and not the fault of the spokesperson. On the contrary, if the spokesperson does not lift the endorsement, it will be condemned by public opinion and will have a negative impact on the spokesperson. The spokesperson terminates the endorsement contract on the grounds of the brand's "explosion of thunder", which is a "cause that cannot be attributed to the Xiao Xiangquan," so there is no need to compensate for losses.

Of course, in practice, unilateral termination of contracts by spokespersons is not as smooth. Many brand owners believe that the "lightning explosion" incident has not reached the level of serious negative impact and should not trigger unilateral termination rights clauses, and spokespersons have no right to terminate contracts; Or believe that the "explosion of thunder" incident is not a legitimate reason, and the spokesperson has no right to terminate the contract; Or it is believed that the spokesperson should compensate the brand party with a huge amount of endorsement fees and liquidated damages. Suggest spokespersons to hire professional lawyers to handle relevant matters and let 'professionals do professional things'!