13 Rules for Deciding the Liability for Breach of Contract for Sale and Purchase
Source: Law 45
1. The basis for adjudicating disputes over fraudulent sales of domestic automobiles
--Supreme People's Court Guiding Case No. 17: Zhang Li v. Beijing Heli Huatong Automobile Service Co.
The main points of the decision: ① for the family life consumption needs to buy a car, fraud disputes, can be dealt with in accordance with the “Law of the People's Republic of China on the Protection of Consumer Rights and Interests”. ② car sellers promised to sell consumers did not use or repair of the new car, consumers found after the purchase of the use or repair of the car, the seller can not prove that has fulfilled the obligation to inform the consumer's approval, constituting fraudulent sales, the consumer requires the seller in accordance with the law on protection of consumer rights and interests compensation for losses, the people's court shall be supported.
Case No.: First Instance: (2007) Chaomin Chu Zi No. 18230; Second Instance: (2008) Erzhong Minzheng Zi No. 00453
Trial Court: First instance: Beijing Chaoyang District People's Court; Second instance: Beijing No. 2 Intermediate People's Court
2. Whether a consumer who purchased food that did not comply with food safety standards could claim punitive damages
--Supreme People's Court Guiding Case No. 23: Sun Yinshan v. Nanjing Auchan Supermarket Co.
Decision: The People's Court shall support a consumer who purchases food that does not meet food safety standards and requests the seller or producer to pay ten times the price of the food in accordance with the provisions of the Food Safety Law or to pay compensation in accordance with other compensation standards stipulated by the law, regardless of whether or not he/she knew that the food did not meet the safety standards when he/she purchased the food.
Case No.: (2012) Jiangning Kai Min Chu Zi No. 646
Trial Court: Jiangning District People's Court, Nanjing, Jiangsu Province, China
3. Determination of whether the existence of defects in goods constitutes a fundamental breach of contract in the international sale of goods
--Supreme People's Court Guiding Case No. 107: Sinochem International (Singapore) Pte Ltd. v. ThyssenKrupp Metallurgical Products GmbH Dispute over Contract for the Sale and Purchase of International Goods
Decision: ① The country where the parties to the contract for the international sale of goods are located is a contracting state of the United Nations Convention on Contracts for the International Sale of Goods, and should give priority to the application of the provisions of the Convention, and where the Convention does not provide for the content, apply the law that has been agreed to be applicable in the contract. The United Nations Convention on Contracts for the International Sale of Goods shall not apply if the parties to the contract expressly exclude the application of the Convention. ② In a contract for the international sale of goods, the fact that the goods delivered by the seller, although defective, can be used or resold by the buyer with reasonable efforts shall not be regarded as a circumstance constituting a fundamental breach of contract under the United Nations Convention on Contracts for the International Sale of Goods.
Case No.: First Instance: (2009) Su Min San Chu Zi No. 0004; Second Instance: (2013) Min Si Zi Zi No. 35
Trial Court: First Instance: Jiangsu Higher People's Court; Second Instance: Supreme People's Court
4.4 The S store was awarded three times the price of the car for concealing the insurance accident of the vehicle.
--Luo Mou v. Jiangmen Municipal Automobile Sales & Service Co.
Decision: the subject matter of the transaction (car) had an insurance accident and the seller did not fulfill the obligation of perfect, adequate information to consumers, and lead to consumers in contravention of the true meaning of the circumstances of the transaction, the seller's behavior is a negative concealment of the facts, constituting a fraud on consumers, consumers have the right to request for additional compensation of triple the loss in accordance with the law.
Case No.: First Instance: (2021) Guangdong 0705 Minchu No. 11513; Second Instance: (2022) Guangdong 07 Minchu No. 4310
Trial Court: First Instance: Xinhui District People's Court of Jiangmen City, Guangdong Province; Second Instance: Intermediate People's Court of Jiangmen City, Guangdong Province
5.4S store concealment of automobile ever sales information constitutes fraud may apply punitive damages
--Huangmoumou v. Jiangsu a car sales company dispute over the contract of sale
Decision: the operator intentionally concealing important information about the goods, a serious violation of the consumer's right to know, its behavior constitutes sales fraud, the consumer request for three times the price of goods purchased in accordance with the compensation for losses, the people's court shall be supported. Consumers enjoy the right to know the real situation of their purchase, use of goods or services, the operator has to provide consumers with true and comprehensive information about the goods obligation. Jiangsu a car sales company deliberately conceal the fact that the vehicle in question had been sold, delivered to others, a serious violation of the consumer's right to know, its behavior has constituted sales fraud, should bear the punitive damages liability of three times the price of goods.
Case No.: First Instance: (2015) Dan Min Chu Zi No. 4828; Second Instance: (2016) Su 11 Min Final No. 1609; Re-trial: (2020) Su 11 Min Re No. 98
Trial court: first instance: Jiangsu Province Danyang City People's Court; second instance: Jiangsu Province Zhenjiang Intermediate People's Court; retrial: Jiangsu Province Zhenjiang Intermediate People's Court
6. The purchase of foodstuffs intentionally divided into several small payments and claiming compensation of 1000 yuan per settlement, shall be limited to reasonable life consumption needs within the total amount of payment to determine the basis for calculating punitive damages
--Zhang Mou v. Shanghai Certain Fresh Food Co.
Decision Summary: The purchaser intentionally made several or dozens of small payments in a single transaction, and in accordance with Article 148(2) of the Food Safety Law of the People's Republic of China, which stipulates that the amount of increased compensation shall be calculated according to the amount of RMB 1,000 for less than RMB 1,000, requested for compensation of RMB 1,000 for each settlement, and the calculation of punitive damages shall be made on a cumulative basis according to the number of settlements, which is not in accordance with the consumers' usual transaction habits, and is inconsistent with The spirit of the punitive damages system provided for in Article 148(2) of the Food Safety Law of the People's Republic of China is inconsistent. The People's Court shall, within the scope of reasonable life consumption needs, take the total amount of the price paid by the purchaser in installments as the base for calculating the punitive damages, and sentence the production operator to pay punitive damages of ten times the price.
Case No.: First Instance: (2016) Shanghai 0115 Minchu No. 27746; Second Instance: (2016) Shanghai 01 Minchu No. 10490
Trial court: first instance: Shanghai Pudong New District People's Court; second instance: Shanghai First Intermediate People's Court
7. Supporting the purchaser's request for punitive damages within the scope of reasonable life consumption needs
--Sha Mou v. Anhui a food science and technology co.
Decision: When applying Article 3 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Food and Drug Dispute Cases, the People's Court should combine Article 2 of the Protection of Consumer Rights and Interests Law and Article 148 of the Food Safety Law, and support the purchaser's request for punitive damages within the scope of “life consumption needs”. The “purchaser's” request for payment of punitive damages of ten times the price.
Case number: first instance: (2021) shanghai 7101 minchu 345; second instance: (2021) shanghai 03 min final 86
Trial Court: First Instance: Shanghai Railway Transportation Court; Second Instance: Shanghai Third Intermediate People's Court
8. The company did not have the status of a consumer under the Consumer Rights and Interests Protection Law and could not claim punitive damages under the Law.
--Jia Mou v. Beijing Mou Mou Company Sale and Purchase Contract Dispute Case
The main points of the decision: ① the company as a corporate legal person, its capacity should be based on the business license to determine, that is, engaged in the production and business activities set out in the business license, there is no need for life consumption, so the company does not have the status of consumers in the Protection of Consumer Rights and Interests Law. The company requested punitive damages under the consumer protection law, the people's court does not support. ② in the case of a party because it does not have the legal significance of the identity of consumers and can not claim punitive damages under the consumer protection law, does not exclude its identity as a buyer of goods, service contracts, in the civil code, product quality law, and other laws under the scope of adjustment to claim their rights.
Case No.: First instance: (2017) Beijing 0111 Minchu 9277; Second instance: (2018) Beijing 02 Minzhu 7119
Trial Court: First Instance: Beijing Fangshan District People's Court; Second Instance: Beijing No. 2 Intermediate People's Court
9. Determination of liability of counter renters to consumers
--Liu Mou v. Beijing Mou Mou Company, Zhejiang Mou Mou Company Sale and Purchase Contract Dispute Case
Decision: ① leased counter for sale, in the determination of the consumer and the seller of the contract of sale, first of all, should be based on the transaction to the consumer written vouchers contained in or stamped subject to determine; second, if the counter lessee transactions have been made clear to the consumer as the identity of the seller, even if with the collection of payment, invoices issued by the subject is not consistent, should also determine the counter lessee is the seller; finally, for the name of the lease is actually dependent on the business situation, the case of a company in zhejiang. Lessee is a seller; finally, for the name of the lease is actually dependent on the case of business, should be recognized as a counter lessee is a seller. ② counter lessees on the leased counter sellers have the supervision and management responsibility, the seller in the lease period of illegal damage to the rights of consumers, whether it is a breach of contract or tort damages, in line with the “People's Republic of China Protection of Consumers Rights and Interests Act” Article 43 of the case, the consumer has the right to require the counter lessees to bear the corresponding responsibility. After assuming responsibility, the counter renter has the right to recover from the seller.
Case No.: First Instance: (2018) Beijing 0101 Minchu 9001; Second Instance: (2018) Beijing 02 Minchu 8350
Trial court: first instance: Beijing Dongcheng District People's Court; second instance: Beijing No. 2 Intermediate People's Court
10. Determination of the Defaulting Party's Failure to Request Performance within a Reasonable Period Causing the Defaulting Party to Fail to Achieve the Purpose of the Contract
--Shanghai Water Equipment Co. v. Suqian Decoration Engineering Co.
Decision: According to Article 580 of the Civil Code, if the defaulting party fails to perform the non-monetary obligation or the performance of the non-monetary obligation is not in accordance with the agreement, but the defaulting party fails to request the performance within a reasonable period of time so that the defaulting party cannot realize the purpose of the contract, the defaulting party also has the right to terminate the relationship of rights and obligations of the contract. Among them, the reasonable period of time can be identified by the prior agreement of the parties, the subsequent supplementary agreement, according to the terms of the contract or the custom of the transaction, as well as by reference to the provisions of the law. Reasonable period of time should be in line with the expectations of the parties and the general evaluation standards of the public, the type of the contract, the subject matter, nature, purpose, performance, trading habits and other factors, and follow the principle of good faith to be determined. Reasonable period of time should lead to the breaching party to protect the benefits of the law in an unattainable state, continue to perform the breaching party is clearly unfair to the breaching party and other contractual purposes can not be achieved.
Case number: first instance: (2020) shanghai 0116 minchu 10613; second instance: (2021) shanghai 01 min final 2526
Trial Court: First Instance: Shanghai Jinshan District People's Court; Second Instance: Shanghai First Intermediate People's Court
11. Without agreeing on the liability for late payment, SMEs may request large enterprises to pay interest on late payment at a daily rate of five ten thousandths of a percent
--Ltd. v. Shanghai Engineering Bureau Group Co.
Decision: If a party claims that it is a small or medium-sized enterprise, the People's Court may refer to the “Provisions on the Standardization of Small and Medium-sized Enterprises” formulated by the Ministry of Industry and Information Technology of the People's Republic of China and other departments, and make a comprehensive determination in light of the number of employees, operating revenues, total assets, and actual operating conditions of the enterprise; if a large enterprise delays the payment of contractual payments to a small or medium-sized enterprise, the large enterprise shall bear the loss of interest on the delayed payment even if the two parties have not agreed on a breach of contract. Compensation standards can refer to the application of the State Council formulated the “Regulations on the Protection of Payments to SMEs,” the relevant provisions, that is, large enterprises in the procurement of goods, delayed payments to SMEs and did not agree on the interest rate of late interest, in accordance with the daily interest rate of five ten thousandths of the payment of late interest; “Protection of Payments to SMEs Regulations” should be produced before the implementation of the overdue interest in accordance with the principle of non-retroactivity of the law does not apply to the regulations in the The calculation standards in the Regulations shall not be applied; after the implementation of the Regulations, if the default situation of late payment still continues, the relevant provisions of the Regulations on late interest may be applied.
Case No.: (2021) Shanghai 0113 Civil Court No. 13707
Court: Shanghai Baoshan District People's Court
12. Determination of the standard for calculation of interest by reference to the opinion of the Advisory Committee on the United Nations Convention on Contracts for the International Sale of Goods (CISG) - A German medical technology company v. A Ningbo company in a dispute over a contract for the international sale of goods
Decision: Article 84 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) stipulates that the seller shall pay interest on the return of the price, but does not provide for the criteria for calculating the interest rate, which is inconsistent with judicial practice. Therefore, the opinions of the Advisory Committee on the United Nations Convention on Contracts for the International Sale of Goods (CISG) can be referred to for an accurate understanding of the relevant provisions of the Convention.
Case No.: First Instance: (2021)Zhejiang 02 Minchu No. 824; Second trial: (2022) Zhejiang Minchu No. 1205
First Instance: Ningbo Intermediate People's Court of Zhejiang Province; Second Instance: Zhejiang Provincial Higher People's Court
13. Determination of Statutory Inspection of Exported Goods Constituting a Fundamental Breach of Contract
--Company U v. Cangzhou A Manufacturing Company International Goods Sale and Purchase Contract Dispute Case
Decision: ① in accordance with the “Import and Export Commodity Inspection Law of the People's Republic of China” need to implement the statutory inspection of goods, if the inspection procedures have been completed in accordance with state regulations, and can not be ipso facto recognized as in line with the contract. ② “United Nations Convention on Contracts for the International Sale of Goods” (CISG) for the quality of the goods objections to the time period (i.e., exclusion period) for a systematic and thorough provisions, but in terms of the statute of limitations, the “CISG” is not expressly provided for, but also the lack of “general principles” to fill the loophole in the law. This loophole can only be filled by invoking domestic law through private international law provisions in accordance with article 7, paragraph 2, of the CISG. In determining whether there has been a fundamental breach of contract under the CISG, attention should also be paid to the distinction between the period of exclusion of the duty to notify and the statute of limitations. Generally speaking, when a party to a contract sues for avoidance of the contract based on a fundamental breach of contract under the CISG, two prerequisites must be met, otherwise it will result in the loss of litigation or the right to win the lawsuit: firstly, to fulfill the duty of notification in accordance with the CISG, and the duty of notification needs to be fulfilled within two years of the discovery of the goods' lack of conformity to the agreement; and secondly, to bring a lawsuit within the four years' limitation period of the international sale and purchase contract under the law of our country. Litigation.
Case No.: First Instance: (2014) No. 7, Second Intermediate People's Court No. 3; Second Instance: (2015) No. 2,Tianjin Higher People's Court No. 4
Trial Court: First Instance: Tianjin Second Intermediate People's Court; Second Instance: Tianjin Higher People's Court
