Case study:
Mr. Zhang signed the "Commercial Housing Sale and purchase contract" with the developer by way of mortgage payment, and the contract on the method of payment is as follows:
The buyer and seller agree that the buyer will pay for the house by way of mortgage. The down payment shall be 20% of the total house payment, that is, RMB 220000 yuan, which shall be paid by the buyer within 3 days from the date of signing the contract; the remaining purchase amount, that is, RMB 440000 yuan, shall be paid by the buyer by applying for a loan from the bank, but the buyer shall complete all loan formalities within 60 days from the date of signing the contract and ensure that the seller receives the loan.
After the contract was signed, Mr. Zhang paid the down payment in accordance with the contract and submitted the loan application materials to the bank in time. Two months passed quickly, but Mr Zhang's loan was never put down. after inquiries, the bank refused to grant the loan because Mr Zhang's ID card number was the same as that of others. Hearing the news, Mr. Zhang immediately went to the police station to make an inquiry and concluded that Mr. Zhang's ID card number was correct. Mr. Zhang held the certificate issued by the police station and went to the bank. The bank read the certificate and still refused to grant the loan. Because the loan was not approved, Mr. Zhang was unable to pay the rest of the purchase, so Mr. Zhang asked the developer to check out.
Comments by lawyers:
In accordance with the requirements of banks and housing fund management centers, home buyers apply for loans on the premise that a house purchase contract has been signed. As a necessary clause of the purchase contract, the buyer and seller need to be clearly agreed on in the purchase contract. In other words, before applying for a loan, the buyer has agreed on the loan payment method that needs to be approved by a third party outside the purchase contract-the bank or the housing fund management center when signing the purchase contract. If the loan application is approved, the buyer can use the loan to pay the remaining purchase money. if the loan application is not approved, the agreement of using the loan to pay the remaining purchase can not be realized. From the above analysis, the mortgage payment method agreed by both buyers and sellers when signing the purchase contract is only a clause to be determined, which is based on the loan approved by the bank and the housing fund management center. If the bank or housing fund management center does not approve the loan application, the mortgage payment method agreed between the buyer and seller becomes an invalid clause. If the loan application is not approved by the bank or the housing fund management center, the buyer will not be liable for breach of contract due to the overdue payment due to the invalid terms of payment. At this time, the buyer and seller can sign a supplementary agreement and re-agree on the terms of payment. If the two parties are unable to reach a new agreement, because the original payment method is invalid, resulting in the purchase contract can not be performed, both parties can terminate the purchase contract. If the bank or the housing fund management center does not approve the loan due to the reasons of the buyer, such as submitting false proof materials, the buyer shall not bear the liability for breach of contract, but shall bear the corresponding liability for fault, if this causes both parties to terminate the contract, the developer may demand certain compensation for losses from the buyer. It should also be noted that if the overdue payment is caused by the failure of the buyer to submit the loan application materials in time, the buyer shall bear the liability for breach of contract of the overdue payment, which shall be dealt with in accordance with the contract. Therefore, according to the provisions of the interpretation of the Supreme people's Court on several issues concerning the Application of Law to the trial of Commercial Housing Sale contract cases, if the buyer is stipulated in the commercial housing sales contract to pay by way of guaranteed loan, if the reasons not attributable to both parties fail to conclude the commercial housing guarantee loan contract and cause the commercial housing sales contract to be unable to continue to perform, the parties may request termination of the contract. Therefore, in this case, due to reasons outside the will of Mr. Zhang, the loan was not approved, and neither side of the contract was at fault, so Mr. Zhang has the right to terminate the contract and can ask the developer to return the purchase money and interest paid.
1. Fu is a wholesaler of shoe materials. From March 2006 to August 2007, he supplied a shoe factory with a total value of 437000 yuan. The shoe factory repeatedly failed to abide by the agreed time to pay, and finally refused to pay under the pretext of the quality of the goods. Fu had no choice but to entrust a lawyer to bring a lawsuit to the court, and the lawyer carefully prepared all the evidentiary materials needed for the sue. after the first and second instance of the court, the shoe factory finally ruled that the shoe factory paid a total of 437000 yuan. saved all the economic losses for the payment.
2. An electroplating factory processes a batch of goods for a spring factory with a total amount of 1.2 million yuan. after the goods are processed and delivered to the spring factory, the factory refuses to pay the processing fee of 1.2 million yuan. According to the statement of the electroplating factory, the spring factory is likely to close down in the near future, and the payment of 1.2 million yuan will not be recovered at that time. In view of this actual situation, the electroplating factory applied to the court for property preservation at the suggestion of a lawyer, seized the property of the spring factory worth 1.2 million yuan, and then filed a lawsuit to the court. Finally, the court ruled that the spring factory paid 1.2 million yuan in full to the electroplating factory, which was successfully executed.
3. A clothing limited company conducted a transaction with a garment factory in the sale of goods, but the two sides did not sign a written contract for sale and purchase due to various reasons. The clothing company bought the clothes from the clothing factory as a buyer. After the clothing company made the first payment, the clothing factory only sent 1000 sample clothes to the clothing company and asked the clothing company to remit another 50000 yuan before they could continue to deliver the goods. The clothing company, on the other hand, required to send the goods that should be sent after the first payment before remitting money. As a result, there was a dispute between the two sides. After many negotiations, the clothing factory could not reach a consensus, and the clothing factory stopped shipping. The clothing company caused a chain breach of contract because it could not get the goods in time and suffered heavy losses. After the clothing company entrusted a lawyer to bring a civil lawsuit to the people's court in accordance with the law, requiring the garment factory to bear the liability for breach of contract. With the help of the lawyer, the court finally ruled that the garment factory should bear the liability for breach of contract in accordance with the law; the clothing company effectively recovered the losses suffered as a result of the other party's breach of contract.
4. Zhou is the owner of a product processing factory. on March 15, 2008, Zhou signed a "purchase and sales contract" with Liu. The two sides agreed in the contract that Liu bought a product from Zhou, and Liu ended the payment once every delivery reached 80,000 yuan. The payment should be paid within seven days; in the event of overdue payment, Liu pays 3/1000 of the arrears to Zhou every day. After the two sides signed the contract, Zhou delivered the goods according to the requirements of the contract, but after Liu received the goods, he failed to pay Zhou as agreed in the contract. After Zhou urged him many times, he still failed to pay in accordance with the contract. On the contrary, he informed Zhou to stop delivering the goods, resulting in a backlog of more than 40,000 yuan worth of products produced by Zhou. After many consultations with Liu, Zhou was unable to reach an agreement. Later, Zhou entrusted a lawyer to file a lawsuit with the people's court in accordance with the law, requiring Liu to pay for the goods and bear the liability for breach of contract. With the help of the lawyer, Zhou finally recovered the payment and received the corresponding compensation.
5. Introduction of the case
Plaintiff: company A.
Defendant: company B.
On June 28, 2005, Company A signed a "purchase and sales contract" with Company B, stipulating that Company A will supply intercom equipment to Company B with a total contract price of 58000 yuan, and the terms of payment shall be within three days from the date of signing the contract. Company B will pay 20% of the total amount of equipment in advance, that is, 11600 yuan, and pay 30% of the total amount of equipment, that is, 17400 yuan when picking up the goods. If the acceptance date of company B exceeds one and a half months (calculated from the date of signing of this contract), the project of company B shall be deemed to be qualified; 3% of the total price of equipment, that is, 1740 yuan as a quality guarantee, shall be paid within three months from the date of signing this contract.
After the signing of the contract, Company A supplied the agreed equipment according to the contract, Company B carried out the installation, and paid a total of 29000 yuan in advance and delivery, from August 11 to August 15, 2005. after the installation and commissioning of the visual intercom, Company An issued a report signed by the employees of Company B on "the initial adjustment is basically true", indicating that the monitoring effect is good.
Due to the failure of Company B to pay the remaining 29000 yuan in accordance with the contract, the two parties filed a dispute with the people's Court of District C of Chengdu in May 2007.
Both parties claim
Plaintiff Company A claimed that on June 28, 2005, the plaintiff signed a "purchase and sales contract", which agreed that the plaintiff would supply the defendant with intercom equipment. The plaintiff supplied all the goods according to the contract, but the defendant did not pay all the payment, and so far the outstanding payment of 29000 yuan. For this reason, the plaintiff ordered the defendant to pay 29000 yuan for the goods and 1600 yuan for interest on the funds, and to bear the litigation costs of this case.
Defendant B complained that it was a fact that the contract was signed and the defendant still had a payment of 29000 yuan (of which 1740 yuan was a guarantee deposit). The defendant's failure to pay was due to quality defects in the equipment provided by the plaintiff, so the conditions for the payment of the remaining payment and guarantee were not fulfilled, and the plaintiff's claim should be rejected.
Trial result
The people's Court of District C of Chengdu holds that the contractual relationship between Company An and Company B on the sale of intercom equipment does not violate the mandatory provisions of laws and regulations and should be legal and effective. Company A has fulfilled its supply obligations in accordance with the contract, and it is an indisputable fact that Company B still owes 29000 yuan. The focus of the dispute between the two parties lies in whether the equipment supplied has passed the acceptance inspection and whether the conditions for company B to pay the remaining money have been fulfilled. The court believes that the contract acceptance is calculated from the date of signing of the contract on June 28, 2005, and if the project acceptance date exceeds one and a half months, it shall be deemed to be qualified, part of the payment as a quality guarantee should also be paid within three months from the date of signing the contract. Since Company A supplied the goods on time in the performance of the contract, it has already exceeded the agreed project acceptance date and warranty period since the date of signing the contract, and Company B has approved the intercom equipment debugged by Company A. therefore, the terms of payment agreed upon in the contract have been met, and Company B should pay the remaining money. as to whether its objection to the quality of the equipment and related losses are established does not fall within the scope of this case. Therefore, since Company B has not paid the amount owed so far, it should bear the corresponding liability for breach of contract. Therefore, the reason for Company A to ask Company B to pay the amount owed and bear the interest on overdue payment is established, and the court supports it. Accordingly, in accordance with Article 120 of the Civil procedure Law of the people's Republic of China and Article 5, Article 60, paragraph 1, Article 107 and Article 109 of the contract Law of the people's Republic of China, the judgments are as follows:
1. Defendant Company B shall pay 29000 yuan to plaintiff Company A within ten days from the effective date of this judgment.
2. Defendant Company B shall pay the plaintiff Company A 1600 yuan in interest on overdue payment within 10 days from the effective date of this judgment.
The case acceptance fee of 282.5 yuan shall be borne by the defendant Company B.
Lawyer's comments
The focus of the dispute in this case is: whether the equipment provided by Company A has passed the acceptance inspection, and whether the conditions for Company B to pay the remaining money have been fulfilled.
In this case, the "purchase and sale contract" clearly stipulates that "47% of the project acceptance qualified payment", thus it can be seen that the condition for company B to pay the remaining payment is that the project acceptance is qualified; in addition, the "purchase and sale contract" also clearly stipulates that if it has not been accepted for more than one and a half months from the date of signing of the contract, it will be regarded as qualified for acceptance, thus limiting the time limit for acceptance, so the court supports the litigation request of Company A.
The main legal issues involved in this case are:
1. The time regarded as qualified for acceptance or the time of payment must be accurate. In this case, the time of acceptance is clear and accurate; therefore, the determination of the time of breach of contract starts from August 13, 2005 (calculation method: June 28, 2005 + 1.5 = August 12, 2005).
two。 The support for breach of contract of unagreed liquidated damages is low. If both parties agree on liquidated damages in accordance with the provisions of the contract Law, then the compensation except the principal will be different.
(1) if both parties agree that the liquidated damages shall be 10% of the total amount of the contract, the amount of compensation shall be 5800 yuan.
(2) if both parties agree that the liquidated damages shall be 20% of the outstanding part, the amount of compensation shall be 5800 yuan.
Because calculated based on the RMB loan interest rate, it is generally lower than the liquidated damages agreed upon by both parties, and the ratio of liquidated damages between (1) and (2) is not high, and the court will generally support it, so the contract should be signed with liquidated damages.
The "Purchase and Sales Contract" is an ordinary document often used by enterprises. It is a document in which the parties to the contract are autonomous. As long as the contract does not violate the mandatory provisions of laws and regulations, it should be legal and effective. Therefore, to sign the Purchase and Sales Contract well, the following points should be noted:
1. The entity signing the contract must be qualified, otherwise, the contract may be invalid.
2. The quality, acceptance standards and acceptance period of the subject matter should be clearly stipulated. If the agreement is not clear, it may lead to quality disputes and the buyer's refusal to accept the goods due to default on payment.
3. Clearly agree on the target price and payment period. Otherwise, there will be no standard and time limit for the buyer's payment, and disputes will easily arise.
4. Pay attention to the performance period, place, and method in the contract, which are related to practical interest issues such as whether a party performs reasonably and the transfer of risks of the subject matter.
5. Agreed liability for breach of contract is to solve the problem that one party will receive compensation for breach of contract and the other party will receive compensation. It is a compensation measure or penalty measure set up for the parties to the contract to better perform the contract.
