[introduction of the lawyer in this case] Zhang Hongchao, senior partner of Liaoning Tongfang law firm, second-class lawyer, deputy director of the ideological, moral and Cultural Construction Committee of Liaoning Lawyers Association, deputy director of the reward and Punishment Committee of Shenyang Lawyers Association, and director of Shenyang Lawyers Association, is qualified as an independent director of a listed company. Since practicing, Lawyer Zhang Hongchao has handled many difficult cases. He has won the title of the first honest lawyer model and excellent lawyer in Liaoning Province. He is good at company establishment, enterprise restructuring, merger and reorganization, capital operation, construction project legal affairs, real estate enterprise legal affairs, contract legal affairs, duty crime defense business and other businesses. In terms of civil and commercial affairs, he has served as the legal adviser of many large companies and enterprises in Shenyang for many years, providing in-depth services for the production, operation and stable development of the client, and establishing a good mutual trust relationship with the client and relevant management departments. The high-quality legal service has created value for the enterprise and won wide respect and praise for Lawyer Zhang.
[key points of judgment] if a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
If the agent fails to perform its obligations to the third party due to the reason of the principal, the agent shall disclose the principal to the third party. Therefore, the third party may choose the agent or the principal as the counterpart to claim its rights, but the third party may not change the selected counterpart. However, if the agent enters into a contract with a third party in its own name and within the scope of authorization of the principal, and the third party is aware of the agency relationship between the agent and the principal at the time of the conclusion of the contract, the contract directly binds the principal and the third party, unless there is conclusive evidence to prove that the contract only binds the agent and the third party.
[basic case] on July 30, 2015, Yangzi door industry (Party B) and aoyixin Distribution Department (Party A) signed the purchase and installation contract for entrance doors and unit doors, which agreed that Party B should provide Party A with three defense doors (entrance lobby) and class A (entrance and equipment room), with a total price of 442320 yuan; Place of delivery: No. 381-5, Shenliao West Road, Shenyang Economic and Technological Development Zone; Delivery time: Party A must notify Party B in writing of the exact delivery date, arrival time, model, specification, quantity and location requirements 3 days before Party B delivers the goods; Party B shall deliver to Party A's construction site within 3 days after both parties confirm the technical parameters and drawings and receive Party A's written notice; Payment method: Party A shall pay 30% of the contract price within 3 days after the contract is signed and comes into effect. Party B shall start production after receiving the deposit. Within 3 days after the goods arrive at the construction site and pass the acceptance of the product quality by Party A and the supervisor, Party A shall pay 70% of the total payment for the batch, 99% of the total settlement price after installation, and the remaining 1% shall be used as the quality deposit, which shall be returned in full without interest after one year. Party a must accept the goods within 10 days, and hand over the key to Party A after the payment is received. Otherwise, Party A will be deemed to have breached the contract, and Party A will be fined 10% of the total contract price, and the losses will be borne by Party A. However, before Yangzi door signed the contract with the Distribution Department of aoyixin, Yangzi door had reached an oral agreement with Dengfeng company, the actual buyer of the case, on the type, price and quantity of doors to be purchased for the construction project of Minxin home. The Distribution Office of aoyixin also supplies fire doors for Dengfeng company. Therefore, Dengfeng company finally entrusted the Distribution Office of aoyixin to sign an overall sales contract with Yangzi door industry. On August 4, 2015, Dengfeng company paid all the deposit to the aoyixin Distribution Office, and then the aoyixin distribution office paid the deposit of 133000 yuan to Yangzi door industry. In September 2015, Yangzi door industry delivered the wooden doors to the place agreed in the contract, i.e. No. 381-5, Shenliao West Road, Shenyang Economic and Technological Development Zone (Minxin home construction site). Kong lingcen, the keeper of Minxin home construction site, signed on the delivery list of Yangzi door industry to confirm the receipt of 584 wooden doors. The Distribution Department of aoyixin confirmed the receipt of Kong lingcen, the keeper of Minxin home construction site.
[judgment result] the people's Court of Shenyang Economic and Technological Development Zone made a judgment of first instance on September 26, 2018: I. The defendant aoyixin door sales department paid the plaintiff yangyangmen Door Sales Office RMB 309320 within 10 days from the date of the judgment taking effect; 2、 The Distribution Department of aoyixin door industry shall pay the plaintiff Yangzi door industry distribution office a penalty of 44232 yuan within 10 days from the date of the judgment taking effect; Other claims of the plaintiff yangyangmen door sales office were rejected. After the judgment was pronounced, the Distribution Department of aoyixin disagreed with the civil judgment (2017) Liao 0191 min Chu No. 2662 of the people's Court of Shenyang Economic and Technological Development Zone and appealed, believing that the facts identified in the original trial were wrong. The original judgment held that "the appellant confirmed the receipt of Kong lingcen, the site keeper of Minxin home, and the appellee had supplied wooden doors to the appellant according to the contract" was wrong. The appellant did not confirm the signature of Kong lingcen, the site keeper of Minxin home. Moreover, in this case, according to the contract signed by the Distribution Department of aoyixin and the Distribution Office of Yangzi door, Yangzi door also failed to perform the obligation of delivery notice as agreed in the contract, so Yangzi door shall bear the losses by itself. Request to cancel the judgment of first instance and change the judgment according to law.
The Shenyang intermediate people's court made a final judgment on March 18, 2019: it rejected the appeal of the Distribution Department of aoyixin door industry and upheld the original judgment. After the final judgment, the Distribution Department of aoyixin door industry applied to the higher people's Court of Liaoning Province for a retrial, believing that it was the contract involved in the case signed with Yangzi door industry under the entrustment of Dengfeng company, and it was not the opposite party to the contract in this case. Moreover, Yangzi door industry should bear the responsibility for the unauthorized delivery of goods according to the contract.
The higher people's Court of Liaoning Province made a retrial ruling on June 24, 2019, rejecting the retrial application of the Distribution Department of aoyixin door industry.
[reason for adjudication] the focus of the dispute in this case is whether the Distribution Department of aoyixin door industry is the opposite party of the contract involved in the case, whether it forms an entrustment relationship with Dengfeng company, and whether the Distribution Department of Yangzi door industry should bear the responsibility for the unauthorized delivery.
The court of first instance held that the relationship between Yangzi door sales office and aoyixin door sales department was a sales contract. The purchase and installation contract for door entry and unit door signed by the plaintiff Shenyang Tiexi Yangzi door sales office and the defendant Shenyang Yuhong aoyixin door sales department is the true intention of both parties. The content does not violate the mandatory provisions of laws and administrative regulations, and is legal and effective. Both parties shall fully perform their respective obligations according to the contract. Now, the plaintiff yangyangmen door sales office has supplied wooden doors to the defendant oyixin door sales department in accordance with the contract, and the defendant oyixin door sales department in Yuhong District of Shenyang City failed to pay the plaintiff yangyangmen door sales office in full amount in accordance with the contract, which constitutes a breach of contract, and should pay 309320 yuan for the goods owed to the plaintiff yangyangmen door sales office in Tiexi District of Shenyang City. As for the liquidated damages, according to the purchase and installation contract of entrance door and unit door signed by Yangzi door sales office and oyixin door sales department, the defendant oyixin door sales department needs to accept within 10 days. Otherwise, Party A will be deemed to have breached the contract, and Party A will be fined 10% of the total contract price, and the losses will be borne by Party A. In this case, the plaintiff Yangzi Door Distribution Office has sent the wooden doors under the contract to the place agreed in the contract in September 2015, but the defendant aoyixin Door Distribution Department has not accepted them so far, which has constituted a breach of contract. Therefore, the plaintiff Yangzi door distribution office requires the defendant to bear the liquidated damages of RMB 44232 at 10% of the total contract price. The reasons are sufficient and based on the law, and the court of first instance supports it. As for the interest, because the plaintiff yangyangmen Door Distribution Office supported the claim of liquidated damages, the plaintiff yangyangmen Door Distribution Office requested the defendant aoyixin Door Distribution Department to pay interest, which was a repeated claim, which was not supported by the court of first instance. As for the defense that the payment conditions proposed by the defendant oyixin door sales department have not been fulfilled, since the delivery time of the plaintiff Yangzi door sales office is September 2015, according to the contract of both parties, the defendant oyixin door sales department shall accept the goods within 10 days. Now it is nearly 3 years since the delivery time of the plaintiff Yangzi door sales office, the defendant oyixin door sales department has not accepted the goods for a long time, and the site is not equipped with installation conditions, The defendant aoyixin door sales department also did not raise the quality problem of the wooden door, and the defendant aoyixin door sales department was lazy in the acceptance, which should be regarded as the achievement of the payment terms. Therefore, the court of first instance did not support the defense of the defendant aoyixin door sales department. As for the defendant oyixin door sales department's defense that the plaintiff Yangzi door sales office should claim payment from Shenyang Dengfeng Construction Engineering Co., Ltd., because Shenyang Dengfeng Construction Engineering Co., Ltd. is not the signing subject of the purchase and installation contract for door entry and unit door, according to the principle of contract relativity, the defendant oyixin door sales department should perform the obligations set in the contract. Even if, as stated in the defense of the defendant aoyixin door sales department, it was entrusted by Shenyang Dengfeng Construction Engineering Co., Ltd. to sign the "purchase and installation contract for door entry and unit door" with the plaintiff Yangzi door sales office, According to paragraph 2 of article 403 of the contract law of the people's Republic of China, "if the agent fails to perform its obligations to the third party due to the reason of the principal, the agent shall disclose the principal to the third party. Therefore, the third party may choose the agent or the principal as the counterpart to claim its rights, but the third party may not change the selected counterpart". As the trustee, the defendant aoyixin door sales department failed to perform its obligations to the plaintiff due to the reason of the client Shenyang Dengfeng Construction Engineering Co., Ltd. after disclosing the client Shenyang Dengfeng Construction Engineering Co., Ltd. to the plaintiff Yangzi door sales department, the plaintiff Yangzi door sales department chose to claim the rights from the trustee, i.e. the defendant, and there was nothing wrong. Therefore, the court of first instance did not support the defense of the defendant aoyixin door sales department.
The court of second instance held that the contract for purchase and installation of entrance door and unit door signed by both parties in this case was legal and effective, and both parties should properly perform their obligations according to the contract. As to whether the contract counterpart involved in this case is the Distribution Department of aoyixin door industry. Since both parties have signed and confirmed the written contract, and Yangzi door sales office has clearly confirmed that the counterpart of the contract is aoyixin door sales department, not Shenyang Dengfeng Construction Engineering Co., Ltd., the outsider of the case, the court of second instance legally determined that the buyer of the purchase and installation contract of door and unit door is aoyixin door sales department. The Sales Department of aoyixin door industry claimed that the counterpart of the contract involved should be Shenyang Dengfeng Construction Engineering Co., Ltd. because this claim contradicts the existing evidence, and the Sales Department of aoyixin door industry failed to provide sufficient evidence to reverse the written contract, the court of second instance did not accept this claim. On whether the goods involved in the case were sent to the agreed construction site by the Yangzi door sales office can be deemed as having fulfilled the contractual obligations to the aoyixin door sales department. The Sales Department of aoyixin door industry maintains that since both parties have clearly agreed in Article 5.1 of the purchase and installation contract for door entry and unit door, the contract seller must first send the delivery confirmation letter to the buyer in written form, and the buyer shall reply within 3 days after receiving the letter. If the buyer fails to reply, it shall be deemed as tacit agreement to deliver. At present, aoyixin Door Distribution Department, as the buyer, claims that it has not received the delivery confirmation letter agreed in the contract, nor has it informed Yangzi door distribution office to deliver the goods. Therefore, Yangzi Door Distribution Office's delivery to the construction site involved in the case shall not be deemed to have fulfilled the contractual obligations involved in the case to aoyixin Door Distribution Department. In this regard, the court of second instance held that, first of all, the doors traded in the contract involved in this case need to be installed and used according to the dimensions and specifications determined by the Sales Department of aoyixin door industry, and it can be determined that the Yangzi door sales office customized and produced the goods involved according to the requirements of the Sales Department of aoyixin door industry. In other words, the goods involved in the case can hardly be used for other purposes except for supply to the Distribution Department of aoyixin door industry. Therefore, from the perspective of fairness and reasonableness, the Distribution Department of aoyixin door industry cannot be recognized as having the right to reject the goods; Secondly, from the context of the contract, the Distribution Department of aoyixin door industry agreed to require the Yangzi door industry distribution office to send the goods to the construction site involved. In fact, the Yangzi door industry distribution office also sent the goods to the construction site involved, and the site keeper signed for them. Even if yangyangmen door distribution office does not send a letter to aoyixin Door Distribution Department, it can only be determined that yangyangmen Door Distribution Office has a minor fault, which is not enough to enable aoyixin Door Distribution Department to have the right of defense against refusing to pay the goods; Thirdly, in this case, since yangyangmen door distribution office did not sign any contract with the outsider, while aoyixin Door Distribution Department signed a general supply contract covering the goods involved in this case with the outsider, it is convenient for aoyixin Door Distribution Department to claim rights from the outsider, and it is extremely difficult for yangyangmen door distribution office to claim rights from the outsider. Therefore, it should support the claim of yangyangmen door distribution office.
The retrial court held that the Distribution Department of aoyixin was not only the signing subject of the contract involved in the case, but also the actual performance subject of the contract obligations involved in the case. Therefore, the original trial confirmed that the Distribution Department of aoyixin was the counterpart of the contract involved in the case. After yangyangmen distribution office delivered the goods to the place agreed in the contract, the Distribution Department of aoyixin actually received the goods. Therefore, the original review did not support the defense of aoyixin Distribution Department for refusing to pay the goods on the ground that yangyangmen distribution office did not send the delivery confirmation letter in written form as agreed in the contract, and it was not improper.
[relevant laws] paragraph 2 of article 403 of the contract law of the people's Republic of China stipulates that if the agent fails to perform its obligations to the third party due to the reason of the principal, the agent shall disclose the principal to the third party. Therefore, the third party may choose the agent or the principal as the counterpart to claim its rights, but the third party may not change the selected counterpart.
Article 107 of the contract law of the people's Republic of China stipulates that if a party fails to perform its contractual obligations or fails to perform its contractual obligations in accordance with the agreement, it shall bear the liability for breach of contract such as continuing to perform, taking remedial measures or compensating for losses.
[lawyer's opinion] the focus of this case is whether the Distribution Department of aoyixin door industry and Dengfeng company, an outsider of the case, constitute a trust relationship, Moreover, according to Article 402 of the contract law, "if the agent enters into a contract with a third party in its own name and within the scope of authorization of the principal, and the third party knows the agency relationship between the agent and the principal at the time of conclusion of the contract, the contract directly binds the principal and the third party, unless there is conclusive evidence to prove that the contract only binds the agent and the third party", Whether the contract involved in this case should directly bind the Yangzi door sales office and Dengfeng company. However, the people's courts at the two levels and the retrial court did not point out that the contract should directly bind the client and the third party. In the course of this case, the Yangzi Door Distribution Office said in the complaint that Dengfeng company, an outsider of the case, found the Yangzi door distribution office and requested to purchase the door for the construction project of Minxin home. The Yangzi door distribution office and Dengfeng company have also reached an oral agreement on the type, price and quantity of the purchased door. In fact, the two parties have entered into an oral sales contract on the sales of door types, Shall be the actual counterpart of the sales contract. The Sales Department of aoyixin door industry only signed the sales contract with Yangzi door industry sales office based on the entrustment of Dengfeng company. The keeper who signed for the goods was also an employee of Dengfeng company, not an employee of the Distribution Department of aoyixin door industry.
However, the court of first instance applied paragraph 2 of article 403 of the contract law in its judgment, that is, "if the agent fails to perform its obligations to the third party due to the reason of the principal, the agent shall disclose the principal to the third party, and the third party may therefore choose the agent or the principal as the counterpart to claim its rights, but the third party may not change the selected counterpart", It is determined that the Yangzi door sales office can claim rights from the aoyixin door sales department, However, article 402 of the contract law does not apply: "if the agent enters into a contract with a third party in its own name and within the scope of authorization of the principal, and the third party knows the agency relationship between the agent and the principal at the time of conclusion of the contract, the contract directly binds the principal and the third party, unless there is conclusive evidence to prove that the contract only binds the agent and the third party