[Key words] sales contract dispute / tripartite agreement (transfer of contractual rights and obligations) / joint and several liability / warranty period
[introduction to the lawyer of this case] Zhang Guodong is a practicing lawyer of Liaoning Tongfang law firm. At present, the main service areas include administrative disputes and settlement, real estate and construction projects, commercial litigation and enterprise compliance, corporate governance and equity issues. At the same time, he has served large-scale state-owned enterprises and institutions and government institutions, including China Nonferrous Metals (Shenyang) Metallurgical Machinery Co., Ltd., Fushun Mining Group, Shenyang Conservatory of music, Liaoning Provincial Department of housing and urban rural development, Liaoning provincial emergency department, etc., and accumulated rich professional experience.
[case source] (2017) Xin 2324 min Chu No. 2081 (the parties have not appealed, and the judgment has taken effect)
[judgment points] the tripartite agreement (transfer of contractual rights and obligations) stipulates that the original debtor shall be jointly and severally liable for the payment obligations of the new debtor under the sales contract involved. However, joint and several liability is not equivalent to joint and several liability guarantee, and the creditor's claim is not limited by the guarantee period.
[basic case] on September 22, 2011, Jiarun company and Shenyang Metallurgical Company signed the procurement contract for multifunctional crown block equipment of phase I 450000 T / a electrolytic aluminum project of Jiarun company, agreeing that Shenyang Metallurgical Company would supply Jiarun company with 2 sets of 32 t electrolytic multifunctional crown blocks, with a unit price of 5.9 million yuan and a total price of 11.8 million yuan; The warranty period or quality assurance period is 18 months from the date of arrival or 12 months after start-up. Both parties have also agreed on the corresponding payment proportion and time in terms of advance payment, material input payment, progress payment, payment for goods, commissioning payment and quality assurance deposit. The quality assurance deposit stipulates that 10% of the price of each set of contract equipment shall be the last payment of this set of equipment. When the warranty period of each set of equipment expires, the contract equipment provided by Party B (Shenyang Metallurgical Company) fully complies with the technical requirements specified in this contract and has no quality problems, After Party A (Jiarun) has issued the final acceptance certificate of the contract equipment, Party A shall pay 10% of the price of the contract equipment to Party B within one month after Party A submits the following documents and Party A reviews them. On October 18, 2012, jiarunsi (Party A), Shenyang Metallurgical Company (Party B) and bicuifeng company (Party C) signed an agreement, which agreed that Party B agreed that Party A would transfer the multi-functional skycar logo of its purchase contract to Party C. After this agreement came into effect, Party C enjoyed the rights and interests of receiving invoices as agreed in the purchase contract and assumed various obligations and responsibilities that had not been performed by Party A; As the actual user of Party B, Party A shall still bear the rights, obligations and responsibilities agreed in the original purchase contract. And be responsible for equipment acceptance. It is also agreed that Party B has delivered the multi-functional crown block equipment to the site in September 2012 as agreed, which is now in the installation and commissioning stage; Party A has paid 8.48 million yuan to Party B, and Party C shall pay the remaining payment of 3.32 million yuan and Party B's contract performance security to the following account designated by Party B according to the time and method agreed in the purchase contract; The agreement shall come into force as of the date of signature and seal. Although Party A transfers all rights and obligations under the purchase contract to Party C, Party A agrees that Party C shall bear joint and several liabilities for the payment obligations under the contract and relevant liabilities for contract risks caused by Party C. After the aforesaid contract and agreement are signed, Shenyang metallurgy company will deliver the crown block according to the contract. On August 19, 2013, Jiarun company issued the equipment commissioning acceptance certificate, confirming that the crown block provided by Shenyang Zhijin company was qualified. On September 4, 2013, Shenyang Metallurgical Company paid a deposit of 500000 yuan to Jiarun company. According to the contract and agreement, Shenyang Metallurgical Company has successively issued invoices with a total amount of 11.8 million yuan to Jiarun company and bicuifeng company.
After the signing of the aforementioned contract, Jiarun company paid 8.48 million yuan to Shenyang Metallurgical Company. On November 12, 2012, bituifeng company delivered the acceptance bill of 1 million yuan, and then Shenyang Metallurgical Company returned 50000 yuan to bituifeng company. On May 9, 2016, Jiarun company returned 50000 yuan of deposit to Shenyang Metallurgical Company. At present, the defendant still has 2.37 million yuan of payment for goods and 450000 yuan of security deposit, which have not been paid or returned to Shenyang Metallurgical Company. Shenyang Metallurgical Company has repeatedly urged, but the second defendant has not paid so far.
The defendant Bi Cuifeng submitted a written opinion to argue that I. The plaintiff's claim of Shenyang Metallurgical Company was not recognized. The unpaid amount shall be subject to the amount reconciled between the plaintiff Shenyang Metallurgical Company and the defendant Jiarun company. The time and method of interest calculation shall be subject to the actual performance of the contract. 2、 The security deposit has nothing to do with the defendant bituifeng company and shall be returned by the defendant Jiarun company. The deposit has nothing to do with the defendant bicuifeng company, and the actual receiver is the defendant Jiarun company. The plaintiff's claim that the deposit should be returned by the defendant bicuifeng company has no factual and legal basis. 3、 The defendant Jiarun company shall be jointly and severally liable for the unpaid payment. As the agreement confirms that the defendant Jiarun company is the actual executor of the contract, the defendant Jiarun company is the payment obligor of the disputed contract, and the defendant Jiarun company does not exempt its payment obligation in the agreement, and it is agreed that it shall bear the joint and several payment obligations of the contract.
The defendant Jiarun company argued that the contractual rights and obligations involved in the case had been transferred to the defendant bituifeng company, and Jiarun company was only a joint and several guarantor, not the other party to the contract. As the guarantor of joint and several liability, Jiarun company will only undertake the guarantee liability within 6 months of the guarantee period if the two parties have not agreed on the guarantee period. Now that the guarantee period has passed, the plaintiff Shenyang Metallurgical Company has no right to require it to undertake the guarantee liability and should reject the claim.
[judgment result] the defendant bicuifeng company paid 2.82 million yuan of goods and security deposit to Shenyang Metallurgical Company, and the default loss was 568800 yuan. Jiarun company shall be jointly and severally liable for the above debts.
[reasons for adjudication] the court held that the words "guarantee and guarantee" did not appear in the three-party agreement involved in the case. The defendant Jiarun company claimed that it was the guarantor of joint and several liability, and did not provide the court with any evidence to prove the establishment of the guarantee relationship of joint and several liability. The defendant bicuifeng company and the plaintiff Shenyang Metallurgical Company also did not accept their defense opinions. The three-party agreement agreed that the defendant Jiarun company should bear joint and several liability for repayment, which did not violate the law, However, "joint and several repayment" cannot be equated with "guarantee". The opinions of the defendant Jiarun company not only violate the principle of contract interpretation, but also contradict with the subsequent return of the deposit, so this court will not accept them.
[relevant laws] Article 60 of the contract law of the people's Republic of China: the parties shall fully perform their obligations as agreed. The parties shall abide by the principle of good faith and perform the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
Article 107 in the contract law of the people's Republic of China, 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.
Article 159 of the contract law of the people's Republic of China the buyer shall pay the price in accordance with the agreed amount. Where the price is not prescribed or clearly prescribed, the provisions of Article 61 and item 2 of Article 62 of this Law shall apply.
Article 161 time of payment the buyer shall pay the price at the agreed time. Where the time of payment was not prescribed or clearly prescribed, and cannot be determined in accordance with the provisions of Article 61 of this law, the buyer shall make payment at the same time as receiving the subject matter or the document for taking delivery of the subject matter.
[lawyer's opinion] the author represents the plaintiff Shenyang Metallurgical Company. In this case, the agency thought took the concept of "joint and several liability" as the starting point, correctly defined the "joint and several liability" in Article 7 of the three-party agreement, and finally won the case. The details are as follows:
Article 7 of the three party agreement stipulates that "although Party A transfers all the rights and obligations under the purchase contract to Party C, Party A agrees to bear joint and several liabilities for Party C's payment obligations under the contract and relevant liabilities for contract risks caused by Party C".
The defendant Xinjiang Jiarun company held in the court trial that the "joint and several liability" undertaken by Xinjiang Jiarun company as stipulated in this clause was "joint and several guarantee (guarantee) liability" in nature, and the guarantee period should be applied; At the same time, the guarantee period shall be 6 months from September 2013, when the certificate of acceptance for equipment operation of aluminum plant of Xinjiang Jiarun resources Holding Co., Ltd. is issued, that is, the guarantee period is from September 2013 to March 2014. Since the plaintiff has never claimed rights from Xinjiang Jiarun company during this period, the defendant Xinjiang Jiarun company believes that the warranty period of this case has passed, and it does not need to bear the warranty liability.
The plaintiff Shenyang Metallurgical Company held that the opinions of Xinjiang Jiarun company lacked factual and legal basis, and violated the spirit of the basic judgment of the Supreme Court, which was completely wrong.
First of all, the "joint and several liability" in Article 7 of the agreement is not completely equivalent to the "joint and several guarantee (guarantee) liability". The defendant Xinjiang Jiarun company is wrong in its characterization. In nature, Article 7 of the agreement refers to the waiver of the defendant Xinjiang Jiarun company's right to perform the contract and the agreement on its obligations to perform the contract. It is a joint and several liability for performance, not a guarantee. "Joint and several liability" is an upper concept, while "joint and several guarantee (guarantee) liability" is a lower concept and a sub type of "joint and several liability". The defendant Xinjiang Jiarun company mistakenly equated "joint and several liability" with "joint and several guarantee (guarantee) liability", which belongs to the concept of substitution, and its characterization of the nature of Article 7 of the agreement is seriously wrong.
Secondly, the judgment of this case should follow the spirit of the Supreme People's Court (2017) Supreme People's court judgment No. 258 (the case has been attached to this proxy). In the case of disputes between Tonglian company, new direction company and Jiuyuan company and the company, the Supreme Court has determined in the (2017) Supreme People's court No. 258 judgment that "article 6.2.1 of the capital increase and share expansion agreement stipulates that Jiuyuan company shall bear joint and several liability for the performance of the equity repurchase obligation of new direction company, which is not clearly joint and several guarantee liability" (page 15) "The court considers that the joint and several guarantee liability is one of the situations of joint and several liability, but the joint and several guarantee liability can be divided into principal and subordinate liabilities, and the guarantee liability is subordinate liabilities" (page 16). It can be seen that the Supreme Court has determined that joint and several liability is not joint and several guarantee liability. The plaintiff has made a clear statement on this issue during the court trial and raised an objection to the defendant. Therefore, the judgment of this case should follow the basic judgment spirit of this judicial precedent and accurately determine the "joint and several liability" in Article 7 of the agreement. If the clause is characterized incorrectly, it will increase the plaintiff's liability and seriously damage the plaintiff's legitimate interests.
In combination with the above analysis, the "joint and several liability" agreed in Article 7 of the three parties' agreement is the joint and several liability for the performance of Xinjiang Jiarun company, and should not be recognized as joint and several guarantee (guarantee) liability. Therefore, there is no so-called "guarantee period" in this case. The defendant Xinjiang Jiarun company's opinion is contrary to the basic judgment spirit of the Supreme Court, and seriously lacks factual and legal basis.
The above contents are for reference only!