Some questions and explanation for the lawsuit of purchase and sell contract
1.”If the parties have not agreed on the payment period in the sales contract, and the seller brings a lawsuit based on evidence such as a delivery note or a settlement statement (which also does not specify the payment period), when will the limitation period for the seller to require the buyer to pay the price commence?”
Answer: If the performance period stipulated in the sales contract is unclear and can be determined by reaching a supplementary agreement or in accordance with the relevant terms of the contract or trading habits, the limitation period for litigation shall be calculated from the date of expiration of the performance period. “If the time limit for performance cannot be determined, the starting point for the limitation period of action shall be determined in the following three circumstances:”
(1) “The creditor requires the debtor to perform his obligations, and specifies to the debtor the grace period for performing his obligations. The limitation period for litigation shall be calculated from the date on which the grace period for the creditor to require the debtor to perform his obligations expires;”;
(2) “If the debtor explicitly states that it will not perform its obligations when the creditor requests it to perform, the limitation period for litigation shall be calculated from the date on which the debtor explicitly states that it will not perform its obligations;”;
2. In the case where the plaintiff (seller) sued for payment for goods, the defendant (buyer) claimed that the quality of the product provided by the seller was not up to standard, but neither adduced evidence nor applied for appraisal, indicating that he would file a separate lawsuit. What should the people’s court do? Answer: The plaintiff sued and required the defendant to pay for the goods. If the defendant believes that the goods have quality defects and claims that the plaintiff should pay liquidated damages, compensate for losses, or request the termination of the contract, a counterclaim should be filed. “If the defendant stated that he would like to file a separate lawsuit for resolution, the people’s court will not review the product quality issues asserted by him in this case.”.
How to determine whether it is a custom contract or a sales contract in a specific case? Answer: The nature of the contract needs to be determined according to the contract agreement and the specific performance process of the contract. The customized contract shall be identified based on the following factors:
(1) The contract clearly stipulates the production process of the subject matter;
(2) The specific supplier of raw materials for the subject matter agreed in the contract;
(3) The provider of the subject matter produces a specific subject matter according to the specific requirements of the other party;
(4) The recipient of the subject matter agreed in the contract has the right to terminate the contract at any time;
(5) During the performance of the contract, the subject matter recipient supervises and inspects the production and operation of the subject matter provider.
“If the plaintiff sued and requested the defendant to pay for the goods, and the defendant did not recognize the authenticity of the defendant’s signature on the settlement certificate provided by the plaintiff, which party should apply for authentication?”?
Answer: In this case, whether or not authentication should be performed and who should apply for authentication should be handled according to the following circumstances:
(1) The plaintiff sued and requested the defendant to pay for the goods, and provided preliminary evidence indicating the establishment of the sales relationship, such as the sales contract, delivery note, settlement voucher, etc. The defendant raised objections to the authenticity of the signature on the settlement voucher, and the defendant should apply for authentication. If the defendant refuses to apply for authentication, the defendant shall bear the consequences of failing to provide evidence.
(2) “The plaintiff only claims the establishment of the sales contract relationship based on the settlement certificate, and the defendant has no objection to the establishment of the sales contract relationship. If he only raises an objection to the authenticity of the signature on the settlement certificate, the defendant shall apply for authentication.”.
Answer: If the goods provided by the seller have quality defects and the buyer claims to return the goods, and the people’s court finds out that there are quality problems with the goods but the responsibility for returning the goods is not established after the trial, it should explain the change of the litigation request to the buyer, and explicitly choose to apply other forms of liability for breach of contract in the litigation request. “If, after explanation, the buyer still refuses to modify the claim, the people’s court shall make a judgment rejecting the buyer’s claim.”.
6. How should the validity of the standard clause in the express delivery contract that only compensates within the limit when the express delivery is lost be determined?
A: The limited compensation clause is not a standard clause that unreasonably excludes one’s own liability, increases the other’s liability, and excludes the other’s main rights as stipulated in Article 497 (2) of the Civil Code, and should not generally be considered invalid. If the carrier intentionally or grossly negligently causes damage to the goods, the applicable limitation clause should be excluded to prevent the carrier from moral hazard. In addition, it should be noted that the express enterprise should take reasonable measures to prompt the standard terms related to limit compensation in the express bill. If the obligation of prompt is not fulfilled, the standard terms will not become the content of the contract.
7. Does the seller sue the buyer for payment of goods for the first time and obtain support, and then sue for payment of liquidated damages or losses for overdue payment for the second time?
Answer: The seller’s request for payment of goods and payment of liquidated damages for overdue payment or losses for overdue payment is based on different claim bases, and can be filed together or separately, which does not constitute a matter of no further consideration. However, from the perspective of saving litigation resources, the people’s court should explain to the seller at the time of the first lawsuit that it can also claim liquidated damages or losses for overdue payment. After explanation, the seller still requests to file a lawsuit in two installments, and the people’s court should grant permission.
8. After exceeding the “quality objection period” agreed in the contract, if the buyer claims that there are quality issues with the subject matter, what should be done?
Answer: “Quality objection period” is not a concept adopted in current legislation, but should be understood in the context as the period during which the buyer raises objections to the quality of the subject matter of the purchase and sale. The “inspection period” and “quality assurance period” stipulated in Article 621 of the Civil Code all fall within the scope of the quality objection period. According to the relevant provisions of the Civil Code, if the buyer claims that the quality of the subject matter does not comply with the contract beyond the quality objection period, the following rules shall be followed: (1) If both parties agree on the quality assurance period, regardless of whether the inspection period is agreed or not, if the buyer raises a quality objection beyond the quality assurance period, the people’s court will not support it.
(2) “If the parties have not agreed on a quality guarantee period, but have agreed on an inspection period, and the buyer raises a quality objection beyond the inspection period, the people’s court will not support it, except that the subject matter has hidden defects that cannot be detected within the inspection period.”. (3) “If both parties have not agreed on a quality guarantee period or an inspection period, and the buyer has not raised a quality objection within a reasonable period or within 2 years from the date of receipt of the subject matter, and subsequently claims that the quality of the subject matter does not comply with the contract, the people’s court shall not support it.”.