Data
- Date:
- 29-09-2019
- Country:
- China
- Number:
- (2019) Supreme Law Min Shen 4108
- Court:
- Supreme People’s Court
- Parties:
- Tsuwa Club Ltd vs CECEP (Tianjin) Investment Group Co., Ltd.
Keywords
REMEDIES FOR BUYER'S BREACH OF CONTRACT (ART. 61 CISG) - SELLER'S RIGHT TO REQUIRE PAYMENT OF PRICE (ART. 62 CISG)
INTEREST - RIGHT TO INTEREST IN CASE OF LATE PAYMENT OF PRICE (ART. 78 CISG)
Abstract
[Abstract prepared by Li Jiaxin, ZUEL-SUR School of Law and Economics, Wuhan)
A Japanese company specializing in the import and export of metals purchased mixed waste metal from a Chinese seller. The seller delivered the goods and the relevant documents for customs clearance to a third party in the port of XINGANG, Tianjin, China, which allegedly acted as the buyer’s agent. As the buyer failed to pay the purchase price, the seller commenced a lawsuit against it. On its part, the buyer put forward that no valid agreement had been concluded between the parties, and it also disputed the authenticity of the Bill of Lading (B/L), arguing that it was submitted by another company and not by the buyer itself. Relying on Arts. 30 and 34 CISG, the buyer declared the contract avoided under Article 49(1)(a) CISG and demanded to be discharged from its obligation to pay the purchase price.
In the second instance, the Court recognized the contract between the parties as valid and enforceable and found for the seller. The buyer petitioned the Supreme Court for a retrial.
As to the applicable law, the Supreme Court held that, as maintained by most Chinese courts, where the parties are situated in contracting States of the CISG, the provisions of the Convention should prevail even if the parties had chosen the domestic law of the contracting state as the applicable law. For the matters not covered by the CISG, the law as agreed in the contract shall apply.
Regarding the merits, the Supreme Court found that the Second Instance Court was correct in finding that the seller had performed its obligation to deliver the goods as required by the contract. The seller had indeed submitted documents relating to the goods to a third party, which was authorized to act as an agent of the buyer based on a sealed letter of authorization issued by the buyer. Moreover, the Supreme Court stated that there was an import agency agreement between the third party and the buyer authorizing the former to take delivery of the goods. Thus, as per Arts. 61 and 62 CISG, the seller was entitled to require the buyer to pay the outstanding part of the purchase price and damages for late payment under Art. 78 CISG. In light of the above, the Supreme Court dismissed the buyer’s petition for retrial.
Fulltext
}}
Source
Original in Chinese and English Translation:
- available at https://cisg-online.org}}