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accessories mismatched with 190,000 yuan hermès bag brought from wechat moments court: support termination of contractrefund as the seller violates the principal of good faith
[2020-07-24]

"Exquisite black crocodile Hermès Birkin30 - authentic new arrivals from specialty store." Seeing such a message in the WeChat Moments, Xiao Fei was very excited and immediately bought it from the WeChat seller, but soon they went to court.    

Recently, the Shanghai No.1 Intermediate People's Court (hereinafter referred to as the "Shanghai No.1 Intermediate Court") publicly pronounced this case. The court of second instance decided to dismiss the appeal and affirm the original judgment as the WeChat seller violated the principal of good faith and the contract met the conditions of statutory dissolution.

 

[Case Review] 

In November 2018, Xiao Fei saw a message in WeChat Moments posted by Xiao Yu about selling second-hand Hermès bags, "200,000+ yuan for Hermès exquisite bag...You have to pay 400,000+ yuan to specialty store, with hundreds of thousands yuan for accessories, or pay 250,000+ yuan to others". Immediately, she contacted Xiao Yu and asked if the bag was "basically flawless". Xiao Yu replied "Yes ""Very new"" No scratches". Xiao Fei said again, "Give me full set including box, dustbag and raincoat". Xiao Yu agreed, "All accessories are available".

After a bargain, the price was made 190,000 yuan. Xiao Fei transferred the payment via Alipay immediately and reasserted that full set of accessories were provided together. She also said, "I don't want the bag if any accessory is missing", and stressed that "full set" includes "key, lock, dustbag, raincoat, box and felt protector".

The next day, noting that Xiao Yu had delivered the goods, Xiao Fei asked Xiao Yu if the key, lock and other accessories were complete and sent together. Xiao Yu said all accessories had been sent in a separate package.

However, after receiving the packages, Xiao Fei found that the felt protector was missing, and the key and lock didn't match with the bag. Xiao Fei required Xiao Yu to provide the matching key and lock, and Xiao Yu promised to try best to provide. Later, Xiao Fei expressed many times that she didn't want the bag if the matching accessories couldn't be provided, but got no reply from Xiao Yu gradually.

Xiao Fei then sued to the court, requesting that both sides terminate the contract, Xiao Yu refund the payment of 190,000 yuan, while Xiao Fei return the goods.

Xiao Fei believed that they had explicitly agreed upon the conditions of contract termination during communication. As Xiao Yu failed to deliver the felt protector, key and lock within a reasonable period of time, and Hermès bag received wasn't new and spot goods, the conditions of termination were satisfied. On the other hand, Xiao Yu believed that they didn't agree on the conditions of termination and she didn't receive the formal notice of termination from Xiao Fei; so, the contract should not be terminated.

 

[Case Study]

The court of first instance held that Xiao Fei's claim for rescission of the contract and refund of the payment has factual and contractual basis, and should be supported. It's ruled that Xiao Yu refund 190,000 yuan, while Xiao Fei return the goods. Dissatisfied with the judgment, Xiao Yu appealed to the Shanghai No.1 Intermediate Court. 

After the trial, the Shanghai No.1 Intermediate Court held that according to Xiao Yu's WeChat Moments, the bag involved was "new arrival", but in fact the bag and accessories were sent to Xiao Fei from different places. Xiao Yu didn't tell Xiao Fei the truth, violating the principle of good faith.

Seen from their WeChat chat records, Xiao Fei stressed many times after making the payment that bag accessories should be full set, and Xiao Yu agreed. However, pieces of evidence show that only parts of the accessories were provided, and the key and lock mismatched with the crocodile bag. Xiao Yu promised to try best to provide the matching key and lock, but failed to do so until the first instance prosecution.

As Xiao Yu failed to provide matching accessories within a reasonable period, making it possible for Xiao Fei to realize the purpose of buying the bag involved, Xiao Fei's claim for rescission of the contract and refund of the payment has factual and contractual basis, and should be supported. Xiao Fei had expressed her intention to rescind the contract and fulfilled the obligation of notification since she made a request for return after receiving the bag involved and filed this lawsuit to rescind the contract when no settlement was reached. Xiao Yu's argument of Xiao Fei's failure to perform the obligation of notification was inconsistent with the fact.

To sum up, the Shanghai No.1 Intermediate Court ruled to dismiss Xiao Yu's appeal and affirm the original judgment.

Civil subjects engaged in civil activities should follow the principle of good faith, uphold honesty and honor their commitments. In this case, the Hermès bag is a valuable luxury. Although the amount of accessories Xiao Yu failed to provide as agreed accounts for a small proportion in the total amount, it's an indispensable part of the bag and will directly affect the overall value of the luxury brand and buyers' consumption experience. Therefore, Xiao Yu has violated the principal of good faith. The court reminds that consumers should be more rational and cautious when buying goods, especially valuable goods through WeChat Moments. They should pay attention to the commodity information published by sellers, keep chat records and transaction vouchers, and protect their rights according to law whenever necessary.

(All names above are made up.)

 

[Relevant Laws]

I. Contract Law of the People's Republic of China

Article 61 Where, after the contract becomes effective, there is no agreement in the contract between the parties on such contents as quality, price or remuneration, or place of performance etc., or such agreement is ambiguous, the parties may agree upon supplementary terms through consultation; if a supplementary agreement cannot be reached, such terms shall be determined in accordance with the relevant provisions of the contract or the transaction practices.

Article 62 Where certain contents agreed upon by the parties in the contract are ambiguous and cannot be determined in accordance with the provisions in Article 61 of this Law, the following provisions shall be applied:

...

(4) if the time of performance is not clear, the obligor may perform, and the obligee may require performance, at any time, provided that the other party shall be given the time required for preparation;

...

Article 93 The parties may terminate a contract if they reach a consensus through consultation.

The parties may agree upon conditions under which either party may terminate the contract. Upon satisfaction of the conditions, the party who has the right to terminate may terminate the contract.

Article 96 A party demanding termination of a contract in accordance with the provisions of Paragraph 2 of Article 93 and Article 94 of this Law shall notify the other party. The contract shall be terminated upon the receipt of the notice by the other party. If the other party objects to such termination, it may petition the People's Court or an arbitration institution to adjudicate the validity of the termination of the contract.

Where the laws and administrative regulations so provide, the approval and registration procedures for the termination of the contract shall be gone through in accordance with such laws and regulations. 

Article 97 After the termination of a contract, performance shall cease if the contract has not been performed; if the contract has been performed, a party may, in accordance with the circumstances of performance or the nature of the contract, demand the other party to restore such party to its original state or adopt other remedial measures, and such party shall have the right to demand compensation for damage.  

Article 138 The seller shall deliver the subject matter by the time limit agreed upon. Where a time period for delivery is agreed upon, the seller may deliver at any time within the said time period.

Article 139 Where the time limit for delivery of the subject matter is not agreed upon between the parties or the agreement is not clear, the provisions of Article 61 and Item 4 of Article 62 shall be applied.

II. Civil Procedure Law of the People's Republic of China

Article 253 Where the party against whom enforcement is sought fails to perform any obligation of pecuniary payment during a period specified in a judgment, ruling or any other legal instrument, the party against whom enforcement is sought shall pay double interest for the debt for the period of deferred performance. If the party against whom enforcement is sought fails to perform any other obligation during a period specified in a judgment, ruling or any other legal instrument, the party against whom enforcement is sought shall pay a late fee for deferred performance.
  

(Writer: Wang Mengqian of Shanghai No.1 Intermediate Court)

 

 


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