"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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