-Sales of stone machinery

In the civil legal acts of buying and selling stone machinery, the subject matter is various mining equipment, processing equipment, large frame saw, sand saw, continuous mill and so on. It is characterized by disassembly, quality inspection, simple packaging and product acceptance before delivery. Therefore, we should list all matters in detail in the contents of the sales contract, clarify the rights and obligations of both parties, and ensure fairness and justice. Especially when the equipment is damaged or lost, and the buyer refuses to accept it because of the quality problem, the parties may face heavy losses and bear the liability for breach of contract.

Keywords: stone machinery sales contract ownership transfer risk transfer

I. Transfer of ownership of goods

In a sales contract, it is very important when the ownership of the goods is transferred from the seller to the buyer. It concerns the immediate interests of buyers and sellers.

Article 72 of China's General Principles of Civil Law stipulates: "If the property is acquired by contract or other legal means, the ownership of the property will be transferred from the time of delivery, except as otherwise provided by law or agreed by the parties". At the same time, this principle is still in use. Article 133 stipulates: "Unless otherwise stipulated by law or otherwise agreed by the parties, the ownership of the subject matter for sale shall be transferred from the delivery of the subject matter". In other words, the transfer of ownership adopts the principle of delivery. In fact, in most cases, this provision is conducive to transactions and clear ownership.

Let's give a simple example from the perspective of stone enterprises, so that we can see that this clause also has disadvantages: stone enterprise A and stone machinery enterprise B signed a sales contract on June 1 day, and Party A paid on the same day, and the agreed delivery date was July 1 day. If Party B goes bankrupt in June, then Party B's creditors will definitely regard the equipment as Party B's property and refuse to deliver it to Party A in bankruptcy liquidation. That is to say, if Party B goes bankrupt, according to the contract law, the ownership has not been transferred to Party A, because the equipment has not been delivered, and Party A has paid the payment, so that Party B can only participate in the distribution of the bankruptcy property as an ordinary creditor (note: Party B's bankruptcy property must first pay the expenses of the bankruptcy liquidation team, the taxes owed and the workers' wages), and cannot ask Party B to deliver the goods. As for how much money can be recovered, it is hard to say. Obviously unfair to A, there must be such an example. China Stone Net

The solution is to stipulate in the sales contract that "the ownership will be transferred when the sales contract is effectively established, and the full payment of the house purchase price is the effective requirement of the contract". In this way, stone enterprises obtain the property right of "possession, management, domination and exclusiveness" of equipment, rather than the creditor's right of "request and acceptance", which are two kinds of property rights with different effects. In principle, stone enterprises should not be greedy for cheap, and sign such sales contracts with some stone machinery enterprises, small workshops and some Sino-foreign joint ventures with unclear equity (foreign parties may withdraw their funds at political risk). It is best to establish business relations with enterprises with strong fixed assets, good reputation and good operating conditions. At the same time, we know that after-sales service is more concerned by stone enterprises.

From the perspective of stone machinery enterprises, stone machinery enterprise A and stone enterprise B signed a sales contract on June 1, and agreed that the delivery date was June. However, Party B proposed to issue an iou indicating the repayment date, and Party A accepted Party B's request in order to realize the transaction delivery. If B does not manage well afterwards and declares bankruptcy, then A will also face the above dilemma, and the solution is to add any agreement to the sales contract. In this way, the validity of the sales contract will be determined before payment. The sales contract and the IOU are signed and sealed together, and Party A reserves the ownership of the equipment before Party B pays. ..

Article 175 of the Contract Law stipulates: "If the parties agree to barter or transfer the ownership of the subject matter, the relevant provisions of the sales contract shall be referred to". This situation is rare in the sales contract of stone machinery, and the price exchange between stone machinery and stone usually occurs between some large enterprises.

Second, the risk transfer of goods.

The risk involved in China and some international conventions refers to the risk of damage or loss of goods, that is, the possibility of damage or loss of goods. Risk transfer is the most practical problem in the contract for the sale of goods, which is directly related to the balance of interests of the parties.

Article 142 of the Contract Law: "The risk of damage or loss of the subject matter shall be borne by the seller before delivery and by the buyer after delivery". It can be seen that the principle of delivery is adopted in China's Contract Law, so the delivery of goods has become a crucial issue. In fact, the delivery of goods usually means that the seller gives the buyer the possession and actual control of the goods.

Usually stone machinery needs to be transported. Article 14 1 of the Contract Law stipulates: "If the subject matter needs to be transported, the seller shall deliver the subject matter to the first carrier and the buyer". Article 144: "Unless otherwise agreed by the parties, the risk of damage or loss shall be borne by the buyer from the time the contract is established." . When the goods are delivered to the carrier, the seller has fulfilled the obligation of delivering the goods by delivering the goods to the first carrier. The carrier's acceptance of the goods is regarded as the buyer's agent, and the risk is also transferred to the buyer.

Article 149 of the Contract Law: "If the risk of damage or loss of the subject matter is borne by the buyer, it does not affect the buyer's right to demand the seller to bear the liability for breach of contract because the debt performance is not in conformity with the agreement". This clause embodies a spirit of fair checks and balances. The buyer can demand that the seller's equipment can't be put into production normally while bearing the transportation risk, which will bring actual losses to the buyer or pay liquidated damages (stone enterprises should propose or agree on liquidated damages in the breach clause).

If the quality of the goods does not meet the contract requirements after transportation to the destination, what are the risks of the goods? Article 148 of China's Contract Law stipulates: "If the quality of the subject matter does not meet the requirements and the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract. If the buyer refuses to accept the subject matter or terminates the contract, the risk of damage or loss of the subject matter shall be borne by the seller. " As a stone machinery enterprise, we should pay special attention to this clause, which is more conducive to urging the seller to perform the contract honestly and cautiously, deliver the goods that meet the quality requirements of the contract, and bind the seller with such risk liability and breach of contract liability. So pay attention to the terms of the contract. First of all, we should agree on quality standards. Shandong Huaxing Machinery Co., Ltd. adopted the industry standard "Technical Conditions of Sawing Machine for Stone Industry" (JC/T827-2000). Secondly, it is necessary to agree on the acceptance period and acceptance method, and ask the other party to sign the acceptance confirmation. The shelf life can be written in the confirmation letter or in the sales contract, so that the buyer can accept it gladly.

Three. conclusion

In short, in the sales contract, as long as both parties can clearly understand the terms of the sales contract and ensure the realization of the purpose of the contract in line with the principles of fairness, autonomy of will and good faith, even if some disputes arise, the two parties can settle them through consultation according to the contract to prevent blind spots when signing the contract and avoid wasting manpower and material resources in litigation in the future (on the one hand, China people have a tradition of being tired of litigation; On the other hand, China's litigation costs are high, procedures are cumbersome, and human feelings affect judicial justice.

refer to

general rules of civil law

Contract law of the people's Republic of China