Party C and Party D guarantee the loan contract, and the guarantee clauses stipulate that if Party A fails to repay the loan on time, Party C and Party D shall bear the guarantee responsibility. E. The loan contract between Party A and Party B is mortgaged. Collateral is a batch of cloth (worth 3 million yuan), and the scope of guarantee is not agreed.
Please answer the following questions:
1. Both Party A and Party B are productive enterprises. What is the validity of the loan contract? Why?
2. Both Party A and Party B are production enterprises, and Party A is unable to repay the loan at maturity. Should Party C bear the responsibility? Why?
3. Assuming that the contract between Party A and Party B is valid, Party A and Party B decide to postpone repayment for 65,438+0 years, and inform Party C, Party D and Party E of the contents of the deferred repayment agreement, but Party C, Party D and Party E did not reply. Are Party C, Party D and Party E liable for the guarantee? Why?
4. Party A and Party B decided to give up E's mortgage guarantee and sign an agreement, but they did not get the consent of Party C and Party D. Do Party C and Party D bear the guarantee responsibility? Why?
5. If Party A can't repay the loan due, Party B applies to the court to auction the cloth. The auction price is 5.5 million yuan, and 5.2 million yuan is obtained after deducting the expenses, which is enough to repay the principal, interest and expenses of Party B.. B can I pay off all my debts with the proceeds from the auction? Why?
6. The cloth of Party E is lost due to force majeure; C was declared missing and his property has been kept by Geng. Now that Party A can't repay the due debts, and Party D has repaid all the creditor's rights of Party B, to whom can Party D exercise the right of recourse? Why?
Reference answer:
1, invalid. The loan contract belongs to illegal fund lending, and the contract is invalid.
2, do not assume the responsibility of guarantee, but should bear the responsibility of fault compensation. The liability for this fault is one third of the unpaid amount. The main contract is invalid, and the guarantee contract is invalid. However, if the debtor, guarantor and creditor are at fault, they shall be liable according to their respective faults.
3. Guarantor Party C and Party D shall not undertake the guarantee responsibility, but Mortgagor E shall still undertake the guarantee responsibility. If the guarantee period is not stipulated in the guarantee contract, it shall be six months from the date when the performance period of the main debt expires. Now Party A and Party B delay the repayment period by one year, and without the written consent of the guarantor, the guarantor only assumes the guarantee responsibility within the original guarantee period. Because the warranty period exceeds six months, the guarantor does not assume the warranty responsibility. The extinction period of mortgage right is two years from the expiration of the limitation period of main debt litigation. Although Party A and Party B delayed the repayment period by one year, it still did not exceed the extinction period of the mortgage right, so Party E should bear the mortgage guarantee responsibility.
4. Guarantors Party C and Party D still bear the guarantee responsibility of 2 million yuan. Where the creditor waives the property guarantee, the guarantor shall be exempted from the guarantee liability within the scope of waiving the property guarantee.
5. yes. If the same creditor's right has both a guarantee provided by a third party and a mortgage provided by a third party, and the scope of the guarantee is not agreed, the creditor may request full payment from any guarantor.
6. You can recover from the debtor A and the property trustee G. After the guarantor assumes the guarantee responsibility, he obtains the right of recourse against the debtor. After the guarantor assumes the guarantee responsibility, he has the right to recover his share from other guarantors. As the guarantor of mortgage, if the collateral is lost, the mortgage right will also disappear. Therefore, he lost the identity of the mortgage guarantor, and Ding could not recover from E. C disappeared and his property was kept by Geng. A property custodian may be a party to a lawsuit. Therefore, you can recover from Geng.
Case 2. Company A signed a written purchase and sale contract with Company B, and Company A bought 200 refrigerators from Company B at the price of 1.500 yuan each.
Both parties agreed that Company B would deliver the goods and Company A would pay within 10 days after receiving the goods. The contract penalty is 65,438+00% of the contract price, and it is agreed that disputes arising from the contract shall be under the jurisdiction of the court in place C where the contract is signed. However, after the contract was signed, Company B had production difficulties due to insufficient funds and failed to deliver the goods as agreed in the contract. Company A asked Company B to pay liquidated damages, but Company B refused. In the event of a dispute between the two parties, Company A filed a lawsuit.
Please answer the following questions:
1. Party A and Party B agree that the court where this contract is signed is the competent court for contract disputes. Is this jurisdiction agreement valid?
2. If both parties agree that place C is the place where the contract is performed and the court where the contract is performed is the court with jurisdiction over contract disputes, do the courts in place C have jurisdiction over this case at this time? Why?
3. In this case, if there is no jurisdiction agreement between the two parties, which court can Company A bring a lawsuit to?
4. If both parties only agree in the contract that the place of performance of the contract is C, and there is no jurisdiction agreement, which court should Company A bring a lawsuit to at this time?
5. If both parties agree in the contract that in order to protect the interests of both parties equally, the parties can bring a lawsuit to the court where the plaintiff or the defendant has his domicile, which court can Company A bring a lawsuit to at this time?
6. If Company B has delivered the goods and the actual place of performance of the contract is D, but Company A fails to pay the price on time, and there is a dispute between the two parties, Company B brings a lawsuit. At this point, Company B filed a lawsuit in Court D, and Company A responded without raising any objection. Does the court in D enjoy jurisdiction because of this?
7. If the parties do not stipulate the court of jurisdiction for contract disputes in the contract, but agree in writing that the court where the contract is signed is the court of jurisdiction for contract disputes after the contract disputes occur, is the jurisdiction agreement valid at this time?
Reference answer:
1. This jurisdiction agreement is valid, because the written contract stipulates that the court where the contract is signed is the jurisdiction court for contract disputes, which does not violate the special provisions such as exclusive jurisdiction and hierarchical jurisdiction, and has the conditions for the jurisdiction agreement to take effect.
2. At this time, the court in place C has jurisdiction, because the parties agree that the court in place C is the jurisdiction court for contract disputes, which does not violate the prohibition of the law and meets the effective conditions of the jurisdiction agreement. Therefore, the court in place C has jurisdiction.
3. If both parties fail to reach an agreement on the jurisdiction agreement. Then, according to the provisions of the Civil Procedure Law, contract disputes shall be under the jurisdiction of the people's court in the place where the contract is performed or where the defendant is domiciled. However, according to the Supreme People's Court's Opinions on the Civil Procedure Law, if a lawsuit brought due to a contract dispute is not actually performed and the domicile of both parties is not the place of performance agreed in the contract, it shall be under the jurisdiction of the people's court of the defendant's domicile. Therefore, in the absence of a jurisdiction agreement between the two parties, because the contract in this case has not been actually performed, if the two parties have not agreed on the place of performance in the contract or the place of performance agreed in the contract is different from the plaintiff's domicile and the defendant's domicile, the plaintiff can only bring a lawsuit to the people's court of the defendant's domicile, that is, the people's court of place B.
4. At this time, Company A should bring a lawsuit to the D People's Court where the defendant is located. The reason is the same as the answer to the above question.
5. At this time, the jurisdiction agreement agreed by both parties is invalid, and Company A can only bring a lawsuit to the court of the defendant's domicile or the place where the contract is performed according to the legal jurisdiction. At the same time, considering that the contract in this case has not been actually performed, it should be handled in accordance with the above third question. Because the Supreme People's Court's "Opinions on Civil Procedure Law" stipulates that if the agreement chosen by both parties to the contract is unclear or the defendant's domicile, the place where the contract is performed, the place where the contract is signed, the plaintiff's domicile or the place where the subject matter is located are under the jurisdiction of two or more people's courts, the agreement on choosing jurisdiction is invalid and shall be handled according to the legal jurisdiction stipulated in the civil procedure law.
6. At this time, the people's court in D has obtained jurisdiction. Although the parties have agreed on the court of jurisdiction for contract disputes in the contract, but the plaintiff has not brought a lawsuit to the agreed court of jurisdiction, and the defendant has not raised any objection to jurisdiction during the defense period, it shall be deemed that the parties have abandoned the jurisdiction agreement.
7. At this time, the jurisdiction agreement is still valid, because the jurisdiction agreement can be part of the sales contract or independent of the sales contract. As long as both parties agree in writing, meet the general requirements for the entry into force of the contract and do not violate the prohibition of the law on the jurisdiction agreement, the jurisdiction agreement has legal effect.