2018-10-24 06:56 | Zhejiang news client is carried | Swallow of reporter Zheng Lu
Spent 117000 yuan of nets to buy dog of a pet, buy the home passes a plane to carry pet dog Ning Bo from Shenyang with agreement selling the home. When consign, buy the home to discover pet dog already died, how should this thing do?
By May 2017, the brighting gentleman directive according to Zhao Mou, infiltrate 117000 yuan of payment for goods of boss Xun Mou of Zhao Mou pay treasure Zhang mark. After ten days, zhao Mou tells brighting sir, the dog of American local tyrant that he buys has transferred Shenyang by the United States, local tyrant dog psychosis is pretty good, but the airport of general Tuo hill that delivers the goods surely formerly did not work overtime boat of oxygen goods storehouse, will change the airliner of some order flies to airport of company of peaceful wave oak from Shenyang. Then brighting gentleman entrusts the flight number that the friend tells according to Zhao Mou to arrive at time to get pet dog to oak company airport. Who knows, after the friend of brighting gentleman reachs the airport, discover pet dog has died when next planes, did not get a body. That day, branch of airport goods station issued the proof that pet dog dies to brighting gentleman. Face such result, brighting gentleman asks Xun Mou returns total money, xun Mou does not agree. Both sides does not talk things over to fall, brighting gentleman is sued to the court, the request removes the contract of pet dog business with Xun Mou, ask its are returned still payment for goods pays interest 117000 yuan.
Xun Mou thinks, the content damage of mark destroys the risk that break is before consign by betray a person to assume, consign hind is assumed by vendee, carry by the 3rd person, betray person pay the first carrier is consign namely. When accordingly pet dog delivers to airline, its already fulfilled consign obligation. And its ever reminded brighting gentleman to buy insurance for pet dog, brighting gentleman was not bought, ought to assume carriage risk by brighting gentleman proper motion so.
After sea dawn court is tried lawfully, supported the litigant request of brighting gentleman. Xun Mou refuses to obey, mention appeal. A few days ago, 2 careful court rejects appeal via trying a court decision, maintain original judgement.
Judge commentate law:
Xun Mou's argue says is a basis " contract law of People's Republic of China " the 145th regulation: "Party is nodded without conventional consign ground or the agreement is ambiguous, the content of mark needs to carry, after the thing that sells person general mark delivers to the first carrier, the content damage of mark, destroy the risk that break is assumed by vendee. " but this law did not agree in party only consign ground is nodded or the ability when the agreement is ambiguous is applicable, that is to say, agreed consign ground is nodded, need delivers to vendee in the content of mark of consign ground name a person for a particular job, just can admit to betrayed a person to fulfil consign obligation surely, the risk transfers vendee. The delivery address that the accused in this case tells prosecutor is airport of company of peaceful wave oak, should regard both sides as to agree consign ground is nodded, the accused should deliver to pet dog accuser in oak company airport according to it, the risk just is transferred from this. To say the least, dog of the pet when accuser of consign of even if the accused did not die, die after a hour is controlled however, because the accused answers goods to assume a flaw,assure responsibility, accuser still can ask the accused undertakes responsibility of breach of contract.
Carry safe problem about the accused is pet dog contradictorily to buy, the damage of the content that because be before goods delivery,bears mark by the accused, destroy break a risk, and the accused sells the home as major, know perfectly well pet dog to carry time long, carriage environment is complex wait for an element, trade to avoid risk, answer to buy relevant insurance by the accused proper motion, accuser did not buy safe obligation. On put together, after accuser pays payment for goods to the accused according to it, the accused behoove accords with conventional goods to accuser consign according to the agreement, dog of pet of case showing experience is dead already, the accused cannot be pressed make an appointment with Xiang Yuan to accuse consign goods, the agree carries responsibility of breach of contract, the business contract that reason accuser can ask to remove to be signed with the accused place, ask the accused is returned return payment for goods and pay corresponding exceed the time limit interest.
Nowadays, the network shops to already made general consumptive way, almost all commodity can buy business through the net, the net buys pet not scarce also. Pet and general goods are different, pet is the goods that has life, the wind strategically located and difficult of access in carriage process is broad at general goods. Shopping contract of together with network is not perfected very commonly, if this case Central Plains, the accused just passes small letter to chat,decide business contract is relevant item, did not undertake making clear conventional to carrying risk, authority duty to assume, once appear dispute, appear piece stick to one's argument, the phenomenon of mutual shuffle. To this, the net buys pet to should notice with respect to the contract each item undertakes making clear conventional, carry place of means, consign, risk to assume especially, responsibility of breach of contract. The businessman also should note avoid risk, all make clear clew obligation to granting to assume the item of responsibility. In addition, the net that signs written contract to inconvenience is bought, want keep both sides to undertake negotiation at least, the proof that reachs an agreement.
