For the seasonal goods, freight agents according to the time of shipment stipulated in the contract goods, although constitute a default, but not the contract cannot achieve purpose. According to concerning the application of the security of the People's Republic of China > the interpretations of the relevant provisions of the law, shall not be applicable in these circumstances, the client shall have no right to de-identify deposit deposit in double agents.
Case playback

Accuser: guangzhou DE mae industrial equipment Co., LTD

Defendant: international shipping agency Co., LTD. Is a macro

4 July 2005, the plaintiff entrusted with the 2 sets of power from Shanghai to Malaysia's Brazilian GuDan shipping exit booking etc. The defendant in the commissioned by fax the plaintiff, goods 506S wheel B voyage in July 2005, 19, from the port of shipment on August 3rd GuDan Brazil arrived in Malaysia. On July 13, 2005, the amount of the fee increase the defendant received the letter, fax fax name, the voyage, departure and arrival date, on July 4, with the letter, fax and content that does not affect shipment. The plaintiff agreed by sea freight per $2,500 per $14,000 to increase and measure-taking fee RMB per day after 27,500 each by name in the freight paid the deposit to 33,200 yuan RMB. After receiving the notice on the phone, the plaintiff on July 19th sunrise. In July 15, to provide the plaintiff accused of freight forwarders implied agreement, this agreement, according to KMTC (Korean sea) July 2005, the defendant will arrange shipment of goods shipped from July 26 sunrise. The salesman to the defendant, the plaintiff, is not mentioned agreement, name of vessel and agreement mentioned in the cargo flights from Hong Kong and enter the port, and the arrival time, annex content such as part of calligraphy modified and ask questions, and quick to respond to the request. Finally, both in this sign the agency agreement.

On July 21, 2005, the plaintiff accused termination due to fax from Hong Kong on July 19, shipment of goods, the agency contract, and the return of the deposit that the goods have been shipped by the buyers to arrange.

In the trial, the plaintiff 33,200 yuan RMB to pay the deposit.

Shipping schedule, the Korean 506S first round table forecast B voyage departure dates for July 15, 2005, The foreign trade contract signed goods delivery time for 20 July 2005, T/T settlement way. After the goods by the plaintiff authorize, and finally in July 2005, 26 from Shanghai shipment.

Shanghai maritime court thinks: the original, the defendant agreed by fax between the freight contract effectively. The plaintiff in July 2005, 13 pay 33200 yuan RMB for the deposit, the plaintiff to ensure the goods on time pay deposit to the shipment of the facts.

About departure dates change. On July 15th, due to the freight agent agreement signed contract fails, has not been finalized, thus to both parties not produced legal effectiveness. Both parties confirm the cargo departure dates for 2005 July 19, then party though consultation on July 26 vessels from the port of process, but finally agreed, the defendant has already identified with the July 19 sunrise goods contract obligation bear legal responsibility.

According to the supreme people's court concerning the application of the security of the People's Republic of China > the interpretations of the "regulation," because the party delay to perform or other breach of contract, which can be realized, can deposit penalties. In this case, the plaintiff's power for goods, do not belong to the seasonal goods, the defendant fails to timely shipment according to the contract of behavior does not belong to the fundamental breach, not constitute a breach of contract due to the plaintiff and the defendant cannot be realized by goods shipment cannot suffer losses shall be liable for compensation, but this shall not apply deposit penalties. The plaintiff accused the default on double request refund deposit, no support. But the plaintiff has paid the deposit, the defendant shall receive the compensation. According to the contract law 107 civil procedural law, the provisions of article 64 of the sentence, the effective judgment within ten days of date of 33200 yuan RMB for the loss, For the plaintiff's other claims shall not support.

The judge

Change departure dates of the agreement according to the contract law about the validity of the contract, the relevant provisions on July 15, the plaintiff offered to the drafting of freight forwarders protocol is a new offer. According to the contract law article 32: "the parties concluded by a memorandum of contract, the parties to the contract is signed or sealed." In this case, the parties failed in freight agency agreement signed, therefore, this agreement has not been finalized, the parties do not produce legal effect. The salesman to modify the behavior should be identified agreement according to the content of the solicitor calligraphy comprehensive analysis. Because the salesman to July 26, time of shipment can doubt, so many problems, and put forward the rapid response. Request The defendants include calligraphy demands to reply problems and put forward relevant provision of goods shipped, the calligraphy content is only proof on July 26, 2005, sunrise goods matters, cannot have been identified for consultation for the plaintiff an commitments. And because the evidence has not made answer, and obtain the approval, therefore, can maintain the parties have reached an agreement. Although the proposed changes departure dates, but only the new offer of party will not change, formed together.

The penalties for deposit according to the supreme people's court concerning the application of the security of the People's Republic of China > the interpretations of the provisions of article 12, "because the party delay to perform or other breach of contract, which can be realized, can deposit penalties. According to the regulation, in holds a party delay to perform the contract situation, the default behaviour only reached the contract cannot achieve purposes of degree, can apply the deposit penalties. The theory that the so-called "contract" means the contract that the pursuit of the goal and the fundamental interests. For example, sell goods is hoping to gain, conclude the contract price gold is the hope to the destination.

"The contract cannot achieve purpose" refers to the party in breach of contract, the other party according to deprive the fundamental interests of the contract, the contract to keep even in the later, the parties can be still cannot reach the goal. Delay in performance of the contract is not fulfilled, should consider the time for the importance of the contract. If the time factor for the realization of the contracting parties aim is crucial, it will cause the delay to perform the contract cannot achieve. Generally speaking, caused by delay to perform the contract cannot achieve involve some seasonally strong, such as Chinese goods to China before August 15, such as the moon will affect its commercial delay in performance, the other party of the sales contract cannot achieve.

But in this case, the date of departure for change, so the agreement to the freight contract in July 19 sunrise goods has constituted delay to perform the contract, but is two power's rather than goods, except for both seasonal agreed by the shipment time and the amount of freight transportation time, not to have further special requirements. And, by the plaintiff's final after authorize, in July 2005 from the port of shipment of 26, the fact is not only the goods mentioned in July 2005, 20 days before shipment. A contract is being kept still can realize the goods at the destination to fulfill its contract with the case of strangers. The defendant was layed on July 14th forward delay to perform its obligations under a contract, the meaning on July 21, to get the plaintiff, have more clearly veto between the two original shipment time. This section shows the fact that more than two hours delay to perform the contract case freight forwarders may still have both confirmed the signing of the contract, the purpose of the defendant, still can not deprive the breach of contract that the pursuit of the goal and the fundamental interests. Therefore, this does not have the conditions for the deposit for the plaintiff, penalties, the filing of the court shall be supported.