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Signed A Shoe Purchase And Sale Contract &Nbsp; Performance Bond Is Not Equal To Penalty.

2010/11/16 15:38:00 65

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In October 2009, a shoe company and a trading company signed a contract for the purchase and sale of shoes.

Trade

Company to

footwear industry

The company buys 150 thousand pairs of shoes, and the total cost is more than 1200 yuan.

Before October 26, 2009, the trading company designated the account of the shoe company to import RMB 2 million yuan as the performance bond for the contract, and the margin would be offset against the last payment. If the trading company failed to pay the contract according to the contract, the shoe company had the right to confiscate the performance bond. During the payment period, any breach of the term payment of the trading company would be regarded as a breach of the contract.

After signing the contract, the trading company made several payments to the shoe company for 5 million 480 thousand yuan (including the first 2 million yuan as the performance bond stipulated by the two parties), and the shoe company released the contracted shoes into the trading company in batches.

Later, the trading company did not pay for the goods agreed upon by the two parties, nor did it withdraw the goods.

The shoe company said that because the trading company no longer paid and extracted goods, it reduced the remaining cargo and paid the goods overdue deposit fees, interest payments and interest losses, so it requested the trading company to pay 2 million yuan for the breach of contract and compensate for the loss of over 48 yuan.

The trading company argued that 2 million yuan as a liquidated damages for the contract had exceeded the actual loss and required the shoe company to return the rest.

In this case, the two sides agreed that 2 million yuan should be used as the performance bond of the contract and the last amount of money should be offset against the trade. The agreement is based on trade.

company

When performing the contract, the performance bond can be used to offset the last payment. At the same time, if the trading company overpays, the shoe company will dispose of the goods on its own and have the right to confiscate the performance bond.

Although "confiscation" has the word or color of administrative coercion, in the civil and commercial contract between the equal subjects of this case, "confiscation" should be the intention of the party who receives the performance bond not to return or pay the performance bond.

According to the arbitration tribunal, the performance bond in this case is not only compensatory, but also punitive.

The deposit should be owned by the shoe company and has the right not to return it.

Case comment

Performance bond and liquidated damages are two different concepts.

Breach of contract is a way to bear liability when a party breaches a contract. The parties to a contract may set up the contract in advance and breach the fact that they will be liable to pay the penalty for breach of contract, which is compensatory and punitive in nature.

The performance bond is the performance of a guarantee contract by one of the parties to a contract, while paying the other party certain money as a guarantee for the creditor's rights is a form of guarantee for the performance of the contract.

Where there are no prohibitions in the laws and administrative regulations, the parties to a contract may set a performance bond to guarantee the performance of the guarantee contract.