A company appoints Zhang, a salesman, to buy garlic from B company, and Zhang goes to B company to buy garlic with a stamped blank contract and power of attorney.
A company and B company signed a garlic sales contract on March, 2065438 10, stipulating that B company would consign garlic on its behalf, and the delivery of the goods to C company will be deemed as complete. The total price of garlic is 6,543,800 yuan. After the goods arrive at Company C, Company A pays 500,000 yuan for the goods, and pays off the balance of 500,000 yuan after the goods arrive at Company A. Both parties also agree that the 500,000 yuan paid by Company A to Company B includes a deposit of 200,000 yuan. If either party breaches the contract, it shall pay the observant party a penalty of 300,000 yuan.
Zhang found that company B still had some mung beans for sale, thinking that it was the peak season for mung bean sales, so he decided to sign another mung bean sales contract with company B on March 1 day, 2065438, with a total price of 1 10,000 yuan, which was still sold by company B. After the goods were delivered to company C, the delivery was deemed to be completed, and the other terms were the same as the garlic sales contract.
On April 1 2065438, Company B delivered garlic and mung beans to Company C as agreed, and Company A remitted 500,000 yuan of garlic and 500,000 yuan of mung beans to Company B. According to the consignment contract, Company C should deliver the garlic and mung beans to Company A within ten days.
20 10 On April 5th, Company A signed a contract with Company D to resell garlic at the price of10.2 million yuan. On April 7, due to the soaring price of garlic, Company A sold garlic to Company B at a price of 6,543.8+0.5 million yuan, and instructed Company C to deliver garlic to Company B. On April 8, Company C was in the process of transporting garlic, and all the garlic was damaged due to flash floods. Company E refused to pay because it did not receive the goods, and Company A refused to pay Company B 500,000 yuan for the remaining garlic because it did not receive the payment from Company E. ..
After the mung bean market skyrocketed, Company C resold the mung bean in its own name at a price of 6.5438+0.3 million yuan, and delivered it immediately, but so far it has not received the payment. After learning about it, Company A refused to ratify the behavior of Company C and asked his company to return mung beans.
question
1. Who owns garlic after it is shipped to Company C? Why?
2. What is the effect of the garlic reselling contract signed by Company A and Company D and E? Why?
3. Who bears the risk of garlic being damaged on the way to Company E? Why?
4. Can Company A refuse to pay the final payment to Company B on the grounds that it has not received the payment for garlic from Company E? Why?
5. Company B has not received the final payment of garlic from Company A, can it require Company A to bear the responsibility of both down payment and liquidated damages? Why?
6. What is the effect of the mung bean sales contract signed by Company A and Company B? Why?
7. What is the legal effect of Company C reselling mung beans to its own company? Why?
8. Does Company A have the right to ask its own company to return mung beans? Why?
Reference answer:
1. A company. Because garlic is a movable property, unless there is a special agreement in the contract, delivery is the sign of its ownership transfer. Company A and Company B have agreed that the delivery of garlic to Company C is deemed to be completed, so Company A is the owner of garlic at this time.
2. effective. Before the delivery of garlic, Company A still has the right of ownership and disposal. The validity of multiple sales contracts concluded by the seller on the same subject matter is not mutually exclusive.
3. Company E undertakes. In the sale of goods in transit, the risk of accidental damage or loss of the subject matter shall be borne by the buyer from the date of signing the sales contract. Therefore, the risk of garlic damage and loss should be borne by the buyer e company.
4. No, because of the relativity of the contract, Company A and Company B are the parties to the garlic purchase and sale contract, and Company A cannot refuse to pay the final payment because it is a third party.
5. No, because both the garlic purchase and sale contracts of Company A and Company B stipulate the deposit and liquidated damages, so Company B can only choose to apply the liquidated damages or the deposit.
6. effective. Because Company A paid 500,000 yuan to Company B, it showed that it ratified Zhang's unauthorized agency behavior.
7. invalid. The resale behavior of company C belongs to the unauthorized disposition behavior (the effect is to be determined), because company A refuses to ratify the behavior of company C. ..
8. No rights. Because your company constitutes a goodwill acquisition.
Case: Wang signed a contract with Company A in February 2004, stipulating that Wang would buy 1 bus from Company A for 400,000 yuan, and pay 300,000 yuan within 1 month from the date of signing the contract, and the balance would be paid before the end of February 2006, and it was agreed that the ownership of the bus would remain with Company A until Wang paid the full amount. Without his wife's consent, Wang borrowed 300,000 yuan from Bank B with his own house (purchased after marriage, and the registered owner of the real estate license was Wang) and registered the mortgage. Wang borrowed 300,000 yuan from Company A and bought back the bus. Wang put Zhang in charge of car operation, and agreed that Zhang would make a commission of 5% of the net income at the end of the year, and all the risks arising from the operation would be borne by Wang.
In June 2005, the car collided with a truck during operation. Li, a passenger on the bus, was seriously injured and died after treatment. The bus was badly damaged and sent to Dingchang for repair, which cost 30 thousand. It was determined by the relevant departments that the truck driver Tang was driving illegally and should bear all the responsibilities for the traffic accident. After Wang refused to pay the repair fee on the grounds that the truck was responsible for the accident, Ding Factory refused to deliver the car. From June, 5438 to February, 2005, due to Wang's failure to repay the loan, Bank B applied to the court to take property preservation measures for the bus and requested to exercise the mortgage right on Wang's house.
Question:
1. Is there a partnership between Wang and Zhang? Why?
2. Can Bank B exercise the mortgage on Wang's house? Why?
3. Is it legal for Ding Factory to refuse to deliver the car? Why?
4. Should Wang be liable for compensation to Li's successor? Why?
5. Is it legal for the court to take property preservation measures for buses? Why?
6. Should Tang bear criminal responsibility? Why?
I. 1.
The answer is that there is no partnership, because Wang hired Zhang as an employment relationship, and Zhang neither contributed nor took risks, which is not in line with the characteristics of partnership.
The difference between cooperative relationship and employment relationship in testing center
According to the provisions of Article 30 of the General Principles of Civil Law, individual partnership means that two or more citizens provide funds, materials and technology respectively according to the agreement, operate in partnership and work together. In this case, Wang asked Zhang to be in charge of automobile operation, and agreed that Zhang would make a commission of 5% of the net income at the end of the year, and all the risks arising from the operation would be borne by Wang. Obviously, Zhang did not provide funds, donations in kind, and did not take risks. Therefore, there is no partnership between Wang and Zhang.
2.
The answer is no, because the house belongs to Wang and his wife, and the mortgage is invalid without the consent of the owner's wife.
Establishment of mortgage right of testing center
Detailed mortgage means that the debtor or the third party does not transfer the possession of the subject matter and takes the property as the guarantee of the creditor's right. When the debtor fails to perform the debt, the creditor has the right to discount it according to law or give priority to compensation with the price of auction or sale of the property. In this case, "Wang borrowed 300,000 yuan from Bank B with his own house (purchased after marriage and registered by Wang) without his wife's consent, and registered the mortgage." According to the second paragraph of article 17 of the Marriage Law, husband and wife have equal rights to dispose of all property. According to the second paragraph of Article 54 of the Interpretation of the Guarantee Law, a * * * person mortgages his * * * property, and the mortgage is invalid without the consent of other * * * people. So in this case, mortgage behavior. Invalid.
3.
The answer is legal, because Ding Factory, as a contractor, can exercise lien or right of defense at the same time.
Simultaneous exercise of lien and right of defense in examination center
Detailed explanation of lien means that according to the law, the creditor occupies the debtor's movable property according to the contract, and the debtor fails to perform the debt within the time limit stipulated in the contract, and the creditor has the right to retain the property according to law, discount it or pay the property with the price of auction or sale. According to Article 84 of the Guarantee Law, the creditor has the lien on the creditor's rights arising from the debtor's failure to perform the custody contract, transportation contract or processing contract. In this case, Wang asked Ding Factory to repair the car, and the two formed a contractual legal relationship. The basis is that Article 25 1 of China's Contract Law clearly stipulates that a contract is a contract in which the contractor completes the work according to the requirements of the ordering party, delivers the work results, and the ordering party pays the remuneration. Contracting includes processing, customization, repair, reproduction, testing and inspection. According to the above guarantee law, it is legal for Ding Factory to refuse to deliver the car because it enjoys the lien. Therefore, "Wang refused to pay the repair fee on the grounds that the responsibility for the accident was on the truck side", and Ding Factory refused to deliver the car on the grounds of its lien.
Article 66 of the Contract Law stipulates that if the parties owe debts to each other and there is no order of performance, they shall perform at the same time. One party has the right to reject the performance requirements of the other party before performance. When the performance of the debt does not conform to the contract, one party has the right to refuse the corresponding performance requirements of the other party. In this case, the contract between Wang and Ding Factory is a two-way contract, and the delivery of the repaired vehicle and the payment of the repair fee constitute the disorderly treatment and performance of obligations. Ding Factory has the right to exercise the right of defense before Wang pays the repair fee and refuses to deliver the car.
4.
The answer should be that since there is a transportation contract relationship between Wang and Li, Wang should bear the liability for breach of contract or tort and implement the principle of no-fault liability for Li's compensation.
Responsibility of carrier in testing center
Detailed transportation contract refers to a contract in which the carrier transports passengers or goods from the place of departure to the agreed place, and the passenger, shipper or consignee pays the fare or transportation expenses. Article 302 of the Contract Law stipulates that the carrier shall be liable for damages for the casualties of passengers during transportation, unless the casualties are caused by the passengers' own health or the carrier proves that the casualties are caused by the passengers' intentional or gross negligence. In this case. Li and Wang have formed a legal relationship of transportation contract. As a carrier, Wang should be liable for the death of passenger Li during transportation. Obviously, Li's death was not caused by his own reasons or his intentional or gross negligence. In view of Li's death, Wang should be liable for compensation to Li's successor.
According to Article 122 of the Contract Law, if one party infringes on the personal and property rights of the party at that time, the injured party has the right to choose to require it to bear the liability for breach of contract according to this law or to require it to bear the liability for tort according to other laws. Therefore, the injured party can also file an infringement lawsuit against Wang.
5.
The answer is legal, because although the ownership of the bus belongs to Company A, Wang paid most of the price and enjoyed certain rights and interests in the bus, which belongs to the property related to this case.
Property protection of test site
Article 93 of the Civil Procedure Law clearly stipulates that if an interested party fails to apply for property preservation immediately due to an emergency, which will cause irreparable damage to his legitimate rights and interests, he may apply to the people's court for property preservation measures before bringing a lawsuit. The applicant shall provide a guarantee. If no guarantee is provided, the application shall be rejected. Article 94 stipulates that property preservation is limited to the scope of the request or the property related to the case. In this case, Wang and Company A agreed: "The ownership of the car will still be owned by Company A before Wang pays the full amount": but when Wang pays most of the price, the car enjoys certain rights and interests, and the car belongs to the property related to this case. According to Article 94 of the Civil Procedure Law, the property preservation measures taken by the court are legal.
6.
Answer: Tang should bear criminal responsibility, because Tang illegally drove, causing serious consequences of L people's death, which constitutes a traffic accident crime.
Crime of causing traffic accidents in examination room
Detailed Interpretation of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases of Traffic Accidents Paragraph 1 of Article 2 stipulates: "Traffic accidents, in any of the following circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention:
(a) one person died or more than three people were seriously injured, and they were fully or mainly responsible for the accident;
(2) An accident in which three or more people died and were equally responsible;
(3) Causing direct losses to public property or other people's property, and taking full or main responsibility for the accident. Unable to compensate for the amount of more than 300 thousand yuan. "
In this case, Tang, a truck driver, was responsible for a traffic accident in which one person died due to illegal driving. Therefore ... Tang's behavior constitutes a crime of causing traffic accidents and should bear criminal responsibility.
Case: Wang He and Zhang have two sons, the eldest son Wang Jia and the second son Wang Yi. Wang Jia married Li on 1995 and had a son. Wang Jiayu died in a car accident in May 1999. Wang died in June 5438 +2000 10, and left 6 houses with the same area as Zhang after marriage. After Wang's death, Zhang lived with his daughter-in-law Li, and these six houses were temporarily used by his second son, Wang Yi.
In June 2000, 165438+ 10, Wang Yi signed a house purchase and sale agreement with Cao, and sold the six houses to Cao at the price of 120000 yuan. Zhang and Li objected when they knew about it. Later, due to Wang Yi's promise to distribute the house payment among all heirs reasonably, Zhang and Li agreed. Wang Yishui and Cao went through the transfer registration formalities, and Cao immediately paid 50,000 yuan for the house purchase, and promised to pay the balance after 6 months. After Cao obtained the house, he signed a house transfer agreement with Zhu, agreeing to sell the house to Zhu at a price of 6.5438+0.5 million yuan. Before the two parties formally handled the transfer registration and payment, Cao signed a house transfer agreement with Qian, sold the house to Qian at a price of 6.5438+0.8 million yuan, and handled the transfer procedures.
In May of 200 1 year, Cao should pay the balance of 70,000 yuan to Wang Yi, which Cao was unable to pay due to operating losses. However, Cao has 50,000 yuan to claim from Zhao. As Cao and Zhao are related, Cao said in writing that he would no longer ask Zhao to pay for the goods. It was also found that Cao was injured in a car accident when he went out in April 20001year. The driver Sun was a good friend of Cao, and Cao never asked Sun to compensate for the losses caused by the car accident.
Question:
1. Who should allocate the six houses left by Wang after his death? How much should everyone get? Why?
2. Is the agreement on selling houses signed by Wang Yi and Cao valid? Why?
3. How effective is the house transfer agreement signed by Cao, Zhu and Qian?
4. If Zhu asks to fulfill the contract signed with Cao and obtain the house, can he support it? Why?
5. If Wang Yi requests the people's court to revoke Cao's waiver of the right to demand payment from Zhao, can his lawsuit be supported? Why?
6. If Wang Yi asks Sun to compensate for the damage caused by the car accident in his own name, can his claim be supported? Why?
Answer:
1. Zhang, Wang Yi,. Among them, Zhang got 4 rooms, Wang Yi and each got 1 room. Because these six rooms belong to the same property of Wang and Zhang, after Wang's death, Zhang should get three of them, and the other three should be equally distributed among the heirs in the first order. The successors in the first order are Zhang and Wang Yi. Because Wang Jia died before the king, his son enjoyed subrogation. Therefore, in the remaining three rooms, Zhang, Wang Yi and should each get 1.
2. effective. Although these six rooms are owned by * *, the transfer agreement has been agreed by other * * owners Zhang and guardian Li.
3. The agreement signed by Cao and Zhu is valid. The agreement signed by Cao and Qian is also valid.
4. No, because Cao has gone through the house transfer registration formalities with Qian, and Qian has obtained the ownership of the house and cannot perform it. Only ask Cao to bear the responsibility for breach of contract.
5. yes. According to the provisions of the Contract Law, if the debtor waives the due creditor's rights, thus causing damage to the creditor, the creditor may request the people's court to cancel the debtor's waiver.
6. No, because the compensation belongs exclusively to Cao's own creditor's rights, according to the provisions of the Contract Law, Wang Yi cannot exercise the right of subrogation.
Analysis:
1. Article 3 of the Inheritance Law stipulates that an inheritance is the personal legal property left by a citizen when he dies. Therefore, as the husband and wife of Wang and Zhang, there are 6 sets of real estate, 3 sets for Zhang, and 3 sets for inheritance. Heirs in the first order include Zhang and Wang Yi, who enjoy the legal right of succession as subrogation inheritance people. Wang Jia's wife Li is not the first heir.
2. People's Opinions Article 89 Some people of * * * and * * enjoy the same rights and assume the same obligations to the property of * * *. During the relationship between * * * and * *, some * * people dispose of * * * property without authorization, which is generally considered invalid. However, if a third party obtains the property in good faith for compensation, it shall safeguard the legitimate rights and interests of the third party; If the property of * * * is disposed of without authorization, it shall compensate the losses of other owners of * * *.
3. The house transfer agreement signed by Cao, Zhu and Qian belongs to the situation of one thing and two sales. In the case of selling two things, both contracts are valid. If the debtor fulfills its contractual obligations to one of the creditors, the creditor will acquire the ownership of the house, and the other creditor can only ask the debtor to bear the liability for breach of contract.
4. The change registration of house ownership shall be carried out in accordance with the requirements of the transfer registration of house ownership. Although there are two valid contractual relationships in this case, if the house change in Cao Jiang is registered as money, the money will acquire the ownership of the house. Zhu can't ask Qian to return the house, nor can he ask Cao to transfer the ownership of the house. He can only ask Cao to bear the liability for breach of contract.
5. Article 74 of the Contract Law If the debtor abandons the due creditor's rights or transfers the property for free, thus causing damage to the creditor, the creditor may request the people's court to cancel the debtor's behavior. If the debtor transfers the property at an obviously unreasonable low price, causing damage to the creditor, and the transferee knows the situation, the creditor may also request the people's court to cancel the debtor's behavior.
The scope of revocation right is limited to creditor's rights. The necessary expenses for the creditor to exercise its right of cancellation shall be borne by the debtor.
6. Contract Law Article 73 If the debtor is slow to exercise the creditor's right due, thus causing damage to the creditor, the creditor may request the people's court to exercise the debtor's creditor's right in its own name, except that the creditor's right belongs exclusively to the debtor.
The scope of subrogation is limited to creditor's rights. The necessary expenses for the creditor to exercise subrogation shall be borne by the debtor.
The requirements of subrogation include: (1) the creditor's right to the debtor is legal; (2) The debtor's delay in exercising the due creditor's rights has caused damage to the creditor; (3) The creditor's rights of the debtor have expired; (4) The debtor's creditor's rights are not exclusive to the debtor.
Second, (this question 12 points)
Case: Daxing Company signed an entrustment contract with Yu Quan Company, and Yu Quan Company was entrusted by Daxing Company to purchase 500 color TV sets, and paid 500,000 yuan in advance for color TV sets. Yu Quan Company found that Swan Company in the west of a city has a batch of famous color TVs with high quality and low price, so it signed a color TV purchase contract with Swan Company in its own name. The two sides agreed that Yu Quan Company would buy 500 color TV sets from Swan Company, with a total price of 6,543.8+0.3 million yuan, and Yu Quan Company would pay a down payment of 300,000 yuan. Swan Company delivered all the color TV sets to Area S of City B, and Yu Quan Company paid all the payment within one week after the goods were accepted. When Swan Company delivered the goods, the staff sent 505 sets by mistake. During transportation, 20 color TV sets were damaged to varying degrees because they were rear-ended by a car. Yu Quan Company received 505 color TV sets at the place agreed in the contract in Area S, and immediately raised the quality objection to the damaged 20 color TV sets, and delivered all the color TV sets to Daxing Company. Because the color TV is unsalable, Daxing Company has refused to pay for the goods, so Yu Quan Company has been unable to pay for the goods to Swan Company. Two weeks after delivery, Yu Quan Company disclosed to Swan Company that it was entrusted by Daxing Company to buy color TV sets on its behalf.
Question:
1. Swan Company did not know in advance that Yu Quan Company was entrusted by Daxing Company to buy color TV sets. After Swan Company knows this situation, can it ask Daxing Company to pay for the goods? Why?
2. What is the effect of the deposit clause in the contract between Yu Quan Company and Swan Company? Why?
3. What should we do with the five color TVs that Daxing Company overcharged? Why?
4. Who should bear the loss of 20 damaged color TV sets when the rear-end vehicle escapes? Why?
5. If Swan Company takes Yu Quan Company as the defendant to file a lawsuit, in the course of the lawsuit, Swan Company thinks that it is more favorable to ask Daxing Company to pay for the goods. Can it advocate Daxing Company to perform the contractual obligations on its behalf? Why?
Answer:
1. When an agent enters into a contract with a third party in its own name, it fails to perform its obligations to the third party due to the principal's reasons. After the agent discloses the principal to the third party, the third party may choose the agent or the principal as the counterpart to claim their rights.
2. Part of it is invalid. Because the deposit amount shall not exceed 20% of the subject matter of the contract, the excess part shall be invalid.
3. It should be returned to Swan Company. It belongs to unjust enrichment.
4. borne by swan company. The losses before the delivery of the subject matter shall be borne by the seller.
5. no. After selecting a counterpart for a third person, the selected counterpart cannot be changed.
Analysis:
1. Paragraph 2 of Article 403 of the Contract Law stipulates that if an agent fails to perform his obligations to a third party due to the principal, the agent shall disclose the principal to the third party, so that the third party can choose the agent or the principal as the counterpart to claim rights, but the third party shall not change the selected counterpart.
2. Article 91 of the Guarantee Law, the amount of deposit shall be agreed by the parties, but it shall not exceed 20% of the subject matter of the main contract.
3. Article 92 of the General Principles of the Civil Law, if improper benefits are obtained without legal basis and losses are caused to others, the improper benefits obtained shall be returned to the person who has suffered losses.
4. 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, except as otherwise provided by law or agreed by the parties.
5. Paragraph 2 of Article 403 of the Contract Law stipulates that if the agent fails to perform his obligations to the third party due to the principal, the agent shall disclose the principal to the third party, so that the third party can choose the agent or the principal as the counterpart who claims the rights, but the third party shall not change the selected counterpart.
Iii. (This question 16)
Case: Company A signed an investment contract with Longmou, stipulating that each party would contribute 2 million yuan to establish Company B; Company A contributes capital with its land use right, while Longmou contributes capital with cash and patented technology (both contributions have been verified); Long is the chairman and general manager; The losses of the company shall be shared in proportion to the capital contribution. The articles of association drafted by both parties did not stipulate how to bear the company's losses, and other contents were consistent with the investment contract. After the industrial and commercial registration, Company B produced and operated on the land contributed by Company A, but Company A did not transfer the land use right to Company B. ..
In March, 2000, Company B borrowed 2 million yuan from Bank C, and Company A used the above land use right as mortgage guarantee in its own name. In April of the same year, Company A proposed to withdraw from Company B, and Long agreed in writing. In August, 2003, the court ruled that Company B should repay the principal and interest of the above sum of 2.4 million yuan to Bank C, and Company A should be jointly and severally liable for repayment. At this point, Company B is insolvent, with a net loss of 6.5438+0.8 million yuan. It is also found out that after the establishment of the company, Longmou used the registered capital of 6,543,800 yuan+0.2 million yuan to pay off debts for friends.
Based on the above situation, Bank C requires Company A and Longmou to take responsibility for the debts of Company B in the implementation process. Company A thinks that when it is used as a guarantee, the land belongs to Company B, and its mortgage behavior should be invalid, and Company A has withdrawn from Company B after payment 1 month, so it should not bear the loan principal and interest of 2.4 million yuan; In addition, the registered capital of Company B of RMB 6,543,800+200,000 is occupied by Dragon, and Dragon should withdraw half of RMB 6,543,800+200,000 to Company A. Dragon believes that when Company B was established, the capital contribution of Company A was not in place, so the establishment of Company B is invalid, and the losses of Company B should be borne by Company A according to the capital contribution contract.
Question:
Is the mortgage behavior of 1.A company valid? Why?
2. Is the establishment of Company B effective? Why?
3. Can Company A's claim that it has withdrawn from Company B be established? Why?
4. Can Company A ask Long to refund 600,000 yuan out of the 6,543,800+0.2 million yuan it occupied? Why?
5. Should Company A bear half of the losses of Company B? Why?
6. How should Company B, Company A and Dragon Company be responsible for the debts of Bank C?
Answer:
1. valid. When Company A is used as collateral, the collateral has not been transferred, and Company A still enjoys control over the land.
2. effective. Registration is the prerequisite for the establishment of a company, and the failure of shareholders to contribute capital does not affect the effectiveness of the establishment of the company.
3. no. Shareholders may not withdraw their capital contribution after registration in the company.
4. No, Longmou occupies the company's funds, and Longmou has only the obligation to return to Company B, but not to return to Company A. ..
5. This should not be done. After the establishment of the company, the shareholders' investment agreement cannot conflict with the company's articles of association, so Company A has the obligation to pay the investment to Company B according to the company's articles of association, but has no obligation to directly share the company's losses.
6. Company B shall be liable for the debts of Bank C with all its assets. Company A shall be responsible for the debts within the investment scope of 2 million yuan of Bank C.. Longmou should be responsible for the debts of Bank C within the range of 6.5438+0.2 million yuan.