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9 Buyer and Seller entered into a sales contract to buy 10,000 kg chemical products at a price of RMB 200 yuan/kg, totalling RMB 2 million yuan. Among other things, the sales contract stipulated the following terms and conditions: within 10 days after the conclusion of the contract Buyer would make the advance payment of RMB 500,000 yuan and Seller was to deliver all the goods to the place of Buyer; the remaining price of RMB 1·5 million yuan should be paid within five days upon the delivery of goods; any breach of contract should be subject to the liquidated damages equivalent to 20% of the total price.
Buyer made the advance payment, but Seller did not deliver any goods. Buyer urged Seller to deliver the goods immediately, as its production would be seriously affected by the short supply of the goods. However, Seller declared force majeure as the reason for non-delivery. Seller insisted that it was only a trading company, not a producer of the chemical products. Seller alleged that upon the conclusion of the contract, it entered into a purchase agreement with a producer to buy the goods from the latter. Due to a fire accident, the producer could not supply the goods under the purchase agreement; Seller therefore could not deliver the goods to Buyer. Non-delivery of goods was due to force majeure that caused the failure to supply the goods by the producer to Seller.
Buyer refused to accept Seller’s argument and bought 10,000 kg of the same products for replacement at a price of RMB 220 yuan/kg, resulting in a total extra cost of RMB 200,000 yuan. Meanwhile it filed a lawsuit against Seller in the court, requesting liquidated damages of RMB 400,000 yuan (20% of the total price) and the damages of RMB 200,000 yuan for extra price caused for the urgent purchase.
Required:
Answer the following questions in accordance with the relevant provisions of the Contract Law, and give your reasons for your answer:
(a) state whether Seller’s argument of force majeure can be established;
(b) state whether Buyer’s claims for liquidated damages and damages should be supported by the court.
答案：
9 This question requires candidates to deal with the legal issue of force majeure under the Contract Law of China.
(a) Seller’s argument of force majeure should not be established. In accordance with Article 117 of the Contract Law, force majeure means any objective circumstances which are unforeseeable, unavoidable and insurmountable at the time of the
conclusion of the contract. In addition, Article 121 of the Contract Law provides that where a party’s breach was attributable to a third person, it shall nevertheless be liable to the other party for breach. Any dispute between the party and such third person shall be resolved in accordance with the law or the agreement between the parties.
In this case, due to the stop of production by a fire accident, Seller’s supplier was unable to supply the goods; this meant that it was not Seller but its supplier who met the force majeure. According to Article 121 of the Contract Law, Seller should be liable to Buyer for breach of contract by failure to deliver the goods.
(b) Buyer’s claim for liquidated damages should be supported by the court. In accordance with Article 114 of the Contract Law, parties to a contract may prescribe that if one party breaches the contract, it will pay a certain sum of liquidated damages to the other party in light of the degree of breach. In this case, Seller and Buyer prescribed that the liquidated damages should be 20% of the total amount of the price and Seller was a party in breach. Therefore, it should be liable for the liquidated damages.
Buyer’s claim for damages should not be supported by the court. In accordance with Article 114 of the Contract Law, the liquidated damages as prescribed by the parties are compensatory in nature. Buyer, by receiving the liquidated damages, has already recovered all its loss caused by Seller’s breach of contract. Therefore, its claim for liquidated damages and damages concurrently should not be supported.
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