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8 Aishen Garment Co entered into a contract with Bulinger Store to sell 10,000 pieces of sportswear to the latter. Under the contract Aishen Garment Co would deliver the goods at Bulinger Store’s warehouse by 30 June 2012 and receive payment upon delivery of the goods.
Having found market conditions tough after the conclusion of the contract, Bulinger Store asked to decrease the quantity of goods, but Aishen Garment Co disagreed. At this moment, Bulinger Store learnt that a company named Conka Sales intended to buy the same garments and resell them to another province. Therefore, Bulinger Store concluded an agreement with Conka Sales to transfer the rights and obligations under its contract with Aishen Garment Co.
Bulinger Store sent a letter to Aishen Garment Co, notifying it that the rights and obligations under the contract had been transferred to Conka Sales. Aishen Garment Co did not reply to the letter.
On 15 June 2012, however, Aishen Garment Co sent a fax to advise Conka Sales to be prepared for receiving the goods. At the end of June Aishen Garment Co delivered 10,000 pieces of sportswear to the premises of Conka Sales and received the total price paid by Conka Sales. However, a certificate of inspection issued by an independent institute indicated that nearly 30% of the goods were below the quality standard. Therefore, Conka Sales intended to reject the goods. Aishen Garment Co insisted that there was no contractual relationship between them, since it was merely under its contract with Bulinger Store to directly deliver the goods to Conka Sales.
Required:
Answer the following questions in accordance with the Contract Law of China, and give your reasons for your answers:
(a) state whether there was a contractual relationship between Aishen Garment Co and Conka Sales;
(b) state whether Aishen Garment Co or Bulinger Store should be liable for the defects of the goods.
答案：
8 This question requires candidates to deal with the legal issues relating to the transfer of contract under the Contract Law of China.
(a) There was a contract between Aishen Garment Co and Conka Sales. The reasons to support this conclusion include:
(i) In accordance with Article 89 of the Contract Law, where the rights and duties are transferred together, provisions of Articles 79, 81 to 83 and 85 to 87 shall apply. This means that a party may, subject to the conditions as set in the provisions, transfer its rights and obligations to a third party.
(ii) In accordance with the relevant provisions listed in Article 89 of the Contract Law, a creditor shall notify the debtor in the case of the transfer of his credit and a debtor shall obtain the consent from the creditor in the case of the transfer of his obligations. Bulinger Store was a creditor to receive the goods and as a debtor to pay the price. Therefore, Bulinger Store should notify the transfer to and obtain consent from Aishen Garment Co. In this case, Bulinger Store issued a written notice to Aishen Garment Co. Therefore, the transfer of rights satisfied the requirements of the law.
(iii) Bulinger Store Co issued a written notice to Aishen Garment Co, but failed to obtain consent from the latter. However, Aishen Garment Co sent a fax to advise Conka Sales to receive the goods, and actually delivered 10,000 pieces of sportswear as well as receiving the price paid by Conka Sales. This meant that Aishen Garment Co acknowledged the transfer of contractual rights and obligations to Conka Sales.
(b) In accordance with Article 81 of the Contract Law, where a creditor transfers his rights, the transferee acquires rights accessory to the creditor’s rights, unless the accessory right is exclusive for the creditor himself. Conka Sales, as a transferee, acquired the accessory right when it acquired the right to the goods. Hence, it was entitled to claim damages against Aishen Garment Co for the defects of the goods.
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