How are liquidated damages calculated when the seller breaches the contract?

There are several situations in which the seller breaches the contract: (1) Non-delivery. (2) Delayed delivery. (3) The delivery is inconsistent with the contract. The remedies that the buyer can take include:

1. Require the seller to actually perform.

Actual performance is in accordance with the obligations stipulated in the contract. When the seller fails to perform its contractual obligations, the buyer can require it to actually perform its contractual obligations and can force the seller to perform the above obligations through court coercion. Specifically include:

⑴ Require the seller to submit goods that comply with the provisions of the contract

⑵ Repair or replace goods that do not meet the requirements

⑶ Submit substitutes, etc.

In trade practice, actual performance is not a common remedy and is only applicable to goods transactions of specific objects or under specific circumstances. If it is not such a transaction, the buyer’s most effective remedy is to make up for it in a timely manner. goods, or abandon the transaction and then claim for loss of the difference.

The civil law system focuses on actual performance, while the common law system focuses on damages. The United Nations Convention on Contracts for the International Sale of Goods is a reconciliation of the two. Recognize its rights and limit their exercise.

According to the provisions of the United Nations Convention on Contracts for the International Sale of Goods, actual performance shall meet the following conditions:

(1) The buyer shall not adopt remedies that are inconsistent with this requirement;

(2) The buyer should give the seller a grace period to perform the contract;

(3) When the seller's delivery is inconsistent, only this discrepancy constitutes a fundamental breach of contract (Fundamental Breach) , the buyer can request to submit a substitute and deliver the substitute. The premise of replacing the goods is that the original goods cannot be returned. If the Buyer is unable to return the original item due to disposal of the goods, there will be no return or return of the original item. And when the delivery is found to be inconsistent, the other party should be notified of this requirement in a timely manner;

(4) Whether the court makes a judgment on actual performance depends on the provisions of the country's domestic law.

2. Reduce the price.

When the seller's delivery does not comply with the contract, the buyer may request a reduction in the price. The United Nations Convention on Contracts for the International Sale of Goods stipulates that the buyer may reduce the price regardless of whether the price has been paid. The reduced price shall be calculated in proportion to the value of the goods actually delivered at the time of delivery and the then-current value of the goods in compliance with the contract. Refers to the current price in the seller's location.

The buyer loses the right to demand a price reduction under the following circumstances:

(1) If the seller has taken remedial measures for non-conformity in delivery, the buyer loses the right to demand a price reduction. gold rights.

This refers to whether the seller’s remediation of non-conforming goods before and after delivery is recognized or disapproved by the buyer in accordance with Article 37-48 of the United Nations Convention on the International Sale of Goods.

See "United Nations Convention on Contracts for the International Sale of Goods"

"Article 37

If the seller delivers the goods before the delivery date, he may Before the date is reached, deliver any missing parts or make up for the insufficient quantity of the goods delivered, or deliver goods to replace goods delivered that do not conform to the contract, or remedy any non-conformity in the goods delivered, however, this The exercise of rights shall not cause the buyer to suffer unreasonable inconvenience or bear unreasonable expenses. However, the buyer reserves any right to claim damages under this Convention. ”

“Article 48

(1) Subject to the conditions of Article 49, the seller may, at his own expense, remedy any failure to perform his obligations even after the delivery date, but such remedy shall not cause unreasonable delay. , nor cause the buyer to suffer unreasonable inconvenience, or make it impossible to determine whether the seller will reimburse the buyer for the expenses advanced. However, the buyer reserves any right to claim damages under this Convention

(2) If. If the seller requests the buyer to indicate whether he accepts the performance of the seller's obligations, and the buyer does not respond to this request within a reasonable period of time, the seller may perform the obligation within the time specified in the request and the buyer shall not take any action with the seller within that period. any remedy inconsistent with the performance of its obligations.

(3) The seller’s notice indicating that he will perform his obligations within a certain period of time shall be deemed to include a requirement for the buyer to indicate his decision in accordance with the provisions of the preceding paragraph.

(4) The requirements or notifications made by the seller in accordance with paragraphs (2) and (3) of this article must take effect after the buyer receives them. ”

(2) The buyer rejects the seller’s remedies for breach of contract or the remedies proposed to the seller, and fails to respond within a reasonable time.

3. Terminate the contract.

(1) Fundamental breach of contract

The so-called fundamental breach of contract, according to the interpretation of the United Nations Convention on Contracts for the International Sale of Goods, refers to the result of one party's breach of contract that causes the other party to suffer. The party has suffered damage to the extent that he is actually deprived of what he is entitled to expect under the contract ---- (Article 25.)

Actual deprivation, translated in English as "substantial deprivation", The original English text is substantially to deprive, which means to a large extent. Substantial deprivation refers to the deprivation of the buyer's significant interests.

According to the United Nations Convention on Contracts for the International Sale of Goods, the elements that constitute a fundamental breach of contract are. :

① The breach of contract causes damage;

② The damage deprives the buyer of significant interests;

③ The consequences of the damage are foreseeable by the seller, including at the time of contracting. It is foreseeable.

According to the provisions of the United Nations Convention on the International Sale of Goods, when the seller's failure to perform the contract or the "United Nations Convention on the International Sale of Goods" obligations constitutes a fundamental breach of the contract, the buyer can terminate the contract.

Fundamental breach of contract specifically includes the following three contents:

① The seller’s failure to deliver the goods, delayed delivery or inconsistent delivery or defective ownership constitutes a fundamental breach of contract;

② The seller declares that he will not perform his delivery obligations within the stipulated time;

③ Still does not perform the contract after the expiration of the grace period given by the buyer

(2) When the seller breaches the contract, the buyer may. The contract is canceled under the following circumstances:

① The seller fundamentally breaches the contract

② If the seller fails to deliver the goods within a reasonable period of time, or declares that he will not deliver the goods. < /p>

(3) When the seller has delivered the goods

If the seller has delivered the goods, the buyer loses the right to terminate the contract unless:

① In case of delay in delivery. In the case of non-compliance, the buyer shall terminate the contract within a reasonable time after learning of the delivery;

②In the case of non-compliance with the delivery, the buyer shall terminate the contract within a reasonable time after inspecting the goods;

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③ Announce the termination of the contract after the expiration of the grace period given to the seller to perform the contract or make remedies or within a reasonable time after refusing to accept the performance of the seller's obligations.

According to the United Nations International Goods. The Convention on Sales Contracts stipulates that the buyer's declaration of rescission of the contract will only take effect when it sends notice to the seller.

It is worth noting that when the goods delivered by the seller are partially in compliance with the contract, the buyer shall. Accept the part that conforms to the provisions; only when the seller's complete failure to deliver or failure to deliver as stipulated in the contract constitutes a fundamental breach of the contract, one party can declare the entire contract void. When the seller's delivery quantity is greater than the quantity stipulated in the contract, the buyer has the option to accept all or reject the excess delivery.

4. Request the seller to deliver a substitute.

Only when it constitutes a fundamental breach of contract can the seller be required to deliver a substitute.

5. Ask the seller to make repairs.

Depending on the specific situation, you can also repair it yourself or ask a third party to repair it, and the seller will pay the expenses.

6. Give the seller a reasonable period of time to perform its contractual obligations.

(1) The meaning of "reasonable time".

This is the Seller’s remedy for delay in delivery. There are two basic meanings:

① If the other party fails to deliver the goods when it is due, the contract cannot be canceled in a few days! Let’s extend it for a while!

②Article 49 of the United Nations Convention on Contracts for the International Sale of Goods stipulates that if non-delivery occurs and the seller fails to perform its obligations within an additional period of time specified by the buyer for a reasonable time limit, the buyer may declare the contract invalid. .

Declaring the contract invalid at this time not only appears to be extremely benevolent, but also complies with legal regulations.

(2) Different countries have different practices.

If the other party fails to deliver the goods when due, does the buyer have to give the seller a reasonable extra time to perform its contractual obligations, but cannot immediately declare the cancellation of the contract?

① British approach:

Whether the buyer can immediately cancel the contract depends on what terms the seller violated. If the breach of warranty (Breach of Warranty) occurs, the buyer cannot rescind the contract and can only claim damages. If there is a breach of condition (Breach of Condition), the contract can be revoked immediately. According to general interpretation, the delivery time in commercial sales transactions is an essential element of the contract. If the goods are not delivered within the specified time, it should be considered a violation of the conditions, and the buyer can immediately cancel the contract.

②Germany’s approach:

If the seller cannot deliver the goods on time, the buyer should make a "durgent notice". In a "demonstration", the seller is given a period of time to deliver the goods. If the goods are not delivered, the buyer can terminate the contract or request compensation.

③The provisions of the United Nations Convention on Contracts for the International Sale of Goods:

Generally, the same as in Germany.

If delayed delivery constitutes a fundamental breach of contract, the contract can be terminated directly. However, what circumstances constitute a fundamental breach of contract?

Scholars gave 2 examples of fundamental breach of contract:

Case 1: Importing turkeys for Christmas for sale in the Christmas market. Delivery was 1 week late and Christmas was already over. It is a fundamental breach of contract and the buyer can cancel the contract.

Case 2: The seller of the contract to sell ordinary chickens should ship from July to August, but the actual shipment date was one week late. During this period, there was no change in the market. This is not a fundamental breach of contract and the buyer cannot rescind the contract.

④ If the buyer gives the seller a reasonable additional period of time, during this period, the buyer cannot take any remedy against the seller unless it is notified by the seller that the seller will not perform its obligations during this period. Of course, the buyer does not lose the right to claim damages because the seller failed to deliver the goods on time.

7. The seller may make remedial measures at its own expense if it fails to perform its obligations.

(1) Requirement for remediation.

The seller must make its own remedies and meet the following requirements:

(1) The buyer has not canceled the contract as required.

(2) The seller should bear the remediation costs.

(3) When remediating, the seller shall not cause unreasonable inconvenience or delay to the buyer.

(2) Things to note by both parties.

At the same time, if the seller requires the buyer to expressly indicate whether he accepts the seller's obligation to perform, and the buyer does not respond to this request within a reasonable period of time, the seller may perform the obligation within that time. At this time, the buyer shall not take any remedy that conflicts with the performance of the seller's obligations during this period. That is:

(1) The seller should notify the buyer in advance when preparing for the above performance.

(2) If the buyer does not reply, it means consent. Therefore, the buyer shall not take any remedy that conflicts with the seller's performance of its obligations during this period. For example, the buyer cannot cancel the contract during this period.

8. If the seller delivers part of the goods, the buyer can take remedies.

When the seller only delivers part of the goods, or only part of the goods delivered are up to standard, the buyer can take remedies.

(1) The buyer can only return undelivered or unqualified goods, reduce the price, and demand compensation for losses. The contract cannot be revoked.

(2) If the seller only delivers part of the goods, or only part of the goods delivered are up to standard, which constitutes a fundamental breach of contract, the contract can be revoked.

9. When the seller delivers goods in advance or over-deliveries, the buyer can take remedies.

(1) If delivery is made in advance, the buyer can take delivery of the goods or refuse to take delivery. When it is delivered at the specified time, it should still be collected.

(2) The excess part can be accepted or rejected. If accepted, it will be at the price stipulated in the contract.

10. Request for damages.

The United Nations Convention on Contracts for the International Sale of Goods considers that claiming damages is a primary remedy, and the right to claim damages will not be lost because other remedies have been adopted. Any calculation of damages shall be based on the following circumstances:

(1) Actual supplement (Cover). If the buyer cancels the contract and purchases a replacement at a reasonable price (referring to the lowest price) within a reasonable period of time after the cancellation, the buyer can obtain the price difference between the two and compensation for the loss caused by the seller (such as other than the price). , additional expenses). This is called actual supplementation.

(2) If there is no actual replenishment of goods, the price difference and loss compensation can also be obtained according to the local price. How are liquidated damages calculated?

It depends on how liquidated damages are stipulated in your contract. How are telecommunications liquidated damages calculated?

The specific calculation of liquidated damages depends on the package content. Please go to the physical business hall for consultation.

According to the current business-related rules, telecommunications products within the agreement period cannot be shut down, transferred or canceled. Otherwise, it will be a breach of contract and you will need to pay liquidated damages before handling it. It is recommended to wait until the agreement period expires to handle it. How are liquidated damages in a contract calculated?

Relevant provisions of the "Contract Law":

Article 112 If one party fails to perform its contractual obligations or the performance of its contractual obligations does not comply with the agreement, If the other party has other losses after performing its obligations or taking remedial measures, it shall compensate for the losses.

Article 113 If one party fails to perform its contractual obligations or performs its contractual obligations inconsistently with the agreement, causing losses to the other party, the amount of compensation shall be equal to the losses caused by the breach of contract, including after the performance of the contract. The benefits that can be obtained shall not exceed the possible losses that the breaching party foresees or should have foreseen when entering into the contract.

If an operator commits fraud in providing goods or services to consumers, he shall be liable for damages in accordance with the provisions of the "Consumer Rights and Interests Protection Law of the People's Republic of China".

Article 114 The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party based on the circumstances of the breach, and may also agree on a method for calculating the amount of compensation for losses arising from the breach of contract.

If the agreed liquidated damages are lower than the losses caused, the parties may request the People's Court or the arbitration institution to increase the amount; if the agreed liquidated damages are excessively higher than the losses caused, the parties may request the People's Court or the arbitration institution to increase the amount Appropriate reduction.

If the parties agree on liquidated damages for delayed performance, the defaulting party shall also perform its debts after paying the liquidated damages. How is the penalty for telecommunications cards calculated?

It’s hard to say, it depends on the business. The business with Internet connection is estimated to cost 500-600. Others should be relatively less.

How are liquidated damages for 4G bills calculated?

If the last payment date is exceeded, three thousandths of the bill amount will be charged daily. How is China Mobile's liquidated damages calculated?

Liquidated damages can be divided into statutory liquidated damages and agreed liquidated damages. Statutory liquidated damages refer to the amount or proportion of liquidated damages expressly stipulated in laws and regulations; agreed liquidated damages refer to the amount or proportion of liquidated damages agreed upon by both parties when signing the contract. If the parties only provide for liquidated damages in principle in the contract and do not specifically agree on the proportion or amount of liquidated damages, they should be handled in accordance with the specific provisions of relevant laws and regulations; if the relevant regulations do not clearly stipulate the proportion of liquidated damages, then It should be implemented in accordance with the general principles of liability for liquidated damages in the General Principles of Civil Law and the Contract Law.

If there is no provision for liquidated damages in the contract, but as long as the breach of contract causes losses to the other party, the breaching party shall pay compensation to the other party. The amount of the compensation can be implemented in accordance with the relevant regulations in effect at the time the contract is signed. The relevant regulations do not stipulate the proportion of liquidated damages, and if the breach of contract does not cause losses to the other party, it can be handled as appropriate based on the actual situation. Let’s talk about the determination and application of the amounts of statutory liquidated damages and agreed liquidated damages.

1. Statutory liquidated damages

The contract provides for liquidated damages in principle, and relevant regulations stipulate the proportion of liquidated damages, and statutory liquidated damages shall apply.

In this case, due to differences in the content of the contract, the nature and degree of breach of contract, the method and amount of liquidated damages are also different. First, if the relevant regulations clearly stipulate the proportion of liquidated damages, the amount of liquidated damages can be calculated directly based on this proportion.

For example, Article 35, Item 5 of the "Regulations on Purchase and Sale Contracts of Industrial and Mining Products" stipulates that in case of overdue delivery, the total value of overdue delivery shall be calculated according to the provisions of the People's Bank of China on deferred payment, and the amount shall be paid to the demander. Pay liquidated damages for late delivery. It is clearly stipulated here that the proportion of liquidated damages for delayed delivery is three ten thousandths per day. Another example is Article 21, Item 4 of the Regulations on Contract Contracts, which stipulates that if an ordered product is delivered overdue, liquidated damages shall be paid to the ordering party in accordance with the provisions of the contract. Calculated in terms of remuneration, liquidated damages shall be paid at one thousandth of the total remuneration for the overdue delivery part for each overdue day.

It can be seen that the calculation standard for statutory liquidated damages for delayed performance of a contract is fixed. Various demurrage charges, late payment fees, etc. shall apply as specified above. Second, relevant regulations only stipulate a certain proportion of liquidated damages. This requires the people's court or contract arbitration agency that accepts the case to determine a certain ratio in order to calculate the amount of liquidated damages. For example, Article 35, Item 1 of the "Regulations on Purchase and Sale Contracts of Industrial and Mining Products" stipulates that if the supplier cannot deliver the goods, it shall pay liquidated damages to the demander. The liquidated damages for general products range from 1% to 5% of the total value of the goods that cannot be delivered. Generally speaking, statutory liquidated damages for non-performance or incomplete performance of a contract are within a certain proportion.

2. Liquidated damages

Since the proportion of liquidated damages is not expressly stipulated in the law, it is also inconsistent in practice. Some people believe that the amount of liquidated damages cannot exceed the statutory liquidated damages, and any amount exceeding the amount is invalid. However, in practice, we often encounter the problem of excessively high liquidated damages. How should the proportion or amount of liquidated damages be determined? Let’s talk about lawyers’ views from several aspects. The maximum limit of liquidated damages is stipulated to be the total amount of payment or remuneration for the defaulted part, which includes both liquidated damages for non-performance or incomplete performance of the contract and various liquidated damages for delayed performance of the contract.

Legally speaking, Article 122, Item 2 of the General Principles of Civil Law stipulates that the parties may agree in the contract that when one party breaches the contract, it will pay a certain amount of liquidated damages to the other party. This law does not limit the amount of liquidated damages and allows parties to use liquidated damages to make up for the shortcomings of certain statutory liquidated damages that are too low. For example, the "Regulations on Purchase and Sale Contracts of Industrial and Mining Products" stipulates that the proportion of statutory liquidated damages for general products is only 1% to 5% of the payment for the defaulted part. This gives some unscrupulous businessmen an opportunity. For example, when a supplier's products become in short supply due to changes in market conditions, they may violate the contract and refuse to supply the goods. Even if they pay the maximum amount of liquidated damages, they are still very profitable. . This is obviously not conducive to the stability of the socialist economic order and is not conducive to protecting the legitimate rights and interests of the parties to the contract. Therefore, the law stipulates that it is absolutely necessary for the parties to negotiate and agree on liquidated damages on top of the statutory liquidated damages.

Higher liquidated damages can play a positive role in preventing breach of contract. However, such an agreement is not unlimited. According to the principles of fairness and good faith in the General Principles of Civil Law, as well as the conventions in judicial practice, it is more appropriate to limit the amount of liquidated damages to the total payment or total remuneration of the defaulted part. . However, if the relevant regulations have special provisions on the amount of liquidated damages, the special provisions should be followed. As stipulated in Article 19, Item 1 of the "Implementing Rules for Road Carriage of Goods Contracts", the amount of liquidated damages shall be negotiated by both parties and treated equally. Generally, the maximum amount of liquidated damages shall not exceed 10% of the accrued freight of the transportation volume. In this regard, it is agreed that the maximum proportion of liquidated damages should also be 10% of the accrued freight for the defaulted part of the shipment.

It is worth noting that the limit on the maximum amount of liquidated damages mentioned here is different from the defaulting party’s compensation for the other party’s actual losses. Article 122, paragraph 1, of the General Principles of the Civil Law stipulates that the liability for compensation by one party for breach of contract shall be equivalent to the losses suffered by the other party as a result. For example, if the total payment value of a purchase and sales contract is 50,000 yuan, the liquidated damages are 10,000 yuan. If the supplier fails to perform the contract, the demander suffers an economic loss of 60,000 yuan. In this regard, the breaching supplier shall not only pay a liquidated damages of 10,000 yuan, but also compensate for economic losses of 50,000 yuan. In judicial practice, when determining the liquidated damages clause of a specific contract, one should first look at whether it complies with the general principles of entering into economic contracts. That is to say, it depends on whether it is obviously unfair, whether there is coercion or fraud, etc.

The English name of China Mobile Communications Group Co., Ltd. is "China Mobile Communications Group Co.,Ltd" (referred to as "China Mobile"). It was established on April 20, 2000. It is a company based on GSM, TD- Mobile communication operator of SCDMA and TD-LTE standard networks. China Mobile Communications Group Corporation is a state-owned backbone enterprise established on the basis of the overall divestment of the original China Telecom's mobile communications assets in accordance with the country's arrangements and requirements for the reform of the telecommunications system. It was officially listed on May 16, 2000. China Mobile Communications Group Corporation wholly owns China Mobile (Hong Kong) Group Co., Ltd., and China Mobile Co., Ltd. (the "listed company") controlled by it has established wholly-owned subsidiaries in 31 domestic provinces (autonomous regions and municipalities) and the Hong Kong Special Administrative Region. The company is listed in Hong Kong and New York.

In addition to the original "M-Zone", "China Travel", "Global Communication", "Power 100" and "G3", China Mobile announced the 4G brand designed in cooperation with Zhengbang on December 18, 2013 "And! And" marks the official launch of China Mobile's 4G business. The development slogan is: Mobile 4G, international mainstream, one step ahead of others.

On July 20, 2016, the Fortune Global 500 was released, and China Mobile Communications Group Corporation ranked among the Fortune Global 500. [1] In August 2016, China Mobile ranked 10th among the top 500 Chinese companies in 2016. [2] In July 2017, China Mobile ranked 6th among the top 500 Chinese companies in 2016. [3] In November 2017, it ranked Tier I in the "2017 Top 100 Innovative Enterprises in Mainland China". [4] On December 25, 2017, China Mobile announced that the company name had been changed from "China Mobile Communications Group Co., Ltd." to "China Mobile Communications Group Co., Ltd." How are liquidated damages for U-installment loans calculated?

Hello, the liquidated penalty of Youyi installment loan is the repayment day of the month multiplied by the number of days. The more days, the higher the liquidated penalty. It is recommended to repay on time and maintain a good credit record.

Welcome to Youfenqin. The official website recommendation code is 55507. How is the penalty calculated for vehicle mortgage default? Is it calculated based on the total amount of the loan?

Liquidated damages provisions:

Liquidated damages refer to the money that should be paid to the other party if one party breaches the contract according to the agreement of the parties or direct provisions of the law.

The standard for liquidated damages is money, but the parties may also agree that the subject matter of liquidated damages is property other than money.

Liquidated damages have the effect of guaranteeing the performance of debts, and have the effect of punishing the defaulter and compensating the loss suffered by the party without fault. Therefore, some countries use it as one of the measures to guarantee the contract, and some countries use it as one of the measures to guarantee the contract. as a way to assume liability for breach of contract.