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最高人民法院关于审理买卖合同纠纷案件适用法律问题的解释(中英文)

   Interpretation of the Supreme People’s Court on Issues Concerning the Application

  of Law for the Trial of Cases of Disputes over Sales Contracts

  最高人民法院《关于审理买卖合同纠纷案件适用法律问题的解释》已于2012年3月31日由最高人民法院审判委员会第1545次会议通过,现予公布,自2012年7月1日起施行。

  二○一二年五月十日

  The Interpretation of the Supreme People’s Court on Issues Concerning the Application of Law for the Trial of Cases of Disputes over Sales Contracts, adopted at the 1545th session of the Judicial Committee of the Supreme People’s Court on March 31, 2012, is hereby issued and shall come into force on July 1, 2012.

  May 10, 2012

  为正确审理买卖合同纠纷案件,根据《中华人民共和国民法通则》、《中华人民共和国合同法》、《中华人民共和国物权法》、《中华人民共和国民事诉讼法》等法律的规定,结合审判实践,制定本解释。

  For the purpose of properly trying cases of disputes over sales contracts, this Interpretation is formulated according to the provisions of the General Principles of the Civil Law of the People’s Republic of China, the Property Law of the People’s Republic of China, the Civil Procedure Law of the People’s Republic of China and other laws as well as in light of judicial practice.

  一、 买卖合同的成立及效力 Formation and Validity of Sales Contracts

  第一条 当事人之间没有书面合同,一方以送货单、收货单、结算单、发票等主张存在买卖合同关系的,人民法院应当结合当事人之间的交易方式、交易习惯以及其他相关证据,对买卖合同是否成立作出认定。

  对账确认函、债权确认书等函件、凭证没有记载债权人名称,买卖合同当事人一方以此证明存在买卖合同关系的,人民法院应予支持,但有相反证据足以推翻的除外。

  Article 1 Where there is no written contract between the parties and one party claims that a sales contract exists on the basis of delivery notes, goods received notes, settlement statements and invoices, the people’s court shall determine whether a sales contract has been formed by considering the transaction methods and customary business practices between the parties as well as other relevant evidence.

  Where no name of a creditor is recorded in correspondence or certificates such as confirmation letters on account reconciliation or written confirmations of creditor’s rights, and one party to a sales contract from this offers proof that a sales contract exists, the people’s court shall support such proof, unless it can be invalidated by sufficient evidence to the contrary.

  第二条 当事人签订认购书、订购书、预订书、意向书、备忘录等预约合同,约定在将来一定期限内订立买卖合同,一方不履行订立买卖合同的义务,对方请求其承担预约合同违约责任或者要求解除预约合同并主张损害赔偿的,人民法院应予支持。

  Article 2 Where both parties have signed preliminary agreements such as purchase offers, purchase orders, subscription books, letters of intent, and memorandums, and have agreed that a sales contract is to be concluded within a certain period of time, if one party does not perform the obligation of concluding a sales contract and the other party requests that it assume liability for breach of the preliminary agreements or demands the rescission of the preliminary agreements and claims compensation for damages, the people’s court shall support such claims.

  第三条 当事人一方以出卖人在缔约时对标的物没有所有权或者处分权为由主张合同无效的,人民法院不予支持。

  出卖人因未取得所有权或者处分权致使标的物所有权不能转移,买受人要求出卖人承担违约责任或者要求解除合同并主张损害赔偿的,人民法院应予支持。

  Article 3 Where one party claims that a contract is void on the grounds that the seller had no ownership or right of disposal over the subject matter at the time of contract formation, the people’s court shall not support such claims.

  Where the ownership of the subject matter cannot be transferred because the seller failed to acquire the ownership or right of disposal, if the buyer demands that the seller assume liability for breach of contract or demands the rescission of the contract and claims compensation for damages, the people’s court shall support such claims.

  第四条 人民法院在按照合同法的规定认定电子交易合同的成立及效力的同时,还应当适用电子签名法的相关规定。

  Article 4 The people’s court shall concurrently apply the relevant provisions of the Law on Electronic Signatures when determining the formation and validity of an electronic transaction contract according to the provisions of the Contract Law.

  一、 标的物交付和所有权转移 Delivery of the Subject Matter and Transfer of Ownership

  第五条 标的物为无需以有形载体交付的电子信息产品,当事人对交付方式约定不明确,且依照合同法第六十一条的规定仍不能确定的,买受人收到约定的电子信息产品或者权利凭证即为交付。

  Article 5 Where the subject matter is an electronic product not requiring physical delivery, the parties have not explicitly agreed upon the delivery mode and the delivery mode also cannot be determined according to the provisions of Article 61 of the Contract Law, delivery shall be deemed to occur when the buyer receives the agreed-upon electronic product or a certification of rights.

  第六条 根据合同法第一百六十二条的规定,买受人拒绝接收多交部分标的物的,可以代为保管多交部分标的物。买受人主张出卖人负担代为保管期间的合理费用的,人民法院应予支持。

  买受人主张出卖人承担代为保管期间非因买受人故意或者重大过失造成的损失的,人民法院应予支持。

  Article 6 According to the provisions of Article 162 of the Contract Law, where the buyer rejects the excess quantity of subject matter, the buyer may keep custody of the excess quantity for the seller. Where the buyer claims that the seller is to assume reasonable expenses during the custody period, the people’s court shall support such claims.

  Where the buyer claims that the seller is to assume any losses not caused by the intentional conduct or gross negligence of the buyer during the custody period, the people’s court shall support such claims.

  第七条 合同法第一百三十六条规定的“提取标的物单证以外的有关单证和资料”,主要应当包括保险单、保修单、普通发票、增值税专用发票、产品合格证、质量保证书、质量鉴定书、品质检验证书、产品进出口检疫书、原产地证明书、使用说明书、装箱单等。

  Article 7 The “relevant documents and materials in addition to the document for taking delivery of the subject matter” as prescribed in Article 136 of the Contract Law shall mainly include insurance policies, warranties, ordinary invoices, special VAT invoices, product qualification certificates, quality guarantee certificates, quality appraisal certificates, quality inspection certificates, product entry-exit quarantine certificates, certificates of origin, users’ manuals, and packing lists.

  第八条 出卖人仅以增值税专用发票及税款抵扣资料证明其已履行交付标的物义务,买受人不认可的,出卖人应当提供其他证据证明交付标的物的事实。

  合同约定或者当事人之间习惯以普通发票作为付款凭证,买受人以普通发票证明已经履行付款义务的,人民法院应予支持,但有相反证据足以推翻的除外。

  Article 8 Where the seller offers proof of the performance of the obligation to deliver the subject matter on the basis of special VAT invoices and tax deduction materials only, but such proof is not accepted by the buyer, the seller shall provide other evidence to prove the fact that the subject matter has been delivered.

  Where, according to the contractual provisions or parties’ custom, ordinary invoices are treated as proof of payment, if the buyer proves that it has performed the obligation of payment on the basis of ordinary invoices, the people’s court shall support such proof, unless it can be invalidated by sufficient evidence to the contrary.

  第九条 出卖人就同一普通动产订立多重买卖合同,在买卖合同均有效的情况下,买受人均要求实际履行合同的,应当按照以下情形分别处理:

  (一)先行受领交付的买受人请求确认所有权已经转移的,人民法院应予支持;

  (二)均未受领交付,先行支付价款的买受人请求出卖人履行交付标的物等合同义务的,人民法院应予支持;

  (三)均未受领交付,也未支付价款,依法成立在先合同的买受人请求出卖人履行交付标的物等合同义务的,人民法院应予支持。

  Article 9 Where the seller concludes several sales contracts for the same ordinary personal property, and the buyers all demand actual performance of the contracts and all the sales contracts are valid, the people’s court shall handle the matter differently according to the following circumstances:

  (1) where the buyer first to take delivery requests confirmation of transfer of ownership, the people’s court shall support such requests;

  (2) where no buyer takes delivery, and the buyer first to make payment requests that the seller perform contractual obligations including the delivery of the subject matter, the people’s court shall support such requests; or

  (3) where no buyer takes delivery of the subject matter or makes payment, but the buyer whose contract has been formed in accordance with law requests that the seller perform contractual obligations including delivery of the subject matter, the people’s court shall support such requests.

  第十条 出卖人就同一船舶、航空器、机动车等特殊动产订立多重买卖合同,在买卖合同均有效的情况下,买受人均要求实际履行合同的,应当按照以下情形分别处理:

  (一)先行受领交付的买受人请求出卖人履行办理所有权转移登记手续等合同义务的,人民法院应予支持;

  (二)均未受领交付,先行办理所有权转移登记手续的买受人请求出卖人履行交付标的物等合同义务的,人民法院应予支持;

  (三)均未受领交付,也未办理所有权转移登记手续,依法成立在先合同的买受人请求出卖人履行交付标的物和办理所有权转移登记手续等合同义务的,人民法院应予支持;

  (四)出卖人将标的物交付给买受人之一,又为其他买受人办理所有权转移登记,已受领交付的买受人请求将标的物所有权登记在自己名下的,人民法院应予支持。

  Article 10 Where the seller concludes several sales contracts for the same special personal property such as a ship, aircraft or motor vehicle, and the buyers all demand the actual performance of the contracts and all the sales contracts are valid, the people’s court shall handle the matter differently according to the following circumstances:

  (1) where the buyer first to take delivery requests that the seller perform contractual obligations including the handling of formalities for transferring and registering ownership, the people’s court shall support such requests;

  (2) where no buyer takes delivery, and the buyer that has handled the formalities for transferring and registering ownership in advance requests that the seller perform contractual obligations including the delivery of the subject matter, the people’s court shall support such requests;

  (3) where no buyer takes delivery of the subject matter or handles the formalities for transferring and registering ownership, if the buyer that has first formed the contract in accordance with law requests that the seller perform contractual obligations including the delivery of the subject matter and the handling of formalities for transferring and registering ownership, the people’s court shall support such requests; or

  (4) where the seller delivers the subject matter to one of the buyers and handles the formalities for registering ownership for another buyer, if the buyer that has taken delivery of the subject matter requests registration of ownership of the subject matter under its name, the people’s court shall support such requests.

  二、 标的物风险负担 Assumption of Risk for the Subject Matter

  第十一条 合同法第一百四十一条第二款第(一)项规定的“标的物需要运输的”,是指标的物由出卖人负责办理托运,承运人系独立于买卖合同当事人之外的运输业者的情形。标的物毁损、灭失的风险负担,按照合同法第一百四十五条的规定处理。

  Article 11 The words “if the subject matter needs to be transported,” as prescribed in item (1) of paragraph 2 of Article 141 of the Contract Law, refer to circumstances where the seller is responsible for handling the formalities for consignment of the subject matter and the carrier is a forwarder that is independent from the parties to the sales contract. The assumption of risk for damage to or loss of the subject matter shall be subject to Article 145 of the Contract Law.

  第十二条 出卖人根据合同约定将标的物运送至买受人指定地点并交付给承运人后,标的物毁损、灭失的风险由买受人负担,但当事人另有约定的除外。

  Article 12 After the seller transports the subject matter to the place designated by the buyer and delivers it to the carrier as agreed upon in the contract, risks of damage to or loss of the subject matter shall be assumed by the buyer, except as otherwise agreed upon by the parties.

  第十三条 出卖人出卖交由承运人运输的在途标的物,在合同成立时知道或者应当知道标的物已经毁损、灭失却未告知买受人,买受人主张出卖人负担标的物毁损、灭失的风险的,人民法院应予支持。

  Article 13 Where the seller sells subject matter that has been delivered to a carrier for transport and it is in transit, and the seller knows or should have known that the subject matter has been damaged or lost at the time of the formation of the contract but fails to inform the buyer, if the buyer claims that the seller assumes risk of damage to or loss of the subject matter, the people’s court shall support such claims.

  第十四条 当事人对风险负担没有约定,标的物为种类物,出卖人未以装运单据、加盖标记、通知买受人等可识别的方式清楚地将标的物特定于买卖合同,买受人主张不负担标的物毁损、灭失的风险的,人民法院应予支持。

  Article 14 Where the parties do not agree upon the assumption of risk, the subject matter is a general product class, and the seller fails to clearly specify the subject matter of the sales contract by recognizable means such as shipping documents, affixing marks, and notification of the buyer, if the buyer claims that it does not assume risk of damage to or loss of the subject matter, the people’s court shall support such claims.

  三、 标的物检验IV. Inspection of the Subject Matter

  第十五条 当事人对标的物的检验期间未作约定,买受人签收的送货单、确认单等载明标的物数量、型号、规格的,人民法院应当根据合同法第一百五十七条的规定,认定买受人已对数量和外观瑕疵进行了检验,但有相反证据足以推翻的除外。

  Article 15 Where the parties have not agreed upon the inspection period for the subject matter, and the delivery notes and confirmation forms indicating the quantity, model, and specifications of the subject matter have been signed by the buyer, the people’s court shall, according to Article 157 of the Contract Law, determine that the buyer has inspected for quantity and external defects, unless such determination can be invalidated by sufficient evidence to the contrary.

  第十六条 出卖人依照买受人的指示向第三人交付标的物,出卖人和买受人之间约定的检验标准与买受人和第三人之间约定的检验标准不一致的,人民法院应当根据合同法第六十四条的规定,以出卖人和买受人之间约定的检验标准为标的物的检验标准。

  Article 16 Where the seller delivers the subject matter to a third party as instructed by the buyer, and the inspection standards agreed upon between the seller and the buyer are inconsistent with those agreed upon between the buyer and the third party, the people’s court shall, according to Article 64 of the Contract Law, determine the inspection standards agreed upon between the seller and the buyer to be the inspection standards for the subject matter.

  第十七条 人民法院具体认定合同法第一百五十八条第二款规定的“合理期间”时,应当综合当事人之间的交易性质、交易目的、交易方式、交易习惯、标的物的种类、数量、性质、安装和使用情况、瑕疵的性质、买受人应尽的合理注意义务、检验方法和难易程度、买受人或者检验人所处的具体环境、自身技能以及其他合理因素,依据诚实信用原则进行判断。

  合同法第一百五十八条第二款规定的“两年”是最长的合理期间。该期间为不变期间,不适用诉讼时效中止、中断或者延长的规定。

  Article 17 When determining the "reasonable period" as prescribed in paragraph 2 of Article 158 of the Contract Law, the people’s court shall comprehensively take into account the transaction nature, purpose, methods, and customary business practice between the parties, the category, quantity and nature of the subject matter, the circumstances regarding installation and use, the nature of any defects, the duty of reasonable care to be assumed by the buyer, the inspection methods and their degree of difficulty, the specific environment at the location of the buyer or inspector and their own skills as well as other reasonable factors, and make a judgment based on the principle of good faith.

  “Two years” as prescribed in paragraph 2 of Article 158 of the Contract Law is the longest reasonable period. This period is a non-variable period and does not apply to provisions on the suspension, interruption or extension of the statute of limitations.

  第十八条 约定的检验期间过短,依照标的物的性质和交易习惯,买受人在检验期间内难以完成全面检验的,人民法院应当认定该期间为买受人对外观瑕疵提出异议的期间,并根据本解释第十七条第一款的规定确定买受人对隐蔽瑕疵提出异议的合理期间。

  约定的检验期间或者质量保证期间短于法律、行政法规规定的检验期间或者质量保证期间的,人民法院应当以法律、行政法规规定的检验期间或者质量保证期间为准。

  Article 18 Where the inspection period agreed upon is too short, if according to the nature of the subject matter and the customary business practice, the buyer cannot complete full inspection within the inspection period, the people’s court shall determine that such an inspection period is the period during which the buyer can raise an objection to external defects and shall, according to the provisions of paragraph 1 of Article 17 of this Interpretation, determine the reasonable period during which the buyer can raise an objection to latent defects.

  Where the inspection period agreed upon or the quality guarantee period is shorter than that as prescribed in laws and administrative regulations, the people’s court shall determine that the inspection period or quality guarantee period is subject to such provisions of laws and administrative regulations.

  第十九条 买受人在合理期间内提出异议,出卖人以买受人已经支付价款、确认欠款数额、使用标的物等为由,主张买受人放弃异议的,人民法院不予支持,但当事人另有约定的除外。

  Article 19 Where the buyer raises an objection within the reasonable period, if the seller claims that the buyer has waived the objection on the grounds that the buyer has made payment, confirmed the amount owed, or used the subject matter, the people’s court shall not support such claims, except where the parties have agreed otherwise.

  第二十条 合同法第一百五十八条规定的检验期间、合理期间、两年期间经过后,买受人主张标的物的数量或者质量不符合约定的,人民法院不予支持。

  出卖人自愿承担违约责任后,又以上述期间经过为由翻悔的,人民法院不予支持。

  Article 20 After the inspection period, the reasonable period, and the two-year period as prescribed in Article 158 of the Contract Law have passed, where the buyer claims that the quantity or quality of the subject matter does not comply with the contractual agreement, the people’s court shall not support such claims.

  After the seller voluntarily assumes liability for breach of contract, where the seller retracts the assumption of liability on the ground that the time periods mentioned in the preceding paragraph have expired, the people’s court shall not support such a retraction.

  四、 违约责任IV. Liability for Breach of Contract

  第二十一条 买受人依约保留部分价款作为质量保证金,出卖人在质量保证期间未及时解决质量问题而影响标的物的价值或者使用效果,出卖人主张支付该部分价款的,人民法院不予支持。

  Article 21 Where the buyer retains a portion of the contract price as a quality guarantee deposit as agreed upon in the contract, and the seller fails to resolve quality problems in a timely manner within the quality guarantee period, which affects the value or utility of the subject matter, if the seller claims the payment of such portions of the contract price, the people’s court shall not support such claims.

  第二十二条 买受人在检验期间、质量保证期间、合理期间内提出质量异议,出卖人未按要求予以修理或者因情况紧急,买受人自行或者通过第三人修理标的物后,主张出卖人负担因此发生的合理费用的,人民法院应予支持。

  Article 22 Where the buyer raises an objection regarding quality within the inspection period, quality guarantee period, or reasonable period, if the seller fails to repair the subject matter as demanded or, due to emergency the buyer repairs the subject matter itself or through a third party, and the buyer claims that the seller is to assume the reasonable expenses incurred thereby, the people’s court shall support such claims.

  第二十三条 标的物质量不符合约定,买受人依照合同法第一百一十一条的规定要求减少价款的,人民法院应予支持。当事人主张以符合约定的标的物和实际交付的标的物按交付时的市场价值计算差价的,人民法院应予支持。

  价款已经支付,买受人主张返还减价后多出部分价款的,人民法院应予支持。

  Article 23 Where the quality of the subject matter does not comply with the contractual provisions, if the buyer claims a reduction of price according to Article 111 of the Contract Law, the people’s court shall support such claims. Where the parties claim that the price difference is to be calculated according to the market value, at the time of delivery, of the subject matter that would comply with the contractual agreement as compared to the subject matter that was actually delivered, the people’s court shall support such claims.

  After payment is made, where the buyer claims that the excess price after reduction should be returned, the people’s court shall support such claims.

  第二十四条 买卖合同对付款期限作出的变更,不影响当事人关于逾期付款违约金的约定,但该违约金的起算点应当随之变更。

  买卖合同约定逾期付款违约金,买受人以出卖人接受价款时未主张逾期付款违约金为由拒绝支付该违约金的,人民法院不予支持。

  买卖合同约定逾期付款违约金,但对账单、还款协议等未涉及逾期付款责任,出卖人根据对账单、还款协议等主张欠款时请求买受人依约支付逾期付款违约金的,人民法院应予支持,但对账单、还款协议等明确载有本金及逾期付款利息数额或者已经变更买卖合同中关于本金、利息等约定内容的除外。

  买卖合同没有约定逾期付款违约金或者该违约金的计算方法,出卖人以买受人违约为由主张赔偿逾期付款损失的,人民法院可以中国人民银行同期同类人民币贷款基准利率为基础,参照逾期罚息利率标准计算。

  Article 24 A change of the payment period in a sales contract does not affect liquidated damages for late payment agreed upon by the parties; however, the accounting of time for such liquidated damages shall be changed accordingly.

  Where liquidated damages for late payment have been agreed upon in a sales contract, but the seller refuses to pay the liquidated damages on the ground that the seller did not claim the liquidated damages for late payment when accepting payment, the people’s court shall not support such refusals.

  Where liquidated damages for late payment have been agreed upon in a sales contract, but there is no reference to duties regarding late payment in the account statement or repayment agreement, if the seller requests that the buyer pay liquidated damages for late payment according to the contractual provisions when the seller claims the amount owed on the basis of the account statement or repayment agreement, the people’s court shall support such a request, unless the principal and the amount of interest accrued from late payment are expressly stated in the statement or repayment agreement, or the details agreed upon regarding the principal and interest in the sales contract have been changed.

  Where there are no contractual provisions on liquidated damages for late payment or calculation methods therefor, if the seller claims compensation for losses caused by late payment on the ground that the buyer breached the contract, the people’s court may calculate the losses on the basis of the benchmark interest rate for loans of the same type in the same period prescribed by the People’s Bank of China and by reference to the standards for interest rates on late payment penalties.

  第二十五条 出卖人没有履行或者不当履行从给付义务,致使买受人不能实现合同目的,买受人主张解除合同的,人民法院应当根据合同法第九十四条第(四)项的规定,予以支持。

  Article 25 Where the seller fails to perform or improperly performs the accessory obligation and the buyer’s purpose of the contract has been frustrated, if the buyer claims contract rescission, the people’s court shall support such a claim according to the provisions of item (4) of Article 94 of the Contract Law.

  第二十六条 买卖合同因违约而解除后,守约方主张继续适用违约金条款的,人民法院应予支持;但约定的违约金过分高于造成的损失的,人民法院可以参照合同法第一百一十四条第二款的规定处理。

  Article 26 After a sales contract is rescinded due to breach of contract, where the non-breaching party claims that the liquidated damages clause continues to apply, the people’s court shall support such claims; however, where the liquidated damages agreed upon are excessively higher than the losses caused, the people’s court may handle the matter according to the provisions of paragraph 2 of Article 114 of the Contract Law.

  第二十七条 买卖合同当事人一方以对方违约为由主张支付违约金,对方以合同不成立、合同未生效、合同无效或者不构成违约等为由进行免责抗辩而未主张调整过高的违约金的,人民法院应当就法院若不支持免责抗辩,当事人是否需要主张调整违约金进行释明。

  一审法院认为免责抗辩成立且未予释明,二审法院认为应当判决支付违约金的,可以直接释明并改判。

  Article 27 Where one party to a sales contract claims the payment of liquidated damages on the ground that the other party breached the contract, and the other party raises a defense of exemption from liability on the ground that a contract was not formed, did not take effect, is void or there was no breach, and the same party fails to claim an adjustment to excessively high liquidated damages, the people’s court, if the court does not support the defense of exemption from liability, shall provide explanations on whether the parties need to claim adjustment to liquidated damages.

  Where the court of first instance holds that the defense of exemption from liability is established and does not provide an explanation, if the court of second instance holds that liquidated damages are to be paid, the court of second instance may directly provide an explanation and amend the judgment.

  第二十八条 买卖合同约定的定金不足以弥补一方违约造成的损失,对方请求赔偿超过定金部分的损失的,人民法院可以并处,但定金和损失赔偿的数额总和不应高于因违约造成的损失。

  Article 28 Where liquidated damages agreed upon in a sales contract are insufficient to compensate one party’s losses due to the breach of contract by the other party, and the compensation requested by the party exceeds the liquidated damages, the people’s court may handle the matters concurrently; however, the total amount of the liquidated damages and the compensation for losses may not be greater than the losses caused by the breach of contract.

  第二十九条 买卖合同当事人一方违约造成对方损失,对方主张赔偿可得利益损失的,人民法院应当根据当事人的主张,依据合同法第一百一十三条、第一百一十九条、本解释第三十条、第三十一条等规定进行认定。

  Article 29 Where one party to a sales contract causes losses to the other party due to a breach of contract and the latter claims compensation for losses to realizable interests, the people’s court shall determine the losses according to the party’s claim and pursuant to Articles 113 and 119 of the Contract Law and Articles 30 and 31 of this Interpretation.

  第三十条 买卖合同当事人一方违约造成对方损失,对方对损失的发生也有过错,违约方主张扣减相应的损失赔偿额的,人民法院应予支持。

  Article 30 Where one party to a sales contract causes losses to the other party due to a breach of contract and the latter is also at fault for the occurrence of such losses, if the breaching party claims a reduction to the corresponding amount of compensation for losses, the people’s court shall support such claims.

  第三十一条 买卖合同当事人一方因对方违约而获有利益,违约方主张从损失赔偿额中扣除该部分利益的,人民法院应予支持。

  Article 31 Where one party to a sales contract obtains benefits due to the breach of contract by the other party, if the latter makes claim for deduction of such benefits from the amount of compensation for losses, the people’s court shall support such claims.

  第三十二条 合同约定减轻或者免除出卖人对标的物的瑕疵担保责任,但出卖人故意或者因重大过失不告知买受人标的物的瑕疵,出卖人主张依约减轻或者免除瑕疵担保责任的,人民法院不予支持。

  Article 32 Where, according to contractual provisions, the seller’s guarantee liability for the defects of the subject matter is reduced or exempted, but the seller fails to inform the buyer of such defects by intentional conduct or gross negligence, if the seller claims a reduction or exemption to the guarantee liability for defects according to the contractual provisions, the people’s court shall not support such claims.

  第三十三条 买受人在缔约时知道或者应当知道标的物质量存在瑕疵,主张出卖人承担瑕疵担保责任的,人民法院不予支持,但买受人在缔约时不知道该瑕疵会导致标的物的基本效用显著降低的除外。

  Article 33 Where the buyer knows or should have known of quality defects in the subject matter at the time of the conclusion of the contract and claims that the seller is to assume guarantee liability for such defects, the people’s court shall not support such claims, unless the buyer did not know that such defects would cause a clear reduction in the basic utility of the subject matter at the time of the conclusion of the contract.

  五、 所有权保留V. Retention of Ownership

  第三十四条 买卖合同当事人主张合同法第一百三十四条关于标的物所有权保留的规定适用于不动产的,人民法院不予支持。

  Article 34 Where a party to a sales contract claims that the provisions on the retention of ownership of the subject matter in Article 134 of the Contract Law apply to real estate, the people’s court shall not support such claims.

  第三十五条 当事人约定所有权保留,在标的物所有权转移前,买受人有下列情形之一,对出卖人造成损害,出卖人主张取回标的物的,人民法院应予支持:

  (一)未按约定支付价款的;

  (二)未按约定完成特定条件的;

  (三)将标的物出卖、出质或者作出其他不当处分的。

  取回的标的物价值显著减少,出卖人要求买受人赔偿损失的,人民法院应予支持。

  Article 35 Where the parties agree upon the retention of ownership, if before the ownership of the subject matter is transferred, the buyer falls under any of the following circumstances and causes damage to the seller, and the seller claims the recovery of the subject matter, the people’s court shall support such claims:

  (1) fails to make payment as agreed;

  (2) fails to fulfill the specific conditions as agreed; or

  (3) sells, pledges or conducts any other improper disposal of the subject matter.

  Where the value of the recovered subject matter is markedly reduced, and the seller demands that the buyer compensate for losses, the people’s court shall support such demands.

  第三十六条 买受人已经支付标的物总价款的百分之七十五以上,出卖人主张取回标的物的,人民法院不予支持。

  在本解释第三十五条第一款第(三)项情形下,第三人依据物权法第一百零六条的规定已经善意取得标的物所有权或者其他物权,出卖人主张取回标的物的,人民法院不予支持。

  Article 36 Where the buyer has paid 75% or more of the total price of the subject matter, and the seller claims the recovery of the subject matter, the people’s court shall not support such claims.

  Under the circumstances as prescribed in item (3) of paragraph 1 of Article 35 of this Interpretation, where a third party has acquired in good faith the ownership of the subject matter or other property rights according to Article 106 of the Property Law, and the seller claims the recovery of the subject matter, the people’s court shall not support such claims.

  第三十七条 出卖人取回标的物后,买受人在双方约定的或者出卖人指定的回赎期间内,消除出卖人取回标的物的事由,主张回赎标的物的,人民法院应予支持。

  买受人在回赎期间内没有回赎标的物的,出卖人可以另行出卖标的物。

  出卖人另行出卖标的物的,出卖所得价款依次扣除取回和保管费用、再交易费用、利息、未清偿的价金后仍有剩余的,应返还原买受人;如有不足,出卖人要求原买受人清偿的,人民法院应予支持,但原买受人有证据证明出卖人另行出卖的价格明显低于市场价格的除外。

  Article 37 After the subject matter is recovered by the seller, where the buyer eliminates the grounds for the recovery of the subject matter by the seller within the redemption period agreed upon by both parties or designated by the seller, and the buyer claims redemption of the subject matter, the people’s court shall support such claims.

  Where the buyer fails to redeem the subject matter within the redemption period, the seller may sell the subject matter.

  Where the seller sells the subject matter, if there is a remainder in the proceeds derived from the sale after the expenses regarding the return, custody, re-sale, interest, and unliquidated price are deducted successively, the remainder shall be returned to the original buyer; if the proceeds derived from the sale is insufficient, where the seller demands that the original buyer pay off the outstanding amount, the people’s court shall support such requests, except where the original buyer has evidence to prove that the seller’s selling price was clearly lower than the market price.

  六、 特种买卖VI. Special Sales

  第三十八条 合同法第一百六十七条第一款规定的“分期付款”,系指买受人将应付的总价款在一定期间内至少分三次向出卖人支付。

  分期付款买卖合同的约定违反合同法第一百六十七条第一款的规定,损害买受人利益,买受人主张该约定无效的,人民法院应予支持。

  Article 38 The term “installment payment” as prescribed in paragraph 1 of Article 167 of the Contract Law means that the buyer pays the total price payable to the seller in at least three payments within a prescribed time limit.

  Where an agreement on installment payment in a sales contract violates the provisions of paragraph 1 of Article 167 of the Contract Law and damages the interests of the buyer, if the buyer claims that such an agreement is void, the people’s court shall support such claims.

  第三十九条 分期付款买卖合同约定出卖人在解除合同时可以扣留已受领价金,出卖人扣留的金额超过标的物使用费以及标的物受损赔偿额,买受人请求返还超过部分的,人民法院应予支持。

  当事人对标的物的使用费没有约定的,人民法院可以参照当地同类标的物的租金标准确定。

  Article 39 Where the seller, in an agreement on installment payment in a sales contract, may retain payment already received when the contract is rescinded, if the amount retained by the seller exceeds fees for use of the subject matter and compensation for damages to the subject matter, and the buyer requests the return of the excess amount, the people’s court shall support such requests.

  Where fees for use of the subject matter are not agreed upon by the parties, the people’s court may determine such fees by reference to the local standards for the rental of like subject matter.

  第四十条 合同约定的样品质量与文字说明不一致且发生纠纷时当事人不能达成合意,样品封存后外观和内在品质没有发生变化的,人民法院应当以样品为准;外观和内在品质发生变化,或者当事人对是否发生变化有争议而又无法查明的,人民法院应当以文字说明为准。

  Article 40 Where the quality of a sample as agreed upon in a contract is inconsistent with written descriptions and the parties fail to reach consensus when a dispute arises, if there are no changes to the external appearance and the internal qualities of the sample after being sealed, the sample shall be the standard used by the people’s court; if there are changes to external appearance and internal qualities, or the parties have disputes over whether there are changes but there is no way to ascertain any changes, the written descriptions shall be the standard used by the people’s court.

  第四十一条 试用买卖的买受人在试用期内已经支付一部分价款的,人民法院应当认定买受人同意购买,但合同另有约定的除外。

  在试用期内,买受人对标的物实施了出卖、出租、设定担保物权等非试用行为的,人民法院应当认定买受人同意购买。

  Article 41 In a sale with trial period, where the buyer has paid a portion of the price within the trial period, the people’s court shall determine that the buyer consented to the purchase, except where it is otherwise agreed to in the contract.

  Within the trial period, where the buyer engages in conduct which is non trial, such as selling, renting, and setting a security interest on the subject matter, the people’s court shall determine that the buyer has consented to the purchase.

  第四十二条 买卖合同存在下列约定内容之一的,不属于试用买卖。买受人主张属于试用买卖的,人民法院不予支持:

  (一)约定标的物经过试用或者检验符合一定要求时,买受人应当购买标的物;

  (二)约定第三人经试验对标的物认可时,买受人应当购买标的物;

  (三)约定买受人在一定期间内可以调换标的物;

  (四)约定买受人在一定期间内可以退还标的物。

  Article 42 Where a sales contract has agreements with any of the following content, it is not a sale with trial period. Where the buyer claims that it is a sale by trial, the people’s court shall not support such claims.

  (1) it is agreed that when the subject matter satisfies certain requirements upon trial or inspection, the buyer shall purchase the subject matter;

  (2) where it is agreed that when a third party approves the subject matter upon testing, the buyer shall purchase the subject matter;

  (3) where it is agreed that the buyer may exchange the subject matter within a prescribed time limit; or

  (4) where it is agreed that the buyer may return the subject matter within a prescribed time limit.

  第四十三条 试用买卖的当事人没有约定使用费或者约定不明确,出卖人主张买受人支付使用费的,人民法院不予支持。

  Article 43 Where the parties to a sale by trial do not agree upon the fee for use or agreement is not clear, and the seller claims payment of a fee for the buyer’s use, the people’s court shall not support such claims.

  七、 其他问题VIII. Other Issues

  第四十四条 出卖人履行交付义务后诉请买受人支付价款,买受人以出卖人违约在先为由提出异议的,人民法院应当按照下列情况分别处理:

  (一)买受人拒绝支付违约金、拒绝赔偿损失或者主张出卖人应当采取减少价款等补救措施的,属于提出抗辩;

  (二)买受人主张出卖人应支付违约金、赔偿损失或者要求解除合同的,应当提起反诉。

  Article 44 Where, after performing delivery obligations, the seller claims payment from the buyer, and the buyer raises an objection on the ground that the seller first breached the contract, the people’s court shall handle the matter differently according to the following circumstances:

  (1) where the buyer refuses to pay liquidated damages and compensate for losses, or claims that the seller take remedial measures such as a price reduction, it is deemed that the buyer raised a defense; or

  (2) where the buyer claims that the seller pay liquidated damages and compensate for losses, or requests the rescission of the contract, the buyer shall raise a counterclaim.

  第四十五条 法律或者行政法规对债权转让、股权转让等权利转让合同有规定的,依照其规定;没有规定的,人民法院可以根据合同法第一百二十四条和第一百七十四条的规定,参照适用买卖合同的有关规定。

  权利转让或者其他有偿合同参照适用买卖合同的有关规定的,人民法院应当首先引用合同法第一百七十四条的规定,再引用买卖合同的有关规定。

  Article 45 Where there are provisions in laws or administrative regulations regarding contracts for the transfer of rights, such as the transfer of creditor’s rights or equity, such provisions shall prevail; where there are no such provisions, the people’s court may, according to the provisions of Articles 124 and 174 of the Contract Law, refer to and apply the relevant provisions of the sales contract.

  Where contracts for the transfer of rights or other non-gratuitous contracts refer to and apply the relevant provisions of a sales contract, the people’s court shall first cite the provisions of Article 174 of the Contract Law and then cite the relevant provisions of the sales contract.

  第四十六条 本解释施行前本院发布的有关购销合同、销售合同等有偿转移标的物所有权的合同的规定,与本解释抵触的,自本解释施行之日起不再适用。

  本解释施行后尚未终审的买卖合同纠纷案件,适用本解释;本解释施行前已经终审,当事人申请再审或者按照审判监督程序决定再审的,不适用本解释。

  Article 46 Where provisions on contracts regarding the non-gratuitous transfer of the ownership of subject matter, such as purchase and sales contracts and sales contracts, issued by the Supreme People’s Court before this Interpretation enters into force conflict with this Interpretation, such provisions shall no longer apply as of the date this Interpretation enters into force.

  This Interpretation shall apply to cases of disputes over sales contracts that have not completed final appellate review after this Interpretation enters into force; where cases have completed final appellate review before this Interpretation enters into force, and a party files an application for a retrial or such cases are to be retried as determined according to the trial supervision procedures, this Interpretation shall not apply.


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