Right and wrong of decoration contract

2022-07-22
  • Detail

On July 5, 2011, Ms. Meng entrusted a decoration company in the city to decorate her new house, with a total decoration price of 60000 yuan. Before signing the decoration contract, the decoration company orally promised to measure the room for free, design for free, budget for free, quality inspection for free, and give Ms. Meng's basin and other decoration materials as gifts. Based on her trust in the decoration company, Ms. Meng didn't think much and immediately signed the contract and paid an advance of 20000 yuan

but on the second day after signing the contract, Ms. Meng found that the attitude of the decoration company was in great contrast, and the original commitments were not fulfilled. At this time, Ms. Meng looked through the contract and found that the terms of the contract did not agree on the above matters at all, and then Ms. Meng asked the decoration company to refund. The decoration company asked Ms. Meng to bear 18% of the total contract amount as liquidated damages in accordance with the contract on the grounds of early termination. Unable to negotiate, Ms. Meng took the decoration company to court and asked for the refund of the advance payment

during the court trial, the decoration company offered a refund, but asked Ms. Meng to pay a penalty of 10800 yuan according to the contract

if both parties hold their own opinions, does Ms. Meng have the right to ask the decoration company for a full refund? Can the decoration company require Ms. Meng to pay 18% liquidated damages

[lawyer's point of view]

the failure of the decoration company to fulfill its commitments by Yan Binbin, a lawyer from Shanghai Dingli law firm, is the main reason for Ms. Meng's termination. However, because it was only an oral commitment and was not written into the contract, Ms. Meng could not provide evidence that the decoration company had breached the contract first, and the consequences of failing to provide evidence should be borne by herself. Therefore, Ms. Meng's request has the risks of no agreement in the contract and failure to provide evidence

according to the provisions of the contract law, contracts signed according to law are protected by law. The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the breach. If the agreed liquidated damages are too high than the losses caused, the parties may request the people's court to reduce them appropriately. Ms. Meng terminated the contract in advance and should have paid the decoration company liquidated damages in accordance with the contract, but because the contract was not actually performed, the decoration company did not suffer much loss, and the liquidated damages of 18% was too high. Ms. Meng can request the court to reduce it

however, the request of the decoration company cannot be supported in this case, because its claim that Ms. Meng should pay liquidated damages did not raise a counterclaim request within the time limit for adducing evidence. So what is counterclaim and how should it be brought? Counterclaim refers to the independent counterclaim that the defendant of this lawsuit, with the plaintiff of this lawsuit as the defendant, puts forward to the court to be sued in a civil procedure (called this lawsuit in the procedural law) that has begun. If a party files a counterclaim, it shall file it before the expiration of the time limit for adducing evidence. The time limit for adducing evidence may be agreed by the parties through consultation or designated by the people's court. The designated time limit shall not be less than 30 days, counting from the next day after the parties receive the notice of case acceptance and the notice of response

therefore, the final judgment of the court required the decoration company to return Ms. Meng's decoration money in full, and its claim for liquidated damages was not supported, and a separate lawsuit should be filed

[lawyer's reminder]

for contracts, consumers should polish their eyes and suffer losses if they are careless; Operators should be honest and trustworthy, opportunistic and have a bad reputation

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