Shovelers look forward to it day and night
Finally put your heart on it
Kittens to take home
As a result, I became ill the next day
I went to the store to make a claim but was accused of not taking good care of the cat
......
How can a shoveler be good?
Let's take a look at the following case~
Brief facts of the case
On March 1, 2021, plaintiff Li (Party A) bought a ragdoll cat from the defendant's pet store (Party B) for 2,100 yuan and purchased 1,100 yuan of cat supplies. On the same day, the two parties signed the "Live Pet Sale and Purchase Agreement". The agreement stipulates that if the pet cat sold is found to have cat plague within 24 hours, Party A may replace a pet cat of the same price to Party B after issuing the relevant medical certificate, but the pet products will not be returned.
The agreement states: Because the pet is a living special commodity, there are human factors or hidden unexpected factors that cannot be predicted by both parties, so if the pet cat is diagnosed with cat plague 24 hours after the sale, Party B does not assume any responsibility.
Li paid the fee and took the kitten home. The next day, the kitten began to thin, Li immediately sent him to the pet hospital for treatment and cat plague detection, the test results showed that the kitten ear canal has a disease, and no other obvious abnormalities were seen. On 3 March, kittens underwent a second cat plague test and found no abnormalities. On March 8, Li took the kitten to the pet hospital for the third time, at this time the kitten has vomiting, blood in the stool symptoms, cat plague test results show that the kitten has been infected with cat plague virus. Subsequently, Li sent the kitten back to the pet shop for treatment. On 15 March, the kitten died of illness.
After the kitten died of illness, Li asked the pet store for a full refund and compensation for the cost of pet treatment, but the negotiations between the two sides were fruitless, so Li sued the Shenzhen Longhua District People's Court.
Court hearings
The Agreement for the Sale and Purchase of Live Pets stipulates that pet stores that are diagnosed as cat plagues 24 hours after sale are not liable, and this clause was pre-formulated by the defendant for repeated use and did not negotiate with the plaintiff at the time of conclusion of the contract, so this clause is a standard clause. The incubation period of cat plague is generally 2-9 days, and the pet store, as the party providing the standard terms, unreasonably exempts and reduces its responsibility as an operator, which increases the responsibility of the buyer and restricts the main rights of the buyer, so the standard terms should be invalid.
The plaintiff purchased the kitten involved in the case as a pet, and its contractual purpose was to harvest the emotional benefits generated in the breeding process, and the premise for the realization of the purpose of the contract was that the kitten involved in the case grew up healthily, so the sale of healthy kittens was the fundamental contractual obligation of the defendant, and the defendant should bear a warranty obligation for a certain period of time for the health of the kittens involved in the case, and the warranty period should not be lower than the incubation period of cat plague. The kitten involved in the case was detected for ear canal disease on the second day after the sale, cat plague was detected on the seventh day, and died at the defendant's place eight days later, and the plaintiff's contractual purpose could not be achieved.
Therefore, the court ruled that the defendant refunded the purchase price of the cat by 2100 yuan and compensated 606 yuan for the examination and medical expenses. After the first-instance judgment was pronounced, neither party appealed, and the judgment has taken legal effect.
Judge's Statement
The so-called overlord clause mainly refers to unfair standard clauses. Specific to the field of consumer rights protection, it refers to the terms formulated in advance by the merchant in a strong position in order to facilitate repeated use, aiming to exempt or reduce its own responsibility, or to increase the responsibility of consumers, and did not negotiate with consumers when concluding the contract.
In daily life, overlord clauses come in a variety of forms, often in the form of contracts, notices, notices, etc. This requires consumers to pay more attention to the content of the contract terms provided by the merchant, and at the same time, when encountering the overlord clause, consumers must argue on the basis of reason, and do not easily give up their rights protection because they are afraid of trouble or worry about excessive costs. In the case of fruitless consultation with the merchant, it may be reported to the market supervision and management department, and when necessary, relevant evidence may be collected and preserved to file a lawsuit with the people's court.
Links to laws
Civil Code of the People's Republic of China
Article 496:Standard terms are terms that the parties have drawn up in advance for the purpose of reusing them and have not consulted with the other party at the time of conclusion of the contract.
Where standard terms are used to conclude a contract, the party providing the standard terms shall follow the principle of fairness to determine the rights and obligations between the parties, and take reasonable measures to remind the other party to pay attention to terms that have a major interest in the other party, such as exempting or mitigating its liability, and explain the terms in accordance with the requirements of the other party. If the party providing the standard terms fails to perform the obligation to prompt or explain, causing the other party to fail to pay attention to or understand the terms with which it has a major interest, the other party may claim that the terms do not become the content of the contract.
Article 497:In any of the following circumstances, the standard terms shall be invalid:
(1) Having the circumstances of invalidity provided for in Section 3 of Chapter 6 of Part I of this Law and Article 506 of this Law;
(2) The party providing the standard terms unreasonably exempts or mitigates its liability, aggravates the liability of the other party, or restricts the main rights of the other party;
(c) The party providing the standard terms excludes the other party's main rights.
Source: Shenzhen Intermediate People's Court