The hairdresser has changed the owner, and if you continue to use the card, you have to pay again?

Under the temptation of discounts and discounts from merchants, consumers often choose to recharge products and services in advance and pay fees in advance. After recharging, merchants withdraw their stores and run away, promise service standards to be lowered, forced bundling consumption and other routine behaviors occur from time to time, how should consumers protect their rights? Let's understand the relevant legal issues that need to be paid attention to when "prepaid" consumption through a service contract dispute case.

Brief facts of the case

On September 10, 2022, Xiao Chen applied for a recharge membership in a hairdresser and stored 1,000 yuan through WeChat transfer. On February 23, 2023, Xiao Chen went to a hairdresser for a haircut again, but was told that the barbershop had changed owners, and the original balance in the membership card could not be used as before, nor could it be refunded, and the remaining amount could only be deducted by half of the consumption, and the other half still needed Xiao Chen to pay in cash.

Xiao Chen found it difficult to accept the barbershop's statement, so she communicated with the current operator of the hairdresser, and when the communication failed, she sued the other party to the Huaiyin District Court of Jinan City, demanding that the hairdresser refund the balance of 629 yuan in her stored value card.

Heard by the courts

After examination, the court held that, according to the <中华人民共和国民事诉讼法>first paragraph of Article 59 of the Interpretation of the Supreme People's Court on Application, "in a lawsuit, the business operator registered on the business license shall be the party to the litigation. If there is a trade name, the trade name registered on the business license shall be the party, but the basic information of the business operator shall be indicated at the same time. A hairdresser, as an individual industrial and commercial household that has gone through industrial and commercial registration in accordance with the law, has the qualifications to be the subject of litigation.

Based on Xiao Chen's statement and the evidence submitted, it can be determined that although the two parties did not sign a written agreement, Xiao Chen applied for the membership card of the hairdresser and stored the value, which in fact formed a service contract relationship with the barbershop, and the two parties to the contract were Xiao Chen and the hairdresser, not the person in charge of the business, and the hairdresser should continue to provide hairdressing-related services to Xiao Chen as agreed. A service contract refers to a type of contract in which both parties agree that one party shall complete a certain service behavior or objectively specific service activity according to the requirements of the other party, and the other party shall pay the service remuneration. After the contract is concluded, if the time, method, price, address and other contents of the contract are changed without reaching a consensus and obtaining consent from the other party, the change of the contract content is invalid, and the parties shall perform in strict accordance with the original agreement, otherwise they will bear the liability for breach of contract. Whether or not the actual operator is changed cannot affect Xiao Chen's exercise of his rights and interests as a stored value member, and in this case, the hairdresser did not raise the defense that the registered operator was inconsistent with the actual operator. The hairdresser's refusal to allow Xiao Chen to continue to use the balance in the card is a unilateral change in the performance of the service contract by the hairdresser, which violates the contract agreement at the time of the initial value storage.

Paragraphs 1 and 2 of Article 566 of the Civil Code of the People's Republic of China stipulate that: "After the contract is terminated, if it has not been performed, the performance shall be terminated; If the contract is terminated due to breach of contract, the person with the right to terminate may request the breaching party to bear the liability for breach of contract, unless otherwise agreed by the parties. "In this case, a hairdresser and Xiao Chen have established a service contract relationship, and the hairdresser should fully perform its obligations as agreed during the performance of the contract, but the hairdresser changed the operator and the way of using the stored value card during the performance of the contract, and was unable to provide services to Xiao Chen as agreed, which is a major change in the service contract and constitutes a fundamental breach of contract.

A hairdresser's failure to appear in court to participate in the litigation and to submit a written defense is deemed to have waived its right to reply. In the end, the Huaiyin Court supported Xiao Chen's claim for the hairdresser to return the recharge amount of 629 yuan.

What the judge said

(1) What is prepaid consumption?

Prepaid consumption refers to a consumption mode in which consumers and business operators agree that consumers pay funds in advance as prepayment, and after obtaining a certain status (usually a member) granted by the business operator, consumers have the right to obtain goods or receive services. In order to lock in a certain scale of fixed consumer groups for a long time and recover the initial investment as soon as possible, many merchants are trying to promote this consumption model, and attract consumers with ultra-low discounts according to the level of the prepaid amount. However, this consumption model bears a higher risk of contract performance because consumers need to pay the consideration in advance, and the payment amount is often higher, and the consumption behavior is "bundled" for a long time.

(2) What are the relevant laws and regulations currently in force regarding prepaid consumption cards?

Prepaid cards are actually a contractual relationship established between consumers and operators, whether it is a service contract or a sales contract, they are bound by the Civil Code of the People's Republic of China, especially the relevant provisions of the contract part, as well as the Law of the People's Republic of China on the Protection of Consumer Rights and Interests, which is also a powerful "weapon" for consumers to protect their rights. In 2012, the Ministry of Commerce's Measures for the Administration of Single-Purpose Commercial Prepaid Cards stipulates that the issuer of prepaid cards must meet the conditions of registration and other conditions, and some provinces have also promulgated corresponding measures for the administration of prepaid cards and guidelines for prepaid contracts.

(3) What is the difference between consumer disputes and general civil disputes?

In the face of the many routines of merchants to apply for cards, consumers also frequently pay for their passionate consumption. In recent years, prepaid consumption is still a high incidence of rights protection, and there is consumption, which may lead to disputes. Although consumer disputes are civil disputes in nature, they are somewhat different from general civil disputes. First of all, compared with business operators, consumers as individuals cannot be in a completely equal position in the process of transaction or in the process of dispute resolution, and consumers are often the weaker party; secondly, from a general point of view, the scale of a single consumer transaction is generally small, and if the infringement of consumers is measured purely by money, some consumers will feel that there is a gap with the "expectation" in their hearts. Moreover, some of the parties to the lawsuit are difficult to identify, some do not retain evidence when consuming, and the evidence is very irregular, and some are in trouble due to difficulties in determining liability, resulting in a long period of rights protection, which are all common problems in prepaid consumer dispute litigation.

Judge reminds

In the process of consumption, consumers can safeguard their legitimate rights and interests from the following aspects. First of all, it is prevention in advance, and the simplest principle is to try to choose regular merchants or institutions, not greedy for cheap, not impulsive consumption; secondly, we must calmly treat the propaganda and commitment of the business, not believe the verbal promise of the business, fully read and understand the specific content, and ask the merchant to explain and explain before deciding whether to buy, and the recharge limit should not be too high; in addition, when applying for a prepaid card, we must properly keep the evidence such as consumption and transaction vouchers for later rights protection.

As a business, if you make adjustments to your business premises or business items, especially when it comes to prepaid consumption, such as the hairdresser in this case, other such as gyms, beauty institutions, etc., you must notify every consumer in advance, do a good job in dealing with the aftermath, and cannot "walk away". In addition, it should also strictly regulate the behavior of storing value in the card in strict accordance with the Measures for the Administration of Single-Purpose Commercial Prepaid Cards (Trial) of the Ministry of Commerce, otherwise it may be suspected of administrative violations or even the criminal act of illegally absorbing deposits from the public.

Source: Shandong High Law