Article 749
During the period when the lessee is in possession of the leased property, the lessor shall not be liable for personal injury or property loss to a third party caused by the leased property.
I. Purpose of this Article
This article is about the exemption of the lessor's tort liability.
II. Evolution of the Provisions
This article is amended on the basis of Article 246 of the original Contract Law. Article 246 of the original Contract Law stipulates that: "The lessor shall not be liable for personal injury or property damage to a third party caused by the leased property during the period when the lessee is in possession of the leased property." This article derives from article 8, paragraph 1, subparagraph (b) of the International Financial Leasing Convention, which provides that "the lessor, in its capacity as lessor, shall not be liable to a third party for death, personal injury or property damage caused by the leased property." At the same time, subparagraph c of the paragraph provides: "The foregoing provisions of this paragraph do not apply to the liability of the lessor in any other capacity, such as that of the owner." ”
This article amends "personal injury or property damage" to "personal injury or property loss" in the original article 246 of the Contract Law.
Article 541 of the Civil Code Contract Edition (First Reading Draft) states: "The lessor shall not be liable if the leased property causes personal injury or property damage to a third party during the period when the lessee is in possession of the leased property." Article 541 of the Contract Part of the Civil Code (Second Reading Draft) and Article 749 of the Civil Code (Draft) are the same. On May 22, 2020, the National People's Congress amended "personal injury or property loss of a third party" to "personal injury or property loss of a third party" during deliberation. The text as adopted remained unchanged.
3. Interpretation of Provisions
This article is a provision exempting the lessor from liability for damage caused to a third party by the leased property.
Under normal circumstances, if an object causes damage to a third party, the provisions on liability for damage to the object shall be applied, and the owner, user and manager of the object shall bear the liability for compensation. According to such a rule, if the leased property causes damage to a third party, the owner, user and manager shall also be liable, and the user is the lessee. Since in the financial lease contract, the lessee has the exclusive right to use the leased object, especially the lessor purchases it according to the will of the lessee,
Delivered to the lessee for possession and use, therefore, if the leased property causes damage to a third party, whether it is personal injury or property loss, the lessor's liability is excluded, and it does not bear any responsibility for the damage. This liability shall be the responsibility of the lessee.
4. Cases
Jiangxi Jianglong Group Xinghai Automobile Transport Co., Ltd. and Gao Moumou and Ouyang Moumou Dispute over the right of recovery
Facts: On October 28, 2011, the defendants Gao XX and Ouyang XX leased the Gan C××××× truck to the plaintiff Xinghai Automobile Transport Company for transportation operations, and the two parties signed an automobile financial leasing contract, which stipulated that the plaintiff would purchase the Gan C××××× truck produced by the Futian Factory for the purpose of leasing it to the defendant according to the requirements of the defendant and the defendant's independent selection. The defendant leased the car from the plaintiff and enjoyed the right to possess, use and benefit from the car. The lease term is from October 28, 2011 to October 27, 2018, and the total rent is 200,000 yuan. Clause 3 of Article 9 of the contract stipulates that "if a traffic accident, transportation accident or accident occurs in the defendant's leased vehicle, resulting in death or injury or property damage to himself or others, all costs and liabilities shall be borne by the defendant, and the plaintiff shall not bear any liability, and the plaintiff may try its best to assist the defendant in handling the relevant matters, and the necessary expenses shall be borne by the defendant". In the event of a dispute over the contract, a lawsuit shall be filed with the Gao'an Municipal People's Court in accordance with the law.
On January 14, 2012, CALC accepted the transportation business of Hongyun Company and signed a vehicle leasing and transportation agreement with defendant Ouyang XX in the name of Hunan CALC, stipulating that defendant Ouyang XX would drive a truck No. ××××× Gan C to carry a batch of goods from a district in Guangzhou to Changsha Huanghua Airport. On January 15, 2012, Chen Mouhong, a driver jointly hired by defendants Gao and Ouyang, drove a Gan C××××× vehicle carrying goods to Huahai Petrochemical Fujian on National Highway 107, Jiangbo Village, Xiaoshui Town, Leiyang City, Hengyang City, resulting in partial damage to the transported goods. After the accident, the insurance company paid 602,374.47 yuan to the policyholder, Zhuhai Federal Pharmaceutical Co., Ltd., for the damage to the goods. The insurance company claimed the right of recourse against the carrier Hongyun Company, and reached an agreement that Hongyun Company would pay 450,000 yuan after mediation by the court. After Hongyun Company deducted the freight of 450,000 yuan that should be paid to CALC, because the defendant Gao Moumou and the defendant Ouyang Moumou were in a partnership relationship, and the two defendants and the plaintiff company were affiliated with each other, CALC filed a lawsuit with the Changsha County People's Court, and the Changsha County People's Court made the (2014) Changxian Min Chu Zi No. 174 judgment on March 31, 2014, and the first item of the judgment was the defendant Gao Moumou, Ouyang XX compensated CALC for the loss of 360,000 yuan, and the second item of the judgment was that the plaintiff Xinghai Company was jointly and severally liable for the debt, and the plaintiff was responsible for the litigation costs of 1,550 yuan, and the defendants Gao and Ouyang were responsible for 1,550 yuan. On June 13, 2014, the Intermediate People's Court of Changsha City, Hunan Province, rendered the (2014) Chang Zhong Min Er Zhong Zi No. 02718 Judgment, ruling to revoke item 2 of the Changsha County People's Court's (2014) Chang County Min Chu Zi No. 174 Judgment. On June 21, 2017, the Hunan Provincial High People's Court rendered the (2017) Xiang Min Zai No. 33 Judgment, revoking the (2014) Chang Zhong Min Er Zhong Zi No. 02718 Judgment and upholding the (2014) Chang Xian Min Chu Zi No. 174 Judgment. After the judgment took effect, the Changsha County People's Court deducted RMB 366,896.17 from the plaintiff Xinghai Company on February 1, 2018 and March 8, 2018 respectively. On April 11, 2018, the Changsha County People's Court issued a notice of enforcement case (2017) Xiang 0121 Zhi No. 2426, informing the plaintiff and the defendant that the execution of the dispute over the road cargo transportation contract between CALC and the defendants Gao XX, Ouyang XX and the plaintiff Xinghai Company had been completed. Subsequently, the plaintiff claimed compensation of 50,000 yuan for the goods on the vehicle through the vehicle insurance company, and paid the balance of 311,550 yuan. The plaintiff had repeatedly demanded the defendant's demands, but in desperation, he sued the court.
The court held that the financial lease contract signed by the plaintiff Xinghai Automobile Transport Company and the defendants Gao and Ouyang was legal and valid, and the contract stipulated that if the defendant's vehicle suffered a traffic accident or transportation accident caused to the property of others, all expenses and liability for compensation were borne by the defendants Gao and Ouyang, and the agreement was in accordance with the law and both parties should abide by it in accordance with the law. In this case, after the plaintiff Xinghai Automobile Transport Company compensated the defendants Gao and Ouyang for the compensation of 311,550 yuan in the (2017) Xiangmin Zai No. 33 judgment against Hunan Zhongfei Logistics Co., Ltd., the plaintiff had the right to recover from the defendants Gao and Ouyang. The defendant's refusal to reimburse the plaintiff for the money the plaintiff had paid on its behalf was the main cause of the dispute in this case. The plaintiff's claim is based on the law, and this court supports it. In summary, in order to safeguard the legitimate rights and interests of the parties, in accordance with Article 31 of the Guarantee Law of the People's Republic of China, Article 89 of the General Principles of the Civil Law of the People's Republic of China, and Articles 142 and 144 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows: the defendants Gao XX and Ouyang XX shall return the compensation amount of RMB 311,550 compensated by the plaintiff Jiangxi Jianglong Group Xinghai Automobile Transport Co., Ltd. within 10 days after the judgment takes effect.
5. Analysis
In a financial lease contract, although the lessor is the owner of the leased thing, the lessee has the right to occupy and use the leased thing, and actually controls the leased thing. If the leased property causes personal or property damage to a third party, the lessor has no attributable cause, so the lessee shall be liable for damages, which is confirmed in Article 749 of the Civil Code. In this case, the loss of the goods was actually damaged during the defendant's business, and although the court required the plaintiff to bear the liability for damages based on the affiliation between the plaintiff and the defendant, the ultimate responsible person should still be the defendant, so the plaintiff has the right to recover from the defendant after assuming the liability for compensation.