Cover news reporter Hao Ying
Recently, more than a dozen customers in Chongqing saw the promotion of free adoption of kittens from different pet stores, saying that sesame credit above 550 can be adopted, they entered the store to select a good cat but were told that they need to buy cat food for 18 months on an app called "Tao Pet Mall" and sign an adoption contract. The party A of the contract is a company called Chongqing Hongyang Pet, according to the pet store staff, it is the company of the app platform. After the adopters brought the kitten home, there were many sick or even individual deaths, and when they carefully examined the contents of the contract, they found that if they did not buy cat food on time every month, they would have to pay a penalty of 3,000 yuan for a month overdue, and even if the cat was not there, they would continue to perform the contract.
In this regard, the pet store staff responded that the free adoption is a marketing method, and there is no deliberate sale of sick cats, and the liquidated damages are to prevent the kittens from disappearing. Professional pet doctors also believe that pet shops cannot hide the health of cats, and kittens are weakly resistant, and illness is very common.
Sun Shunfa, a lawyer at Zoda Law Firm, said that if the contract cannot indicate the true intentions of the two parties, it will affect its effectiveness, but it is more difficult to prove that the merchant constitutes fraud.
Specify the purchase of cat food
A penalty of 3,000 yuan for one month overdue
On September 23, Xiao Nian (pseudonym) told the cover news reporter that he adopted a kitten at the Dadukou Bear Child Pet Store, when the owner said that he needed a real-name authentication registration APP to help them do promotion, took his mobile phone to help operate, and then let her upload her ID card authentication, signed it, did not mention the content of the contract, and did not tell the price of cat food and cat food to buy. The cat food purchased by Xiaonian is a set meal of 250 yuan, a 2kg. She took the picture of the cat food and asked the brand's official store customer service, and learned that the cat food cost 99 yuan for 5kg.
Little year (pseudonym) cat
Platform cat food price
Ms. Xu also said that although she was told that she needed to buy cat food on the APP after adoption, she did not know to buy cat food for 18 months, nor did she know the specific price of cat food. The store said the contract was signed to ensure that the adopter would not abandon the kitten casually. "She said that there were dozens of adopted animals in the past few days, and everyone used the same contract without problems, so I was not so defensive and did not look carefully."
Among the 14 respondents, 9 did not know when signing the contract that they would need to pay a penalty of 3,000 yuan for not purchasing cat food after the deadline.
Su Su (pseudonym) noticed the liquidated damages clause in the contract during the adoption and asked the pet shop owner to explain the main content of the contract, and in the recording she provided, the shop owner said that if the cat was lost or died during the performance of the contract, the adopter could terminate the contract by providing relevant evidence to the platform.
She said that after she went back to look at the contract carefully, she found that the cat still had to buy cat food when she died, and she had to pay liquidated damages when the contract was terminated. On the third day, she sent the cat back, and the other party said that this was a contract signed with the platform, not with the pet store, they could not cancel, and the dispute lasted for half an hour.
"When I came back, I found that the purchase channel for the app to fulfill the contract was gone, but they did not confirm the termination of the contract, and I was still worried that I would be sued." She said.
Several kittens are sick
The store said it did not sell sick cats
Mr. Liu said that cat food is inherently a necessity, and even if the platform price is slightly more expensive, it can be accepted. What makes adopters decide to defend their rights is that there is a problem with the health of the kitten. "The contract has written that it can detect the case of cat plague, with that kind of test strip, 50 pieces at a time. I asked for an inspection, but the owner said that I was lucky, the cats in their store were tested that day, there was no problem, I was relieved, because the breed and quality we adopted were relatively good, and we added 500 yuan to adopt. ”
Mr. Liu told reporters that the day after the cat was brought home, the kitten began not to eat, and there were vomiting symptoms, and on the third day, he took the kitten to the hospital for examination and diagnosed cat plague. "The store said that it could be treated by taking it back, and after about a week, I was asked to pick it up, and the photo sent to me was different from the previous one." There are clauses in the contract that the cat has health problems within 7 days, and the store is allowed to change the cat, but Mr. Liu believes that what if there is a problem with the change? Therefore, he was reluctant to pick up the cat, but the contract continued to be in effect.
Mr. Liu's cat was diagnosed with cat plague
Xiao Dai told Cover News that he adopted the kitten in May this year, when it was still a paper contract, and took it home for a month later for personal reasons to keep the kitten in a friend's house. "She herself is raising a cat, so there is no such thing as not taking care of it, but the cat died after more than two months of keeping it, during which she went to the hospital twice, and brought it back the next day with a runny nose." Because he does not want to get into legal trouble, Xiao Dai is still buying cat food on a monthly basis.
Four other respondents had problems such as cat plague, diarrhea, and unworming, and two of the healthy kittens had severe ear mites when they were adopted.
On September 24, the cover news reporter consulted Dr. Xu of a pet hospital in Changsha, and he said that kittens 6 months ago were very weak in resistance and easy to get sick. Cat plague is very common, the causes of cat plague are also diverse, may be infection, may also be to clean the body to cause bacteria, even change the environment, blow air conditioning, etc. will make them sick, cat plague treatment is difficult, but timely treatment of kittens is still possible to survive.
Regarding claims raised by adopters that the merchant concealed the health of the kitten or gave the kitten a stimulant, Dr. Xu said he was unaware of the existence of the drug. "If there is such a drug, it may be that the unscrupulous pet hospital will also give the animals to eat, and suddenly it looks sick, but in fact, there is no such magic medicine." He believes that it is best to do a cat plague test before adoption, although the test strip is not 100% accurate, but it has an accuracy rate of nearly 90%, and doctors also rely on tests to diagnose.
On September 21, according to Chongqing TV, Mr. Zhou, a staff member of the Dadukou Bear Child Pet Shop, said that the cats in the store had a 7-day warranty, and if they were sick, they could provide cat replacement services and could do a cat plague check on the spot. He also said that the adoption of cats requires a certain amount of financial strength and responsibility. Unless it is proven that the cat's death was the cause of the pet store, it needs to be performed in accordance with the contract.
On September 24, Mr. Zhou was interviewed by Chongqing Television and responded again that free adoption is indeed a promotional method, but the pets in the store are healthy and willing to accept supervision. He said that the liquidated damages in the contract are to ensure that the cat has a living guarantee, and if he does not know where he is, he needs to compensate 3,000 yuan. Mr. Zhou did not respond to the question of whether there was concealment or inducement when signing the contract.
According to Tianyan' inspection, Chongqing Hongyang Pet Co., Ltd. was involved in 70 judicial cases, 97% of which were sued as plaintiffs, 81% of which were contract disputes, and the 14 civil rulings published were all rulings on the withdrawal of lawsuits by plaintiffs.
On September 24, the cover news reporter repeatedly called the Bear Child Pet Castle and Chongqing Hongyang Pet Company, but as of press time, there was no response.
Lawyer: It is difficult to prove fraud
Sun Shunfa, a lawyer at Sichuan Haoda Law Firm, said that the merchant used marketing means to sell cat food, and it was not illegal to stipulate the purchase of cat food in the adoption contract. As long as the parties are fully the subject of civil acts and are expressions of true intention, the contract is a valid contract.
However, if the other party enters into it without knowing the contents of the contract, it will affect the validity of the contract. The Civil Code stipulates that if one party fraudulently commits a civil juristic act carried out by the other party against its true intentions, the defrauded party has the right to request the people's court or arbitration institution to revoke it.
Fraud in civil law refers to the act of the perpetrator deliberately deceiving others, causing the other party to fall into a wrong judgment, and making an expression of intent based on this wrong judgment. In this pet adoption contract, it is more difficult to prove.
Lawyer Sun believes that the liquidated damages of 3,000 yuan in the contract terms are unreasonable, and if you do not purchase cat food for more than one month, it is regarded as a serious and fundamental breach. This is significantly higher than the actual loss, namely the highest price of cat food at 330 yuan. Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.
At the same time, the Pet Adoption Contract restricts the adopter from purchasing a designated cat food package at a designated merchant, restricting the right of consumers to freely choose merchants and goods, and according to the Consumer Rights and Interests Protection Law, consumers have the right to choose goods or services independently. Consumers have the right to independently choose the business operators that provide goods or services, independently choose the variety of goods or service methods, and independently decide to purchase or not to purchase any kind of goods, and to accept or not accept any service. The adopter can claim that the clause is an invalid standard clause and does not belong to the content of the contract.
For Su Su, who retained the audio evidence, she obtained a promise that the pet store staff could terminate the contract if the cat was lost or died, but because the promisee was not the party A of the contract, the promise did not take effect. If there is evidence that there is some kind of legal relationship between the pet company and the pet shop owner, such as the pet company entrusting or authorizing the pet store to sell cat food to collect the pet, the promise may be valid.
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