Contract review: mind the contracting party.
This is the second time I compose an article on such a subject, because I recognize that to check parties who are literally involved in a contract is of the most importance in reviewing a contract, whereas most contractors tend to ignore it, even for the legal occupant. Continue reading
To who it may concern:
A law court in Tianjin of China is announcing that it’s time for some of the victims in a scam case to claim for their compensation immediately.
Lawyer Jingzhan Wang, trusted by Alhamd Traders company from Pakistan, filed a criminal lawsuit case of international fraud wherein Alhamd Traders company is one of the pleaders. The case has lasted more than two years and The judgment is finally concluded by Nankai court of Tianjin.
Case Playback:
On Aug.14th,2017, the defendant, Yicai company based in Tianjin, placed a sales contract about 5000kg HPMC with Alhamd Traders of Pakistan via online. On Aug.28th, 2017, the client (Alhamd Traders) remitted the prepaid amount to Yicai company, but thereafter Yicai company cut off its communication with the Pakistan company. Without any hope to continue the contract, the Pakistan company come to Tianjin, looking for a famous lawyer to represent them to save the loss, and finally came to Lawyer Jingzhan-Wang’s office to entrust him to deal with the case.The lawyer found that the company’s location is inconsistent with it’s register address, the signature on the contract seemed to be fake, the suspect even refused to pick up a call from the Pakistan company, and etc. All of them indicated that this case is not a plain civil lawsuit. Then the Pakistan company, with the help of the lawyer, collected evidence and reported to Bonded Zone branch of Tianjin Security bureau. After completion of the investigation of this case, it’s moved to the People’s Procuratorate of Nankai District who made a public prosecution against the suspect on June 29th,2018. Recently the court finished the trial of this case, adopting some of the reasonable suggestions put out by the Lawyers, decided that the defendant’s deposit and other property should be confiscated and refunded to the victims.
The proofs we provided:
The proforma invoice by Tianjin Yicai Trading company,; the certificate of remittance by the Pakistan company; Identification and Classification Report for Air Transport of Goods by Beijing DGM Air Transport Technology company, the Wechat records and email records between two parties. Qutotation for hydroxypropyl methylcellulose from Tianjin Yicai Company.
Mr. Jingzhan Wang, as the attorney of Alhamd Traders company, proposed its opinion:
First of all, the defendant has the criminal deliberation. As per the court hearing and the interrogation by the police, the defendant’s purpose to set up the company is to cheat the company abroad. The statement of other common defendant shows that Yicai company usually didn’t send the goods or sent some disqualified goods or inadequate goods after receiving the victim’s payment, which verified the defendant’s statement that setting up company is not to make profit and doing normal business, but to cheat the victims’ money. According to the prosecutor’s charge, the proofs and verification in the court hearing, the defendant had scammed the victims from more than 8 countries, only in several months from May,2017 to Aug,2017, by cutting off the communication and refusing to execute the contract, which also verified that the Yicai company is not to have a normal business but for deceive the people overseas.
Objectively the defendant had the act of cheating. The defendant didn’t have the proper resource of goods when placing the contract, the Yicai company’s legal representative’s signature on the contract was not true, the defendant didn’t organize the goods positively, but ran away from its obligations under the contract. All of the above act by the defendant proved that the defendant was scamming .
Lastly, the several defendants were doing common crime, thus they should be jointly responsible for the loss caused by their scam. The court should order the defendant to refund the money the defendant got from the scam.
In the end, the Nankai court adopted the reasonable opinion proposed by the Attorney, sentencing the defendant to imprisonment and dispatched the money held in custody to the victims.
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Case Review
On the 29th of April,2014, the claimant，a Canadian company, entered into a contract with the respondent, a Tianjin company. Continue reading
In international project, what may be caused if the wording for a bank guarantee is incorrect?
Introduction
In the international project, there may be much difference in aspects of geography, culture, language and legal environment. The Principals, Contractors, Sub-Contractors, Suppliers and other participants tend to obtain some surety from third party, usually the bank to secure the relevant party’s fulfillment. Bank guarantee is generally regarded as one of the most importance.
There are a variety of bank guarantees, among them are bid bond, performance bond, down payment bond, detention bond and customs bond. A little difference on how to word the documents possibly leads to a great change in its meaning and effectiveness. Hereunder I’ll take one case as an example to cast the light.”
Case Review：
A company named Power Gas Company (referred to as Party A), desirous of a professional engineering company to provide design service for its project, engaged with a well-known company named Great Designer Group (referred to as Party B). As per the agreement between them, Party B “shall provide a Performance Security in the form of “performance bond” in the amount of 5% of the Subcontract Price. And it shall be guaranteed and undertaken irrevocably and unconditionally in same currency of Subcontract Price.” When the draft form of guarantee is sent to Party B for check, Party B propose that a clause should be added that: “If the performance bond is presented to the bank for payment in case of any breach, the Contractor shall be informed at least 10 days ahead”, and Party A agreed to add this clause because they thought it’s reasonable.
It turned out that Party B failed to duly fulfill its obligations in compliance with the agreement, and Party A presented the performance bond to the bank asking for the guaranteed compensation. But the bank rejected Party A’s claims on the ground that an unconditional bank guarantee shouldn’t be furnished with any conditions and would become an conditional bank guarantee if any conditions were included.
Notes:
Construction guarantees typically take one of the two forms, namely an on-demand or call guarantee, which is unconditional, and a suretyship guarantee, which is conditional. The right of the holder and the obligations of the guarantor under these two guarantee differ:
In on-demand guarantees, the guarantor takes the first primary obligations, equivalent to an indemnity to the Employer.The guarantees operate independently of the degree of performance or non-performance of the principal contract. They are effectively the equivalent of a promissory note payable on demand. But there is any conditions taken into the guarantee, then the effect of the on-demand payment and dependence may change.
Suretyship guarantees are conditional on a particular event(or events), commonly on the satisfactory performance of the contractor. These guarantees are accessory to the principal agreement, and there can be no obligation where the principal obligation they refer to is not valid or effective.