每日一练F4（CHN） 答案回复可见
<p>10 Dongfang Import & Export Co (Dongfang Co) and Lidar Steel Company (Steel Co) entered into a cooperation contract.<br/>According to the contract Dongfang Co was responsible for the importation of 10,000 metric ton (M/T) of iron ore and<br/>exportation of pig iron 6,000 M/T, while Steel Co was responsible for the processing of iron ore into pig iron; Steel Co<br/>was also under the obligation to complete the processing within 10 days upon the arrival of iron ore and then carry<br/>the pig iron to Tianjin port for export by Dongfang Co.<br/>On 10 March 2008 the first shipment of 5,000 M/T iron ore arrived at the designated port and was promptly carried<br/>to the premises of Steel Co for processing.<br/>10 days later the second shipment of 5,000 M/T arrived at the Chinese port. However Dongfang Co found that several<br/>bank accounts of Steel Co were frozen by the order of the court in a dispute with a third party. Therefore, it<br/>immediately despatched a written memo to Steel Co, stating that it would detain the second shipment of iron ore until<br/>Steel Co delivered the processed pig iron.<br/>Upon the receipt of the notice, Steel Co sent back a fax to express its sincere regret for its delay to deliver pig iron.<br/>Steel Co emphasised, however, that it suffered from insufficient funds to buy coke for the processing. It promised to<br/>make efforts to deal with this problem, but failed to specify any concrete measures to be taken or give the necessary<br/>security for the performance of the contractual obligation. Steel Co also urged that Dongfang Co deliver the remaining<br/>5,000 M/T of iron ore.<br/>Considering the date for the shipment of pig iron was approaching but Steel Co did not deliver any processed pig iron,<br/>Dongfang Co declared the dissolution of the cooperation contract and sold the remaining 5,000 M/T of iron ore to a<br/>third party. Under such circumstances Steel Co brought an action against Dongfang Co for damages on the ground<br/>that Dongfang refused to deliver the second shipment of 5,000 M/T iron ore for processing.<br/>Required:<br/>Answer the following questions in accordance with the relevant provisions of the Contract Law of China, and give<br/>your reasons for your answer:<br/>(a) State whether Dongfang Co was entitled to detain the remaining 5,000 M/T of iron ore; (6 marks)<br/>(b) State whether Dongfang Co was entitled to dissolve the cooperation contract and sell the remaining iron ore<br/>to a third party; and (3 marks)<br/>(c) State whether Steel Co’s claim should be supported by the court. (1 mark)<br/>(10 marks)</p><p>10 This question requires candidates to deal with the legal issue of the demur right of advance performance under the Contract Law<br/>of China.<br/>(a) (i) Based on the facts in the question Dongfang Co was entitled to detain the remaining 5,000 M/T of iron ore. In<br/>accordance with Article 68 of the Contract Law, a party who shall perform first may suspend performance when there<br/>is evidence proving that the other party is under the circumstances as set forth in that Article. According to the<br/>cooperation contract Dongfang Co was to perform its contractual obligation first to deliver the second shipment of<br/>5,000 M/T iron ore to Steel Co. Steel Co, however, did not carry the processed pig iron because it was short of the<br/>necessary funds to buy coke. This fact indicated that Steel Co’s capacity for performance was deteriorating. Under the<br/>provision of the Contract Law, Dongfang Co might suspend its performance.<br/>(ii) In accordance with Article 69 of the Contract Law, the party who suspends performance shall notify the other party in<br/>time and resume performance when the other party provides an appropriate guarantee. Dongfang Co did give a written<br/>memo (a form of written notice) to Steel Co. Therefore, Dongfang Co complied with the statutory procedures to support<br/>its demur right of advance performance.<br/>(b) In accordance with Article 69 of the Contract Law, after the suspension of performance, if the other party neither recovers<br/>capacity for performance nor provides an appropriate guarantee within a reasonable time, the party who suspends<br/>performance may rescind the contract. It was clearly that Steel Co neither resumed the capacity for performing its obligation<br/>to carry the pig iron to Dongfang Co, nor provided an appropriate guarantee within a reasonable time. Therefore, Dongfang<br/>Co was entitled to dissolve the cooperation contract and to sell the remaining iron ore to any third party.<br/>(c) Based on the above-mentioned provisions of law and facts, Steel Co was a party who broke the cooperation contract.<br/>Dongfang Co was entitled to suspend performance and dissolve the contract. Hence Steel Co’s claim against Dongfang Co<br/>should not be supported by the court.</p> tks yvffy 见识一下 <p>Y</p><p>Y</p>
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