This week, the author handled a case of a dispute over a sales contract, and in the process of handling the case, the plaintiff proposed that "the defendant should repay the earliest outstanding payment in order for each payment", and the plaintiff's idea caught my attention, so I would like to share with you through this article the relevant knowledge on how to determine the order of repayment for multiple arrears to the same person.
Brief facts of the case:
Since 2008, the defendant Wang has been purchasing building materials from Liu, during which the plaintiff has distributed the goods in accordance with the defendant's orders and fulfilled the delivery obligations agreed in the contract. Later, due to the defendant's cash flow problems, the defendant failed to pay the plaintiff in a timely manner. Among them, in June 2023, the defendant paid the plaintiff 30,000 yuan for the goods, but did not specify which payment for the goods was repaid at the time of settlement. Later, the plaintiff filed a lawsuit with the court, requesting the court to order the defendant to repay the principal of the purchase price and the loss of capital occupation. Due to the huge amount of money in this case and the complexity of the bills involved in the case, the plaintiff applied for an audit, and during the audit process, the parties had ambiguity about one of the repayments in June 2023, the plaintiff believed that the defendant had repaid the arrears in 2019, while the defendant believed that the payment for the goods in 2019 had been settled, and its repayment in June 2023 repaid the arrears in 2021.
Related Knowledge:
According to Article 560 of the Civil Code of the People's Republic of China, "if the debtor bears several debts of the same type to the same creditor, and the debtor's payment is insufficient to pay off all the debts, the debtor shall designate the debtor to perform the debts at the time of repayment, unless otherwise agreed by the parties." If the debtor fails to designate it, it shall give priority to the performance of the debts that have matured; If several debts are due, priority shall be given to the performance of the debts that lack guarantee to the creditor or have the least guarantee; if there is no guarantee or the guarantee is equal, priority shall be given to the performance of the debtor's heavier debts; where the burden is the same, it shall be performed in the order in which the debts are due; If the maturity time is the same, it shall be performed in accordance with the proportion of the debt. That is, the order of debt offsetting is the agreed offsetting first, the designated offsetting is secondary, and finally the statutory offset.
In addition, the Shanghai Maritime Court also held that the repealed Interpretation (II) of the Supreme People's Court on Several Issues Concerning the Application of the Contract Law of the People's Republic of China had provided for two methods, "agreed set-off" and "statutory set-off", but there was no legal provision of "designated set-off", while the Civil Code added a new method of "designated set-off", that is, when the debtor pays off, it may express its intention to the creditor and instruct it to pay off the debt to be offset.
In this case, although there was no agreement between the plaintiff and the defendant to set off, the defendant's intention as the debtor to designate the debt to be performed at the time of repayment was unclear, and it did not belong to the situation of designating the offsetting "at the time of repayment" as stipulated in the law. After the plaintiff filed a lawsuit, the defendant argued that "the payment for the goods in 2019 has been settled, and its repayment in June 2023 is the repayment of the payment owed in 2021".This needs to wait for the audit results and the trial, according to the reconciliation between the plaintiff and the defendant to confirm whether the payment for 2019 has been settled, and if not, the debts that have matured should be given priority, that is, the debts in 2019 should be prioritized.
Relevant Laws:
Article 560 of the Civil Code of the People's Republic of China: If the debtor bears several debts of the same type to the same creditor, and the debtor's payment is insufficient to pay off all the debts, the debtor shall designate the debtor to perform the debts at the time of repayment, unless otherwise agreed by the parties.
If the debtor fails to designate it, it shall give priority to the performance of the debts that have matured; If several debts are due, priority shall be given to the performance of the debts that lack guarantee to the creditor or have the least guarantee; if there is no guarantee or the guarantee is equal, priority shall be given to the performance of the debtor's heavier debts; where the burden is the same, it shall be performed in the order in which the debts are due; If the maturity time is the same, it shall be performed in accordance with the proportion of the debt.
Article 561 of the Civil Code of the People's Republic of China: The debtor shall, in addition to the performance of the principal debt, also pay interest and expenses related to the realization of the creditor's rights, and if the payment is insufficient to pay off all debts, unless otherwise agreed by the parties, it shall be performed in the following order:
1) Expenses related to the realization of creditor's rights;
b) Interest;c) Principal debt.