Legal Tips | Can it be presumed that the contract content has changed? The case is detailed in detail

Dingdang Company and Peipu Company signed the "APP Promotion Service Contract", stipulating that Dingdang Company accepts the entrustment of Peipu Company and provides marketing and promotion services for Peipu Company in accordance with the contract, and the cooperation project is Magic City APP. Later, the company carried out the promotion of small target APP projects. Due to the arrears of promotion fees, Dingdang Company sued the court, requiring Peipu Company to pay promotion fees and lawyer fees totaling more than 1.38 million yuan. After trial, the People's Court of Haidian District, Beijing, held that neither party had expressed in any oral or written way that the cooperation project had been changed from the Magic City APP to the small target APP, so the judgment rejected all the claims of Dingdang Company.

Brief facts of the case

The plaintiff claimed that it signed the "Magic City APP Promotion Service Contract" with Peipu Company, and after the contract was signed, it fulfilled its promotion obligations as agreed in the contract, and the two parties counted the promotion data by email as agreed and confirmed the reconciliation, but after repeated reminders, Peipu Company failed to pay the promotion fee as agreed, so it sued the court.

The defendant, Pep, argued that there was no genuine service contract relationship with Dingdang. It was entrusted by Pengbin to sign a magic city APP promotion service contract with Dingdang Company, but the actual payment, cooperation object and beneficiary object were all Pengbo Company. In this case, Dingdang asserted a service fee for the promotion of the "small target APP", but the two parties did not actually sign a promotion contract for the APP, and in fact there was a service relationship between Pengwei and Dingdang. The payment does not constitute an apparent agency, and the relevant payments are all derived from the transfer of Pengwei Company, which is only a payment on behalf of the company, not an acknowledgment of rights and obligations.

During the trial, Dingdang Company submitted screenshots of the email exchanges between the two parties to prove that the relevant settlement reconciliation had been confirmed by Peipu Company. However, the original carrier of the submitted email was displayed by the staff of Dingdang Company in court, showing that the subject of the email in May and June 2019 was indeed "Magic City APP", but since July 2019, the subject of the email has been changed to "Small Target APP". In addition, although the sender's email address after July 2019 is still Zhang Moumou, the email address is completely different from the designated email address suffix agreed in the contract between the two parties.

Heard by the courts

After trial, the court held that, firstly, the cooperation project agreed in the contract between the parties in this case was the Magic City APP, and the corresponding cooperation period was from April 2019 to March 2020, and it was agreed that the contact person of Pep Company was Zhang Moumou and the email address was [email protected]. The promotion fee advocated by Dingdang Company is a corresponding small target APP project, and the occurrence period is after June 2019. With regard to the promotion of the small target APP project, the two parties have neither signed a written promotion service contract, nor have they reached an agreement on the specific promotion period, settlement method, fee standard, docking contact person and contact email address. Therefore, in this case, Dingdang Company's assertion that the two parties should settle the settlement in accordance with the standards of the Magic City APP project by default obviously lacks the corresponding factual basis.

Secondly, judging from the specific content of the relevant settlement confirmation email submitted by Dingdang Company, since July 2019, the subject of the email has been changed to "Small Target APP" instead of "Magic City APP"; And confirm that although the email sender's email nickname is still named Zhang Moumou, the email address has actually been changed to [email protected], and the email address is not the contact email address of Peipu Company agreed in the "Magic City APP Promotion Service Contract" signed by both parties. Therefore, under the circumstance that the available evidence is insufficient to prove that the changed email address is the contact email designated by Peipu Company and can be used for the settlement and confirmation of the promotion expenses of the "Small Target APP", the email submitted by Dingdang Company should not be deemed to be an expression of intent made by Peipu Company and is not legally binding on Peipu Company.

Finally, with regard to the nature of Peipu's payment of the promotion fee for the Xiaoji APP in June and July 2019 according to the amount confirmed by the email, it can be determined based on the evidence submitted by Peipu that the money involved in the case was paid by Pengbo to Dingdang Company through a corporate account or the account of an employee of Pengbo Wang. Therefore, the relevant transfer of money stated by Peipu Company is only a payment on behalf of the company, not a section on the performance of the contract, which has a corresponding factual basis and should be accepted.

To sum up, Dingdang Company's claim that Peipu Company pay it a total of more than 1.38 million yuan in arrears of promotion fees, interest, and attorney fees is not based on sufficient basis and should not be supported. The court ultimately dismissed all of Dingdang's claims.

After the verdict was pronounced, neither party appealed, and the verdict is now in force.

What the judge said

In the course of the performance of the contract, there are often situations where it is impossible to exercise rights and perform obligations in accordance with the original agreement due to changes in subjective and objective factors, and at this time, the Civil Code gives the parties the right to change the contract by consensus due to the consideration of economic and efficiency factors, as well as the requirements of the spirit of the contract that has been established and effective in accordance with the law to continue to be performed. From the perspective of the principle of autonomy of will and the principle of voluntariness, the conclusion, modification and termination of a contract should be based on the principle of consensus between the two parties and made in an explicit manner, and silence should not be used as an effective way to confirm the change of the contract.

According to Article 140 of the Civil Code, silence can only be regarded as an expression of intent if there is a legal provision, an agreement between the parties, or a conformity with the transaction customs between the parties. It should be said that express and implicit, as forms of expression of intent, can be classified into the category of positive behavior, which is the norm of expression of intent. But in real life, there is also a form of expression of meaning, that is, it is neither explicit nor implicit, but pure silence, a complete inaction. Therefore, in order to protect the civil rights of the parties and avoid undue damage to the parties, the law provides that silence can only be regarded as an expression of intent when there is a legal provision, an agreement between the parties, or a transaction custom between the parties.

It should be said that the expression of intent, as the core element of civil legal acts, must be displayed in a way that can be identified and understood by others. Modification of the contract involves the adjustment of the benefits available to the parties, which will lead to significant changes in the content of rights and obligations. If it is allowed to change the performance of the contract in a silent manner, that is, only on the appearance that the other party to the contract has not raised objections to the change in the performance of the contract, that is, to directly deduce the conclusion that it accepts the change in the contract, it may lead to or trigger the imbalance of interests of the two parties, violate the purpose of the conclusion of the contract, or even seriously damage the interests of one party, which will not be conducive to maintaining the spirit of the contract and the principle of good faith, and will damage the trust and interests of the counterparty to the contract.

In this case, the parties signed a written contract for the cooperation of the Magic City APP project, and the cooperation period was from April 2019 to March 2020. The promotion fee claimed by the current plaintiff Dingdang Company is a corresponding small target APP, and the period of occurrence is after June 2019. Although the two parties subsequently communicated by email about the settlement of the promotion of the small target APP, and the nickname of the contact email address remained unchanged, it was found through court that the email suffix of the email address of the contact person of Peipu Company was no longer the email suffix of the contact person of Peipu Company as agreed in the "Magic City APP Promotion Service Contract" signed by the two parties. Therefore, under the circumstance that neither party has expressed in any oral or written way that the cooperation project has been changed from the Magic City APP to the Small Target APP, and the existing evidence is not sufficient to prove that the changed email address is the contact email designated by the Company and can be used for the settlement and confirmation of the promotion expenses of the Small Target APP, the email submitted by the Company shall not be deemed to be an expression of intent made by the Company, and shall not be regarded as the confirmation of the settlement amount by the Company.

In addition, there is a section on whether the payment behavior of Pep Company can constitute an apparent agency. According to the provisions of Article 172 of the Civil Code, if the actor does not have the power of agency, exceeds the power of agency, or after the power of agency is terminated, but still carries out the act of agency, and the counterparty has reason to believe that the actor has the power of agency, the act of agency is valid. The significance of the apparent agency system is to protect and recognize the apparent authorization, protect the interests of bona fide counterparties, and the dynamic security of property transactions. In this case, as mentioned above, Dingdang Company knew or should have known about the change in the suffix of the contact email address designated by both parties, so it was difficult to determine that it was a bona fide counterparty in need of special protection under the law.

(The names of the people and companies in the article have been changed)

Transferred from: Judicial Case Study Institute of the Supreme People's Court, Beijing Haidian Court

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