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法律规定要履行合同

法律规定要履行合同

Law requires commitment to the contract

大中报在采访了安省能委会后发表了有关5年固定电气费账单的“不要轻易将水电费账单示与他人”一文后,了解到有些读者认为,他们只要通知能源供应商(比如,Enbridge及Toronto Hydro)要搬离现住所,就可轻易的将签署的5年固定电气费合同解除。

Following the Chinese News report “Understand the utility contract before signing it” -- which covered an interview with the Ontario Energy Board on the issue of signing a 5-year fixed rate utility contract -- Chinese News obtained information from some readers who are under the assumption that they could easily get rid of the 5-year fixed rate contracts by informing the utility supplier (such as the Enbridge or the Toronto Hydro) that they are moving out of the current address.

一位读者提议说:“在关闭了与供应商的账户后,我再以太太的名义根据原地址申请新帐户,这样一来,固定费用的合同就被取消了。”

“After closing my accounts with utility suppliers, I would then open new accounts with the same address under the name of my wife without the fixed rate contract being attached,” suggested one reader.

在多伦多购房的Lily Zhang女士(化名)与Universal Power在2006年3月签署了一份5年的煤气和电力保护计划。

Ms. Lily Zhang (not her real name), a homeowner in Toronto, signed a contract with Universal Power -- a utility retailer -- for the 5-year gas and electricity protection plan in March, 2006.

9月份,Zhang计划回国几个月,并将房子出租。她联系了Enbridge 和Toronto Hydro将电气费账单转到房客名下。Zhang说,她后收到Universal Power的电话,要求她提供搬家后的新地址。2007年5月,公司在一封来信中称,根据Zhang与公司签署的合同, Zhang要支付一笔$700元左右的“提前取消合同费”。

In September, Zhang planned to visit China for several months, and rented her home. She contacted Enbridge and Toronto Hydro to transfer the utility accounts to her tenant. Zhang said she then received phone calls from Universal Power, requesting her to inform the company of the new address that she will move to. A letter from the company in May, 2007 noted that Zhang is financially responsible for “Early Termination charges” - which are about $700 -- under the “Terms & Conditions of the Agreement” that she signed with the company.

Utility Power的高级副总裁Ray Samuels先生在电话采访中告诉大中报,作为能源零售商,Universal代其客户们向能源供应商定了购买五年能源的合同。

Ray Samuels, the senior vise president of Utility Power, told Chinese News through a telephone interview that, as an energy retailer, Universal has committed to the energy supplier to purchasing the utility for five years on behalf of customers.

Samuels表示,根据公司与客户签署的五年计划合同,客户在合同到期前单方取消合同可能会导致“提前取消合同费”。但如果客户搬家,则没有可适用的单一的条款。

Samuels indicated that under the terms and conditions of the fixed rate plan signed with a customer, the Early Termination Charges may apply if a customer cancels the contract before the term of the agreement ends. But when a customer is moving, there is no unique rule to follow.

 “当能源公司了解到客户要搬家后,如果客户的新地址仍属于公司可提供能源的地理区域范围内,客户须在新地址下继续履行合同。如果客户搬出了公司可提供能源的地理区域范围,根据公司以往的案例,公司不会向客户征收毁约费用。”

“Upon Utility being informed that a customer is moving, in the event that the customer is moving within the geographic area where the company is able to supply the utility, the contract will follow the customer to the new location. In the event that the customer can prove to us, by responding to our mails/phone calls that he/she is moving to a location where the supply is unable to reach, no liquidated damages will be charged, as proven by the cases in the past,” Samuels added.

Samuels 指出 “我们希望客户理解,虽然能源公司尽力为客户避免经济损失,但当客户搬出公司能提供能源的地理范围后,能源公司仍然要继续履行与供应商之间的合同。具体来说,在客户未卖房的情况下回到中国,根据合同条款,我们仍可向这一地址继续提供能源。”

“We want customers to understand that although we go above and beyond to avoid the customer from hardship, we still have to commit to our contract with the supplier if the customer moves out of the territory. Specifically, if a customer moves to China without selling the property, we could still provide utility to the location under a valid contract.”

Samuels表示,他完全了解一些客户竭尽全力想摆脱签署的合同的束缚,能源公司有特定的部门会追踪客户,以证实客户的确搬到公司无法提供能源的范围之外。但在大多数情况下,公司依赖于客户提供的真实的搬家证明文件,包括卖房证明,机票,特别重要的是,客户提供的将搬到某一特定地址的法律证词。

Samuels indicates that he is well aware of the fact that some customers have gone great lengths to get rid of the contracts after signing, and the company has a department which would track some customers to verify their claim that they have moved out of the geographic area. But in most of cases, the company relies on the authentic documents from the customer to prove that they have moved -- which may include the proof of selling the property, the plane ticket of traveling and, most importantly, a sworn affidavit of a customer stating that the customer will move to a specific address -- to determine if early termination charges will apply.

在律师面前宣誓签字而生效的法律证词,其法律效应是不可低估的。Samuels进一步表示,当客户可提供其要长期回中国的法律证词时,虽然不能100%保证,但公司会认证考虑是否放弃对其追究罚款。

No one should underestimate the legal power of an affidavit, a legal document that a customer is sworn in front a lawyer.  Samuels further says that in the event that a customer can provide an affidavit stating that he/she is moving to China, the company will give a strong consideration to relinquish the liquidated damage charges, although it has not happened 100 percent in the past.

在不对任何具体事件进行评论的前提下,布雷克律师行(Blake, Cassels & Graydon LLP)经验丰富的诉讼合伙律师Tony Wong告诉大中报读者,消费者提供的法律证词实际上就是消费者对证词中提供的信息的真实性的保证。

Not commenting on any specific cases, Tony Wong, an experienced litigation partner with Blakes (Blake, Cassels & Graydon LLP), explains to Chinese News readers that a sworn affidavit from a customer is a promise that what is stated in the affidavit is true.

Tony Wong律师解释说:“虽然不须向律师提供任何文件,律师也不需要证实证词中的信息的真实性,但证词必须由消费者在律师面前签字,律师必须核实证词的确是消费者亲自签署的。”

“While neither any document is necessarily provided to the lawyer, nor does the lawyer confirm the facts stated is true, the affidavit must be signed by the customer in front of the lawyer, who confirms that the affidavit is signed in front of him/her,” Wong informs.

Tony Wong律师指出,消费者不能为取消合同而在证词中撒谎。“如果消费者在证词中撒谎,并使商家发现证词中信息不属实,商家可以毁约或欺诈误导而将消费者告上法庭。一旦作为毁约的诉讼部分成立,商家可根据合同在未被取消情况下所应获得的收入寻求赔偿。”

Wong points out that customer must not make false statements in the affidavit for the purpose of getting out of their contract.  “If this is done and if the business finds out about it, the business can sue the customer for breach of contract or fraudulent misrepresentation.  As part of a lawsuit for breach of contract, the business can recover damages for the amount that it would have been entitled to receive under the contract if it had not been cancelled. “ 
 
Tony Wong律师进一步表示,虽然消费者对合同可能产生不满,但法律通常不会帮助签署了不利合同的一方摆脱合同约束。

Wong further indicates that although the customer may be unhappy with the contract, the law does not generally intervene to help people get out of bad contracts that they have negotiated. 

Tony Wong律师举例说,如果甲乙双方定了一个买房合同,甲决定以30万的价格购买乙的房产。甲后发现乙的房价仅值25万元。但甲却不能拒绝合同的执行。如果甲不肯付款给乙,乙可以毁约将甲告上法庭。

An example of two persons entering into a house-purchasing contract was given to illustrate Wong’s point: if A and B negotiate a contract for A to purchase B’s house for $300,000 and A later finds out that B’s house is only worth $250,000, A cannot refuse to perform the contract.  In the event that A refuses to pay, B can successfully sue A for breach of contract.

Tony Wong律师最后提醒消费者:“作为消费者,在合同签署前必须将一些问题搞清楚:合同规定的支出费用是多少,需要多少时间能将这些费用付清,以及是否在某种情况下,是否有权摆脱合同条款的束缚。只有搞清这些问题,消费者才能做出是否签署合同的明智决定。”

“What the customers must do is to ask questions before the contracts are signed.  Find out what the costs are, how long they are required to pay those costs and what rights they have -- if any -- to get out of the contract.  This will then allow them to make an informed decision as to whether to enter the contract,” Wong finally advises.
 
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